Scottish Court of Session Decisions

Article 19 of the convention annexed to the Sea Fisheries Act of 1883(46 and 47 Vict. c. 22), and incorporated in section 2 of that Act, provides—“When trawl-fishermen are in sight of drift-net or of long-line fishermen they shall take all necessary steps in order to avoid doing injury to the latter. Where damage is caused, the responsibility shall lie on the trawlers, unless they can prove that they were under stress of compulsory circumstances, or that the loss sustained did not result from their fault.”

On the morning of 22nd April 1892 the fishermen in the fishing-boat “Welcome

Home,” which had sailed from Port Errol, shot their lines at a distance of from six to ten miles off shore in a south-eastern direction from Buchanness close to a fixed “dan,” round which the steam-trawlers “Stephenson” and “Royal Duke” were fishing. A trawlers' dan is an anchored buoy with a stick on the top of it. At the end of the stick, which is from 6 to 14 feet above the water, are placed flags and at night a lighted lantern. When trawlers are engaged in fishing, their practice is to fix a “dan” as a mark to prevent their wandering, and then fish round and round the “dan” within a radius of half-a-mile till the supply of fish is exhausted.

The morning in question was bright and clear, and while the fishermen were shooting their lines the trawlers were engaged in fishing at a distance at which they could easily see what the fishermen were doing if a proper look-out was being kept on board the trawlers' vessels.

Soon after the fishermen had shot their lines, the steam-trawlers trawled over the ground where the lines were laid, and broke and seriously damaged them.

The crew of the fishing-boat raised an action in the Sheriff Court at Aberdeen against the masters as representing the owners of the two steam-trawlers. The sum sued for as the amount of damage was £24.

The defenders lodged defences, in which they alleged that they did not know that the pursuers had shot their lines in that place, and further averred “that if the pursuers shot their lines on the morning of 22nd April, they did so directly in the courses and in the way of the said steam-trawlers, and if any damage was caused to the pursuers' lines, it was caused by the pursuers' fault in so shooting their lines, and also in not indicating sufficiently and correctly both where the lines lay, and also that they had shot or were shooting them.”

A proof was led before the Sheriff-Substitute ( Robertson). The evidence was very conflicting, but brought out the facts above stated.

On 21st March 1892 the Sheriff-Substitute pronounced the following interlocutor—“Finds (1) that on the morning of 22nd April 1892 the pursuers shot their lines in the North Sea at a distance of from 6 to 10 miles off shore in a S.E. direction from Buchanness; (2) that the lines were so shot close to a “dan” or buoy, which had been fixed by the defender Masson; (3) that while the pursuers were so shooting their lines the defenders' respective vessels were engaged in fishing at a distance at which the defenders could easily see what pursuers were doing if a proper look-out was being kept on board defenders' vessel, it being broad daylight and the morning bright; (4) that soon after the pursuers' lines were shot the defenders' vessels trawled over the ground where pursuers' lines were, and broke and seriously damaged them; (5) that the defenders or those in charge of their vessels failed to take proper precautions to avoid injuring the defenders' lines in terms of Act 19 of the convention

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annexed to the Act 46 and 47 Vict. c. 22: And with reference to the foregoing findings in fact, Finds the defenders liable to the pursuer in the sum sued for, and therefore decerns against the defenders for the sum of £24 sterling, with interest, as concluded for: Finds the pursuers entitled to expenses,” &c.

On 20th July the Sheriff ( Guthrie smith) affirmed the judgment of the Sheriff-Substitute, with expenses.

The defenders appealed, and argued—Where trawlers put down a “dan” they were entitled to assume that no fishing-boat would lay its lines near the “dan.” The contention that when fishing-boats were in sight trawlers must leave the place over which they were fishing was absurd. It was contributory negligence on the part of the pursuers to put down their lines close to the defenders' “dan.” In an ordinary civil action for damages the onus which was laid on the trawlers by article 19 of the convention did not apply. The Sea Fisheries Acts of 1883 and 1885 introduced a code for marine offences, and referred only to criminal proceedings. Sec. 15, sub-sec. 1, of the Act of 1883 provided for the recovery of compensation for damage to property. If a fisherman wished to take advantage of the articles of the convention, he must be content with the remedy which the Act provided, and if he had recourse to an ordinary civil action, his case must be judged by the ordinary rules of evidence—Opinion of Lord M'Laren in Combe v. Renton, June 5, 1886, 13 R. (J.C.) 72. In Leslies v. Walker, December 18, 1886, 14 R. 288, the question of onus was not argued, the trawler having such a clear case.

Argued for the pursuers and respondents—The convention laid down rules with regard to fishing generally, and article 19 applied in a civil action for damages. All the witnesses agreed that the morning was a clear one, and the defenders were fishing in the usual way with buoys attached to the end of their lines. The trawler took no precautions to avoid injuring the fishing-lines, but trawled carelessly over the spot where they had seen the fishermen paying out their lines. They were therefore liable in damages. Lord Young's opinion in Combe v. Renton was in favour of the pursuer's contention, and in Leslies v. Walker it had been assumed that the onus imposed on trawlers under article 19 of the convention applied in civil actions.

At advising—