Scottish Court of Session Decisions

Renton v. Riddell & Anor [2002] ScotCS 112 (18th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD MENZIES in the cause RODERICK JAMES RENTON Pursuer; against ANDREW RIDDELL and ANOTHER Defenders:   ________________

 

 

Pursuer: Weir; Morton Fraser

Defenders: Howie Q.C.; Henderson Boyd Jackson, W.S.

18 April 2002

1. This action began as an admiralty action in rem and in personam, but before the proof the pursuer intimated that he did not insist on his first conclusion, so the action proceeded as an admiralty action in personam. In the action the pursuer seeks reparation from the second defender for loss, injury and damage sustained by the pursuer arising from a collision between the yacht "Myscal" and the yacht "Highland Storm" which occurred just before noon on 2 November 1997 in the Largs Channel, between Largs and the island of Cumbrae. The master of the Highland Storm was the pursuer, and the master of the Myscal was the second defender. A collision occurred between the bow of the Myscal and the starboard stern quarter of the Highland Storm, which resulted in (relatively minor) damage to the Highland Storm, and in a complex fracture of the distal radius of the pursuer's dominant right hand. The parties were in agreement as to quantification of the pursuer's loss, but remained in dispute regarding fault and contributory negligence. The fact of the collision was not disputed, but the circumstances in which it occurred were disputed.

