Scottish Court of Session Decisions

The s.s. “City of Edinburgh,” in charge of a licensed pilot within the compulsory pilotage district of the river Clyde, while being moved by two tugs out of Queen's Dock, Glasgow, and following the usual and proper course, was struck by a gust of wind, and in consequence collided with the s.s. “Glassford,” which was moored to the quay. The weather was gusty, but the gusts were not in character or intensity unusual or such as could not and should not have been contemplated and provided against. The collision might have been avoided had she let go her anchors, but owing to the windlass being under repair they were not available. The pilot had noticed this fact before he started the vessel, but the matter was not mentioned to him, nor was he consulted by the officer in command.

In an action at the instance of the owners of the “Glassford” against the owners of the “City of Edinburgh,” held that the latter were liable in damages, as they had failed to rebut the presumption of fault against them arising from their vessel being in motion and the other stationary, by showing either that the collision was due to inevitable accident or to the fault of the pilot.

The “Assyria,” July 10, 1903, 5 F. 1089, 40 S.L.R. 753, distinguished.

Messrs Mann, Macneal, & Company, Glasgow, owners of the s.s. “Glassford,” raised this action against The Ellerman Lines, Limited, Liverpool, owners of the s.s. “City of Edinburgh,” in the Sheriff Court at Glasgow, in which they sued for £1587, 14s. 6d., as damages caused by a collision between

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the two vessels on 21st September 1903 in Queen's Dock, Glasgow.

A proof was led before the Sheriff-Substitute ( Balfour), from which the following facts appeared. On Monday, 21st September 1903, about eleven o'clock in the forenoon, the steamship “City of Edinburgh,” which was laden and not under steam, was being towed out of the Queen's Dock to Prince's Dock, Glasgow, by two tugs, one of them ahead and one of them astern. She was, as required by the Clyde regulations, in charge of a licensed pilot, who was taking her out of the dock according to the usual course. While manœuvring to get through the entrance she was struck by a sudden gust of wind which caused her to collide with the s.s. “Glassford,” which at the time was lying moored to the quay. She struck the “Glassford” with very little force, and if there had been two feet more to spare there would have been no collision. There was a certain amount of discrepancy among the witnesses examined as to the condition of the weather at the time, but the bulk of the evidence was to the effect that the wind was gusty but was not in character or intensity unusual or such as could not and should not have been anticipated and provided against. The tugs were powerful vessels, and of the class usually employed for moving ships of the tonnage of the “City of Edinburgh.” The windlass of the “City of Edinburgh” was under repair, and the anchors which she usually carried were accordingly unavailable. If she had been able to let them go the collision would have been avoided. The pilot was aware of the fact that the anchors were not available, as he had noticed a part of the windlass being taken on board just before starting, but the officer in charge of the “City of Edinburgh” did not mention the matter to him nor consult him in any way as to the advisability of moving the vessel without her anchors. There was contradictory evidence as to how far it was customary to move ships from one dock to another without anchors.

