Judgment:
Lord Chancellor (Loreburn)—In this case it is admitted that the “Egyptian” was to blame for causing damage to the “Nelson,” but the question is whether the “Egyptian” can show that the damage naturally flowing from the injury has been increased beyond what it would otherwise have been by reason of the negligence of the owners of the “Nelson” or their servants. Now I for one should always scrutinise closely any contention by which a wrongdoer seeks to throw upon an innocent party any portion of the consequences which flow from the wrong. An admitted fault of the “Egyptian” does not place her in a very favourable position for escaping the actual consequences of the collision which took place. But in this instance two Courts — in particular the Court of first instance which saw the witnesses—have found, with the concurrence of the Elder Brethren, that there was negligence by a servant of the owners of the “Nelson,” by one Barron, whose neglect increased the damage and led to the sinking of the ship. It is a circumstance of importance that both Courts have found in the same way upon a question of fact, and that would naturally have very great weight with your Lordships according to your familiar practice. But I must say that I think that it is the case also—and I concur in that view of the facts with the learned Judges in both the Courts below—that the watchman, knowing of the collision, did not take proper and reasonable steps for the purpose of examining the part of the ship where the impact took place. Now I agree with the Court of Appeal that this duty was owed by Barron, the watchman, to his employers, and when he was required to examine the “Nelson,” knowing that she had been struck, he was required to do so within the scope of, and by reason of, his duty to his employers the owners of the “Nelson,” and I cannot agree with the view that Deane, J., took of the law. I cannot see how it can be said that he the less neglected his duty to the owners of the “Nelson” by reason of the fact that he had been guilty of a prior act of neglect towards them in taking control of the “Egyptian” and bringing her into dock. Accordingly I think that this appeal must be dismissed. But after the argument on the merits had been heard, I put to the counsel for the respondents a view, which I certainly entertain decidedly myself, that in this particular case it was extremely hard upon the owners of the “Nelson,” and that had it not been for the fact that the “Egyptian” had employed this man, while acting in service to others, to bring their vessel into the dock, the accident presumably would not have taken place at all. I put that view to Mr Batten with regard to the question of costs, and he has indicated on behalf of his clients that he would desire that the House rather should deal with that point. I have not suggested, and I do not desire to suggest, anything in the nature of moral obliquity on the part of the owners of the “Egyptian,” but I think that it is rather hard that they employed a servant of the “Nelson,” in effect, to ram the “Nelson,” and then seek to escape the consequences by saying that that same person failed also, in the subsequent hours, in his duty to the owners of the “Nelson” itself. Under all the circumstances, while your Lordships ought, I think, to dismiss this appeal, I think that there ought not to be any costs of this appeal upon either side.
Lord James of Hereford—I concur.
Lord Atkinson—My view of this case is, shortly, this:—It is admitted that the collision occurred through the negligence of those for the time being in charge of the “Egyptian” on behalf of her owners. It so happens that the person who was in charge, one Barron, was the plaintiffs' watchman. Some confusion has, I think, been caused in the case by reason of this double position which Barron occupied. In my view the case must be decided in point of law as if Barron had never been on board the “Egyptian,” with this qualification, that his position there fixed him with full knowledge of the fact that the collision had occurred, and of its nature. The defendants have pleaded that the plaintiffs could by the exercise of ordinary care have avoided the consequence of the defendants' negligence. The question as it appears to me is, Have they proved that plea? In my opinion they have. Barron, as watchman of the plaintiffs' ship, with the full knowledge that he had of the collision, was bound I think to exercise ordinary care to ascertain the nature of the injury done. He failed to exercise such ordinary care. Had he exercised it he must, I think, on the evidence, have ascertained this injury, what it was, and its true nature; and had he ascertained it, it is practically admitted that the mischief could have been remedied or prevented by plugging this hole. I fully concur in the announcement which the Lord Chancellor has made as regards the costs, because it is undoubted that the defendants in this action have inflicted serious injury upon the plaintiffs, and yet they escape from the consequences of that injury by reason of the negligence of the plaintiffs' servant, whom they had—I think it is not using an extreme expression to say—decoyed away from his proper business and used for their own purposes. I am very glad that the costs of this appeal should not be given to
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those who have been successful under such conditions.
Lord Shaw—In this case a slight injury was done to the steamship “Nelson” by drawing a rivet eyehole in her starboard quarter out of its position and into the body of the ship. That was a slight injury, the responsibility for which is acknowledged by the defendants, and that has been the subject of no litigation. Following it, however, another and more serious occurrence took place, viz., the sinking of the vessel. In these cases two principles, too often put separately but really conjoined, may be stated, viz., that the defendants are liable for the damage which is the natural and direct consequence of their wrongful act; that would cover the slight injury to which I referred. The second principle is, that the defendants are not liable for any further damage which could have been avoided or minimised by the exercise of reasonable care on the part of the plaintiffs. This is really not a separable proposition from the other in the sense of being independent of it; it is only a development or corollary of the former proposition, because the latter further damage is caused not as the natural and direct consequence of the defendants' act but by reason of the neglect of that care which was reasonable in the circumstances on the part of the owners of the “Nelson.” That neglect is found to be established in fact. It led — and casually considered it alone led—to the sinking of the ship, and accordingly the responsibility for it cannot be placed upon the defendants. These two things have been properly distinguished by the owners of the “Egyptian” throughout. Their offer of compensation, limited to the slight injury which was the result of their negligence, has been justified by the result of this litigation, but the further damage now claimed has not been found due. In my opinion this result is correct, as the further damage fell on the plaintiffs' ship by reason of the plaintiffs' own neglect already referred to. On the matter of costs, I agree that the attitude taken very properly by the respondents' counsel at your Lordship's Bar has enabled us to do what, underneath all these transactions, may be considered to be a substantial act of justice.
Lord Mersey—I concur.