The circumstances of the collision

2. There were three conflicting versions of events leading up to the collision between the two vessels. The first came from the pursuer himself. The pursuer was acting as skipper of the Highland Storm on the day in question, and was sitting beside the helmsman, working the main sheet. The other members of the crew of the Highland Storm were Alistair Buchanan, who was acting as bow lookout, Geoffrey Forbes, who was the helmsman, and Anibale Coia. The pursuer stated that the collision occurred while the Highland Storm, the Myscal and other yachts were getting into position for the start of a race which was due to begin at noon. He stated that the start line was north-west of the entrance to Largs marina, approximately 400 to 500 yards north of that entrance and about 100 yards offshore. He stated that the horizontal dotted line in the top left quadrant of the small sketch plan which forms part of number 6/11 of process accurately shows the start line of the race. The race was a one class start, with at least 10 and perhaps as many as 15 yachts taking part. The collision occurred less than 10 minutes (and possibly less than 5 minutes) before the race was due to begin. The pursuer stated that the wind strength was between 11 and 12 knots - what he described as a "fairly gentle breeze" - and its direction was from the north north-east. He stated that there was a gully in the hills above and behind Largs marina which caused a wind from a generally easterly direction to turn and funnel across the Largs Channel at that point from generally a more north-easterly direction. He stated that the weather was clear and fine at that time, and visibility was good. The Highland Storm was on a starboard tack, steering approximately a north north-westerly course, and was fairly close hauled. Although the pursuer had not been responsible for the preparation of either the large or small sketch plans which formed number 6/11 of process, he stated that they were a reasonably accurate indication of the course taken by the Highland Storm in the minutes before the collision, although he thought that Highland Storm bore away (that is to say, turned away from the wind) somewhat earlier than indicated in the sketches. She would have arrived at the start line too soon, so the pursuer was manoeuvring to reach the start line at the optimum moment. When Highland Storm was at about position 1 on the large sketch plan, the pursuer saw the Myscal, which was then on the port tack heading approximately east north-east some 10 to 15 boat lengths away (a boat length being in this instance 33 feet). When he first saw her, Myscal appeared close hauled, with her sails tight and she was quite heeled. The wind was hitting Myscal from her port bow, and she was the "keep clear" boat in terms of the Racing Rules of Sailing 1997-2000 (number 7/6 of process). When Highland Storm was at about point 2 on the large sketch plan Mr Buchanan shouted back to the pursuer to alert him to the presence of Myscal. The pursuer, whose view of Myscal was obscured by the sails of Highland Storm, went to the low side of the boat to check Myscal's position. He estimated that Highland Storm was sailing at about 41/2 knots at that time (if she reached 51/2-6 knots the pursuer was happy with her performance, and she never reached 8 or 9 knots). The pursuer instructed Mr Forbes to bear away, and they were doing this throughout points 2, 3 and 4 on the large sketch plan. They continued to bear away, and the pursuer expected to see Myscal in front of him, but did not. He instructed that Highland Storm should bear away further, and next saw Myscal at point 7 on the sketch plan. At that time she was still on the same course as she had previously been. The pursuer was sure that Myscal was still sailing - her sails were out on the correct side of the boat (ie. the starboard side), and appeared full - the pursuer saw and heard no sign of sails "flogging" or flapping, which he would have expected to notice if the Myscal was engaged in reefing her sails. He confirmed that when Highland Storm was at point 7 on the large sketch plan, Myscal was also at point 7 on her port tack. At that time the vessels were not on a collision course - they would have passed each other's starboard side. However, when the pursuer saw Myscal he instructed Mr Forbes to bear away further, "just to be sure", so that the vessels would pass by each other at a distance of about 60 feet. As Highland Storm had turned away from the wind her speed had dropped, but it was clear to the pursuer that the vessels were going to miss each other by a substantial margin. The boom of Highland Storm was well out to the port side, at about 70 degrees. Myscal then suddenly turned towards Highland Storm. The pursuer stated that Highland Storm did not have much room left to manoeuvre without jibing, and that an unexpected jibe would carry with it the risk of serious injury to a member of the crew. He could see no reason why the Myscal should make this manoeuvre - she turned sharply towards Highland Storm, and over a few seconds she turned through about 90 degrees, from a course that would completely miss Highland Storm to one which would hit her. The pursuer was absolutely clear that she was sailing at that time. At point 9 he could see the helmswoman of Myscal, and he knew that the crew of Myscal could see Highland Storm. He said that there was nothing further that Highland Storm could do, but that Myscal was far enough off to avoid a collision - she had to continue her sharp alteration of course in order to collide with Highland Storm. Highland Storm continued to turn away, but Myscal continued to turn towards Highland Storm and struck her at an angle of between 70 and 90 degrees. The pursuer took the photographs which formed 6/8 of process, which showed damage to the pushpit stanchion of Highland Storm. The first contact between the vessels was when the pulpit of Myscal struck the guard rail of Highland Storm, and Myscal then continued until there was contact between her bow and the tow rail of Highland Storm. The pursuer stated that Myscal's manoeuvre was quite unexpected, and he was incredulous that a give way boat would make a turn of 90 degrees towards a stand on vessel such as Highland Storm. He repeated that if Myscal had not turned, the vessels would not have struck but would have passed some two to three boat lengths apart. The pursuer did not realise that there would be a collision until the very last minute - he said that if Myscal had pushed their helm over they would have missed Highland Storm, right up to the very last second. If they had done anything other than steered towards Highland Storm there would have been no collision.