On 8th July the Sheriff-Substitute pronounced the following interlocutor:—“Finds that on Monday, 21st September 1903, about 11 o'clock forenoon, the steamship Glassford,” a vessel of 311 tons gross register, was lying moored to the quay at the west end of the Queen's Dock, and to the north of the dock entrance and 20 feet past it, and she was run into by the steamship ‘City of Edinburgh,’ a vessel of 7803 tons gross register, and damaged: Finds that the ‘Glassford’ was lying with her port side to the quay, and the ‘City of Edinburgh,’ which was laden, was being towed out of the Queen's dock by two tugs, the ‘Vanguard’ and the ‘Warrior,’ the ‘Vanguard’ being ahead and the ‘Warrior’ astern: Finds that the ‘City of Edinburgh,’ which was drawing 27 feet water aft and 19 feet forward, had been lying on the south side of the tongue or centre quay, shown on the plan No. 7 of process, and she was in charge of a licensed pilot who was taking her out of the dock according to the usual course, which is to make for the dock entrance about north-northwest, and then straighten for the entrance by coming back to north-west: Finds that when the ‘City of Edinburgh’ was being squared up to the entrance, the ‘Vanguard’ being on the port bow and the ‘Warrior’ astern, a squall is said to have struck the starboard quarter of the ‘City of Edinburgh’ and brought her head to the north, and she ran into the starboard side of the ‘Glassford,’ but she struck the ‘Glassford’ with very little force and a space of 2 feet more would have avoided the collision: Finds that the squall struck the ‘City of Edinburgh’ when she was a distance of at least 200 feet from the ‘Glassford,’ and if an anchor had been dropped from the ‘City of Edinburgh’ when the squall struck her the collision would have been avoided: Finds that the tugs ‘Vanguard’ and ‘Warrior’ are powerful tugs, and they were strong enough to control the movements of the ‘City of Edinburgh’ on that occasion: Finds, however, that the anchors of the ‘City of Edinburgh’ were not available that morning, as the windlass had been sent ashore to get repaired, and part of it was taken on board just before the steamer started: Finds that the ‘City of Edinburgh’ is provided with patent anchors, and these are very often at the hawse pipe when the defenders' steamers are in dock, and if one of these anchors had been dropped from the port bow on the occasion in question the collision would have been avoided, and such anchors can be used in the dock: Finds that the defenders (on whom the onus lies) have failed to prove that a sudden, heavy, and unexpected gust of wind occurred which placed the ‘City of Edinburgh’ beyond the control of the tugs: Finds, under these circumstances, that the collision was caused through the failure of the defenders to have the patent anchors of the steamer ready for use, and that there was no such heavy squall of wind as to place the ‘City of Edinburgh’ beyond control of the tugs: Therefore finds the defenders liable in damages.” &c.

On 20th October 1904 the Sheriff-Substitute decerned against the defenders for payment to the pursuers of £1200.

The defenders appealed to the Court of Session, and argued—They were not liable, no one being to blame for the collision, which was caused by an inevitable accident due to a sudden and unforeseen squall. It was said that they were in fault and therefore liable because their vessel was not provided with anchors, but anchors were not part of the usual or necessary equipment of vessels while being towed from one dock to another by tugs. But even if the anchors ought to have been available, and there had been fault, the fault was not theirs but the pilot's, who alone was responsible for the navigation of the vessel, and ought not to have moved her without anchors if he thought them necessary. If a collision occurred while a vessel was in charge of a compulsory pilot through his fault the pilot and not the owners were liable— The London and Glasgow Engineering and Iron Shipbuilding Company v. Anchor Line (Henderson Brothers), Limited,

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“The Assyrian,” July 10, 1903, 5 F. 1089, 40 S.L.R. 753; Burrell, &c. (Owners of “Strathspey”) v. Macbrayne (Owners of “Islay”), July 3, 1891, 18 R. 1048, 28 S.L.R. 787; Greenock Towing Company v. Hardie, November 28, 1901, 4 F. 215, 39 S.L.R. 151; “ Argo,” 1859, Swaby's Adm. Reports, 462; Barclay & Company v. Hutchinson & Company (The “Springburn”), June 30, 1893 (unreported).

Argued for the respondents—There was a presumption of fault against the vessel which was moving, and the onus of proving that they were not to blame lay upon the appellants— Indus, L.R. 1887, 12 Prob. Div. 46. To escape liability they must prove that the collision was due either to inevitable accident or to the specific fault of the pilot, the mere fact that the vessel was in charge of a compulsory pilot being insufficient if the collision was not due to some fault of his— Clyde Navigation Company v. Barclay, 1876, L.R., 1 App. Cases 790. To sustain the defence of inevitable accident they must prove that the squall amounted to vis major, and that by no reasonable precaution could it have been coped with. They had failed to prove this. The anchors would have prevented the collision, and the fact that it may have been usual to move in dock without them would not exonerate those responsible if an accident happened—“ The Merchant Prince” [1892], Probate Division, 179. They had also failed to prove that the pilot was in fault. It was not suggested that he had taken a wrong course or committed any other mistake in navigation. It was said, however, he was to blame for want of anchors, but that was a defect in the ship's equipment and for such the owners and not the pilot were responsible, a vessel without anchors being unseaworthy—“ Christiania,” 1850, 7 Moore, P.C. 160; “ The Ripon,” 1885, 10 P.D. 65; “ The Livia,” 1872, 1 Aspinall 204; “ City of Peking,” L.R., 1889, 14 App Cas 40. The pilot was only responsible for navigation and not for equipment, but even if he were here to blame the only result would be that both he and the appellants would be liable—“ Iona,” 1867, 1 P.C.. Appeals, 426.