3. In cross-examination the pursuer stated that it should be obvious to other vessels that a vessel was reefing its sails because its sails would be flapping vigorously. In a 10 or 12 knot wind he thought that they would be very obviously flapping. He was sure that Myscal was sailing, and was not reefing, in the minutes and moments before the collision - when he saw her, both sails were full and drawing, and there was no creasing or flapping. Myscal was certainly not head to the wind, nor was her boom amidships - her boom was on her starboard side, fairly tight in. He was confident that the collision occurred approximately where shown on the small sketch which forms number 6/11 of process, and was absolutely sure that it did not occur between the Fairlie Nato Pier and the marina.
4. The evidence of Alistair Buchanan, who was the bow look-out on Highland Storm that day, was consistent with details of the pursuer's evidence, although Mr Buchanan's recollection was on his own admission not perfect and his duties as bow look-out did not require him to have such an overall view as the pursuer. In several important aspects however he did support the evidence of the pursuer. He was definite that there was a northerly element to the wind direction - it was either north north-east or north-east, but not easterly. He was also certain that the collision occurred to the north of the entrance to Largs marina, and definitely not between the Fairlie Nato Pier and the marina. He remembered that Highland Storm was on the starboard tack and Myscal was on the port tack, and that he had a clear view of Myscal. He reported her presence to the pursuer, and expected Myscal to pass Highland Storm starboard to starboard. He expected no problem with her, and did not see her as a collision threat. He then said that, "all of a sudden Myscal seemed to turn towards us - it was almost more difficult for Myscal to hit us than to avoid us". He clearly recollected that Myscal was sailing in the period immediately before the collision - her sails were not flogging, she was moving through the water, and he did not see her reduce sail. He estimated the speed of Highland Storm at about 4 to 5 knots and the distance between the two vessels when he first saw Myscal at approximately 300 metres. He was quite sure that Myscal was sailing at the point of impact, and thought that it was almost as if she was steering a course to hit Highland Storm.
5. A somewhat different version of the circumstances of the collision was given by Geoffrey Forbes, who was the helmsman of Highland Storm at the time, although many of the details of Mr Forbes' recollection were consistent with the evidence of the pursuer and Mr Buchanan. His clear recollection was that the collision occurred to the north of the breakwater entrance to Largs marina, just to the south of the race start line. He placed this at approximately level with the figures 3 5 which are level with and to the right of the word "foul" in a circle on the admiralty chart which forms part of number 6/11 of process. He was clear in his recollection that the collision was not further south, between the Fairlie Nato Pier and Largs marina. He also agreed with the pursuer and Mr Buchanan that the collision occurred shortly before the race began - after the 10 minute gun had gone, but before the 5 minute gun. When he first saw Myscal, she was about 15 boat lengths away, and was on the port tack, while Highland Storm was on the starboard tack. Although he could not estimate the wind speed, it was coming across the starboard side of Highland Storm, towards the middle or upper quarter - that is, from slightly ahead of them. All the boats in the race were in the vicinity of the start line, which was not far away, and Highland Storm was attempting to obtain optimum position, to the south of the start line. However, Mr Forbes' recollection of the direction in which Myscal was travelling differed from that of the pursuer and Mr Buchanan. To the best of his recollection, when he saw Myscal in the minutes before the collision she was off Highland Storm's port bow "at 11 o'clock" and approaching Highland Storm on a port tack. He thought that Myscal was on a south south-easterly course - approximately travelling in the opposite direction to Highland Storm. In accordance with the pursuer's instructions, Mr Forbes bore away to port in order to give a clear margin between Highland Storm and Myscal, but according to his recollection Myscal started to turn to starboard - "effectively they turned into us, and they struck us on the starboard quarter". He thought that Myscal only started her turn to starboard about 20 seconds before the point of impact, and he only appreciated the risk of collision in the last 10 seconds or so, because all that Myscal had to do in order to avoid a collision was to turn to port. When Myscal began to turn towards Highland Storm, the vessels were only two boat lengths away, and had been travelling on parallel lines. If Myscal had not turned to her starboard, the two boats would have passed each other approximately two boat lengths apart. His recollection was that Myscal collided with Highland Storm at an angle of approximately 120 degrees - ie. Myscal had travelled in an arc and collided slightly from Highland Storm's stern (although when confronted with photograph A of number 6/8 of process Mr Forbes conceded that it appeared as if the angle of collision was somewhat less than 90 degrees). At no stage did he see Myscal reduce sail, nor did he see her sails flapping or flogging, nor did he see her stationary in the water. He was quite clear that she was not reefing her sails, but was sailing. All that Myscal had to do in order to avoid a collision was to turn to her port and she would have missed Highland Storm. Highland Storm could not bear away any further because she might have jibed, and he was aware that the risk of jibing was a possibility. With regard to Highland Storm's speed, he had never known her to achieve 9 knots, and did not think that she was a very good racing boat.
6. In cross-examination, he was quite definite that the collision did not occur further south than the area which he had indicated, and particularly not between the Fairlie Nato Pier and Largs marina. He was also clear that the distance between the vessels when he first saw Myscal was about 15 boat lengths or thereabouts, and that Myscal was definitely not in the process of reefing. It was put to him that Myscal's head was into the wind, and she was doing no more than 1 or 2 knots and lowering sail, and Mr Forbes rejected that totally - he said that Myscal was sailing, and "not at a negligible speed".
7. There were therefore important areas in which the version of events described by the pursuer and Mr Buchanan coincided with Mr Forbes' version. The main area of difference was that Mr Forbes recollected that Myscal was approaching Highland Storm from approximately north north-west (that is, almost directly in the opposite direction from Highland Storm), whereas the pursuer and Mr Buchanan recollected that Myscal was approaching from approximately south-west. A third version of events came from the evidence of the second defender, who was the skipper of the Myscal. His recollection of the circumstances leading up to the collision was strikingly different from that of the three witnesses who were on board Highland Storm. Mr Riddell could not remember the direction in which the race was to be run, or the race course, but he accepted that the start line was somewhere to the north of the Largs Yacht Haven entrance, approximately level with the figures 3 5 parallel to the word "foul" in the admiralty chart which forms part of number 6/11 of process. Although he could not remember what direction the race course was to be sailed in, he remembered that the start line was to be crossed in approximately a north-westerly direction. He recollected that the collision occurred when the vessels were between the north end of the Fairlie Nato Pier and the southern breakwater of Largs Yacht Haven, approximately level with the Kell Burn which is marked to the right hand side of the said admiralty chart. The vessels were about 100 yards offshore, and the water was quite shallow there. He estimated that they were between three quarters of a mile and one mile from the start line (although when it was suggested to him that it might be perhaps half a mile from the start line he indicated that he would go along with that). The strength of the wind was no more than force 2 to 3 (although it is to be noted that in the Preliminary Act for the defenders the strength is indicated at approximately force 3 to 5). The direction of the wind was easterly, if he remembered rightly, although it may have been north or south of east. He accepted that there was a gully known as the Brisbane Gully which tended to funnel and focus an easterly wind into a north north-easterly direction, but he thought that the direction of the wind at the point of collision was generally easterly. When he first saw Highland Storm she was between one third to one quarter of a mile from Myscal (although in the preliminary act the distance is stated at approximately half a mile). Myscal was not travelling fast because she was getting ready to reef her genoa, and was heading into the wind in order to reduce her canvas area to enable reefing to take place. He considered that another vessel would be able to tell that Myscal was reefing, and that it would have been evident to Highland Storm that Myscal was reefing because she was slow in the water, and her sails were flapping in the breeze and loose. He estimated the speed of Myscal at the time of the collision at between 11/2 and 2 knots.
8. I found his evidence regarding the position and direction of Highland Storm confusing. He stated in examination-in-chief that Highland Storm was heading north north-east, from a position to the south of Myscal, but he agreed in re-examination that Highland Storm's course was north north-west, and that if he had referred to north north-east earlier this was a mistake. In examination-in-chief he stated that Myscal was always the inshore boat, that is to say that from the moment that she saw Highland Storm until the collision Myscal was closer to the mainland than Highland Storm. He reiterated this evidence in cross-examination; however, he maintained that Highland Storm was travelling from Myscal's south-east and was hearing in a north north-westerly direction. According to his recollection Myscal was face into the wind, with her bow pointing approximately eastwards, and Highland Storm was approaching from a south-easterly direction apparently intending to pass to the stern of Myscal. In cross-examination he did not disagree that in the period before the collision Highland Storm was travelling at approximately 4 to 5 knots (although in box 10 of the Preliminary Act for the defenders Highland Storm's speed when first seen was estimated at approximately 8 or 9 knots). Myscal was making approximately 11/2 to 2 knots and was engaged in reefing, with her genoa flapping in the breeze and loose, when a gust of wind caught her and pulled her bow round to her starboard by some 50 or 60 degrees. This caused the starboard stemhead fitting of Myscal to collide with Highland Storm, approximately 1 metre back from midships on Highland Storm, at an angle of contact of between 15 and 20 degrees. He was sure that the collision did not occur at 90 degrees or 120 degrees, but was more of a glancing blow (although he accepted that Myscal's bow may have collided with Highland Storm further towards her stern, around the pushpit, and his recollection was not exactly clear). When he was asked in examination-in-chief whether he was quite sure that this was what had happened, he replied that he would like to think so. If there had been no gust of wind he suspected that Highland Storm would have passed behind Myscal. When asked what effect there was on Myscal's steerage and manoeuvrability as a result of her bearing into the wind and reefing her genoa at a speed of 11/2 to 2 knots he stated that her steerage would not be affected and "you're going to have control of the boat - reefing should cause no reduction in the manoeuvrability of the vessel", and the only restrictions on his movement were caused by the depth of the water.
9. I have little hesitation in preferring the evidence of the pursuer to that of the second defender and (in so far as his evidence was inconsistent with that of the pursuer) that of Mr Forbes. I should indicate immediately that I did not consider that any of the witnesses was being deliberately untruthful - on the contrary, I considered that all of the witnesses were doing their best to give a truthful recollection of the events leading up to the collision. However, the collision occurred on 2 November 1997, almost four and a half years before the proof - it is inevitable that after the passage of such a time, and in the circumstances where vessels are manoeuvring for position before a race, that recollections will differ. I found the pursuer to be not only a credible but also a reliable witness, and his evidence was supported in important respects by the evidence of both Mr Buchanan and Mr Forbes. The pursuer and Mr Buchanan agreed that the direction of the wind at the time of the collision was north north-easterly, and although Mr Forbes could not state this explicitly, it is clear from the rest of his evidence that this must have been the direction of the wind. This is also supported by the evidence of Christopher Nichol, who gave expert evidence on behalf of the pursuer, and who was very familiar with the Largs Channel and commuted across it every day, and spoke of the effect of the Brisbane glen which funnelled winds which were generally easterly more into a north-easterly or north north-easterly direction. I accept the evidence of the pursuer, Mr Buchanan and Mr Forbes that the collision occurred some distance to the north of the entrance to Largs Yacht Haven, in the vicinity of the figures "3 5" level with the word "foul" on the admiralty chart which forms part of 6/11 of process. I also accept that, although the large sketch plan which forms part of number 6/11 of process is not an entirely accurate representation of the events leading up to the collision, it gives a general indication of what is likely to have occurred. In particular, I accept that Highland Storm was on the starboard tack heading in approximately a north north-westerly direction, and that Myscal was some 10 to 15 boat lengths away in a generally westerly bearing from Highland Storm, and sailing in approximately an east north-easterly direction. I accept that at the time of the collision, and in the minutes and moments running up to it, Myscal was sailing, and that she did not have her head into the wind nor were either of her sails flapping or "flogging". For whatever reason, Myscal made a sharp turn to her starboard at a point when she was some two boat lengths from Highland Storm, and it was this manoeuvre which resulted in the collision. I am satisfied that there was nothing in the appearance of Myscal which ought to have alerted the skipper and crew of Highland Storm to the fact that Myscal might execute this turn to starboard, nor was there anything to indicate that Myscal was reefing, out of control or had loss of manoeuvrability.
10. As I have indicated, many aspects of Mr Forbes' evidence coincided with the evidence of the pursuer and Mr Buchanan. The principle difference is that Mr Forbes recollected that Myscal was travelling in approximately the opposite direction to Highland Storm, from a generally north north-west direction. Having regard to the damage to the starboard stern pushpit of Highland Storm, which suggests an angle of collision of between 70 degrees and 90 degrees, together with the direction of the wind and the fact that at the time of collision Highland Storm was bearing away hard to port and there was a real risk of her jibing, I have reached the view that Mr Forbes must have been mistaken in his recollection of the angle of Myscal's approach.
11. I found the evidence of the defender to be unreliable and confusing. I was not prepared to accept that Myscal was heading into a generally easterly wind, at a speed of 11/2 to 2 knots, and engaged in reefing, standing the evidence of the other witnesses. (I should say that, in light of the evidence of the defenders' own expert witness Mr Napier, even if the collision had occurred in the way described by the second defender it appears that the second defender would have been at fault).
12. I therefore conclude that the collision occurred in the way described by the pursuer in his evidence. I observe that this evidence was very substantially consistent with the version of events set out in the Preliminary Act for the pursuer.

Liability

13. In light of my findings as to the circumstances of the collision, I have little difficulty in finding the second defender as skipper of the Myscal primarily liable for the collision (subject to any considerations of contributory negligence, which I address below). Indeed, it was the evidence of the defenders' own expert witness Mr Marshall Napier, who was present in court throughout the rest of the evidence, that Myscal was out of control, and that this is not seamanlike. On whatever version of events as to the circumstances of the collision, Mr Napier considered that Myscal was primarily at fault. Indeed, that was accepted by Mr Howie in his submissions on behalf of the second defender, if the Court was entitled to disregard any evidence which was in conflict with the pursuer's Preliminary Act. He referred me to Lord Grieve's observations in Morrison v Scott (The Scottish Maid), 15 June 1979, unreported but referred to in paragraph 46.6.1 of the annotated Rules of the Court of Session. On this point I am satisfied that there was no substantial conflict between the evidence which the pursuer gave in Court and the details given in his Preliminary Act. Such differences as there were appeared to me to be of a minor degree and involving relatively minor detail. There was no question of the pursuer seeking to controvert any statements in his Preliminary Act in his evidence: per contra it appeared to me that in its essentials and in almost all of its details the pursuer's evidence was on all fours with the narrative in his Preliminary Act.
14. Subject to this point, Mr Howie accepted that I should find Myscal primarily at fault, and that the majority of the blame for the collision should rest with Myscal. In light of all of the evidence, I have no hesitation in accepting that this was a well-founded concession. I am satisfied that the second defender as skipper of Myscal was primarily liable for the collision.

Contributory Negligence

15. For the second defender Mr Howie submitted that there were two elements to contributory negligence in this case - (1) contributory negligence of the pursuer in failing to take avoiding action to prevent the collision, and (2) contributory negligence on the part of the pursuer in putting his dominant right hand up to fend off Myscal as she struck Highland Storm. I deal with these separate cases of contributory negligence as follows:-

(1) Failure to take avoiding action

16. Mr Howie accepted on behalf of the second defender that the 1997-2000 Racing Rules of Sailing (number 7/6 of process) applied at the time of this collision, and that Highland Storm was the right of way boat, but he maintained that it was clear from the rules that a right of way vessel cannot do what it likes. Rule 14 provided inter alia that "a boat shall avoid contact with another boat if reasonably possible", and that the evidence indicated that Highland Storm could have taken steps to attempt to avoid this collision. Mr Howie accepted that nothing on Highland Storm's part could be criticised until (at most) the last 20 seconds before the collision occurred. However, he submitted that Mr Napier's evidence indicted that the pursuer as skipper of Highland Storm must bear a share of the blame for the collision.
17. Mr Napier suggested that Highland Storm was at fault in several ways. He thought that there were too few crew on board, the helmsman was inexperienced in that he had not raced before, there was a failure to communicate by shouting to Myscal before the collision, and there were other shortfalls which, if Highland Storm had referred the collision to a protest committee, would have been likely to result in the protest committee finding that Highland Storm was partially responsible for the collision. Ultimately, as I have indicated, Mr Howie did not rely on any failures on the part of Highland Storm prior to the last 20 seconds before the collision, but he did rely on Mr Napier's evidence that the pursuer should have hailed Myscal, and also that he should have "luffed" Highland Storm just before the collision. This manoeuvre would have involved the pursuer in causing Highland Storm to turn sharply to her starboard when it became apparent that Myscal was likely to collide with her stern area, which would have had the effect of swinging Highland Storm's stern away from Myscal and might possibly have averted the collision.
18. I am not persuaded by this argument. With regard to the failure to shout or hail Myscal, the evidence of those on board Highland Storm who looked at Myscal just before the collision was to the effect that the helmswoman of Myscal appeared to be aware of the presence of Highland Storm and that she was looking at them. They formed the impression (no doubt mistakenly) that Myscal was steering deliberately at them. In these circumstances, even if there was time to hail Myscal, it does not seem to me that shouting at the helmswoman or skipper of Myscal would have averted the collision. On the evidence of both the second defender and Mr Napier, Myscal was out of control at that time, and it does not seem to me that a shout from Highland Storm would have reduced the risk of collision. I also have difficulty in accepting Mr Napier's evidence that the pursuer should have turned Highland Storm sharply to starboard immediately before the collision. I accept the evidence of those on board Highland Storm that up until the very last moment they expected Myscal to take avoiding action by turning to her port, or at the very least by ending her starboard turn. Mr Napier, who was a man of very considerable experience in racing yachts, said that he would have luffed hard to starboard, but it does not follow that it was negligent on the part of the pursuer to fail to do so. The pursuer was faced with a crisis, and he chose to bear away as far as he could to Highland Storm's port. In all the circumstances I do not consider that he could be described as being at fault in doing so. Even Mr Napier accepted that luffing hard to starboard might not have avoided the collision. Moreover, the defender stated in examination-in-chief (at between 12.50 and 12.55 on the third day of the proof) that he suspected that it was correct that there were no steps which Highland Storm could have taken to avoid the collision, because it all happened so quickly. He was asked by his counsel whether Highland Storm should have altered course to avoid him, and he replied "probably not, no". Moreover I have no note, nor any recollection, that it was put to the pursuer in cross-examination that he ought to have luffed or turned hard to starboard immediately before the collision, and he was therefore not given the opportunity to comment on what was to be the main thrust of Mr Napier's evidence in this regard. It was put in cross-examination to the pursuer's expert witness, Mr Christopher Nicol, who agreed that luffing to starboard might have avoided the collision, but only if the pursuer had expected Myscal to turn towards Highland Storm and had time to assess the situation and instruct the helmsman to carry out this manoeuvre. In light of all the evidence, I do not consider that the pursuer had any reason to expect that Myscal would turn sharply to her starboard as she did, nor that she would continue in that turn and take no steps to avoid Highland Storm. By the time this became apparent, there was no time for the pursuer to instruct the helmsman to luff, and in any event I am not satisfied on the balance of probabilities that luffing to starboard would have averted the collision. In all the circumstances I am not persuaded that the collision was caused to any extent by fault on the part of the pursuer.

(2) Contributory negligence on the part of the pursuer in putting his right hand up to fend off Myscal

19. The pursuer gave evidence that immediately before the collision he was sitting on the starboard side of Highland Storm towards the stern, facing towards the middle of the boat with the helmsman standing right beside him. He was sitting at a point marked with a cross on photograph A of number 6/8 of process. He had turned away from the imminent collision to ease the sheet, and then turned round and found the pulpit of Myscal coming through the guard rails of Highland Storm. There was still way on Myscal, and her bow had not yet collided with the tow line of Highland Storm - she kept on coming towards the pursuer "far enough to make me put my hand up because I thought it was going to hit me". He was asked in examination-in-chief why he put his hand up, and he said that it was an instinctive thing. He knew not to stick his hand out, but he stuck it out. In cross-examination it was put to him that this was "more than passing careless", and he accepted that "you could argue that, but it was instinct". He denied that he was trying to hold off the boat, and when asked what he was trying to do that it was nothing sensible - the real collision was tow rail to tow rail, probably after his wrist was broken. He said that Myscal did not seem to stop - the pulpit was coming through the wires and was still coming - he expected the boat to collide, and did not expect the projection to keep coming on, and he thought that is what he reacted to. In re-examination he was asked whether this all happened quickly and he replied, "Yes - Myscal kept coming through the wires until the tow rail hit".
20. Mr Napier, who heard the pursuer's evidence, was of the opinion that it must have been obvious that there was going to be a collision, and the pursuer must have decided to fend off Myscal. He therefore considered that this was a calculated decision, and was not instinct. He criticised this as a matter of seamanship, and considered that he was at fault.
21. The pursuer accepted with hindsight that it was a stupid thing to do to put his right hand out in these circumstances. However, I accept that everything happened very quickly at the moment of collision, and that the pursuer acted entirely instinctively in putting his hand up when the bow of Myscal kept coming towards him. I do not accept that this was a calculated decision in an attempt to fend off Myscal - it was an instinctive reaction in a moment of crisis. In these circumstances I do not accept that the pursuer can be criticised for putting his hand up to protect himself.
22. It follows that I consider that the second defender was wholly to blame for both the collision and for the consequent fracture to the pursuer's wrist, and that no deduction falls to be made in respect of contributory negligence.

Damages

23. The parties were agreed as to quantification of damages in the event of the second defender being found liable to make reparation to the pursuer. They agreed solatium at £11,200 inclusive of interest, loss of employability at £10,000 and cost of repairs to Highland Storm at £147, resulting in a total of £21,347. A joint minute to that effect was lodged in the course of the proof.

Conclusion

24. For the foregoing reasons, I am satisfied that the second defender is liable to make reparation to the pursuer in respect of the collision referred to on record, and that no deduction should be made in respect of contributory negligence. I therefore repel the pleas-in-law for the defenders; of consent grant the defenders absolvitor in respect of the first conclusion of the summons; and grant decree for payment by the second defender to the pursuer of the sum of £21,347 with interest at the rate of 8 percent a year from the date hereof until payment.