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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cambo Shipping Co., Ltd (Owners of the S.S. "Rossetti") v. Dampskibsselskabet Carl of Copenhagen (Owners of S.S "Magnus") [1919] ScotLR 59 (05 November 1919) URL: http://www.bailii.org/scot/cases/ScotCS/1919/57SLR0059.html Cite as: [1919] SLR 59, [1919] ScotLR 59 |
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Two ships collided on a very bad night. The collision was caused by the “Magnus,” which was light, dragging her anchors and coming down on the “Rossetti,” which was holding to her moorings. When the “Magnus” was dragging her anchors she had steam up but did not use it. By failure to use her steam she omitted to take a reasonable measure which might have avoided the accident. In an action for damages by the “Rossetti” against the “Magnus” the latter led evidence to the effect that the steam had not been used because those in charge of the “Magnus” did not and could not know owing to the darkness and the weather that they were dragging their anchors. That evidence was uncontradicted. The Lord Ordinary, without expressing any opinion as to whether he credited that evidence or not, accepted an opinion expressed by the nautical assessor to the effect that it would not have been difflcult for those on the “Magnus” to know that they were dragging their anchors. He found the “Magnus” liable in damages. Held that it was for the Lord Ordinary and not for the nautical assessor to pronounce upon the trustworthiness of that evidence, and to say whether or not the master of the “Magnus” ought to have known when his anchor began to drag; and, on the ground that the evidence did not establish fault, the “Magnus” assoilzied.
The Cambo Shipping Company, Limited, owners of the s.s. “Rossetti,” pursuers, brought an action against Dampskibsselskabet Carl of Copenhagen, owners of the s.s. “Magnus,” defenders, concluding for £2000 damages in respect of the loss occasioned by the collision of the two ships in Lerwick Harbour. The defenders counterclaimed. and stated the damage to their vessel at £3515, 14s. 6d.
The pursuers pleaded, inter alia—“1. The pursuers having suffered loss and damage to the amount sued for through the fault or negligence of the defenders or those for whom they are responsible, are entitled to reparation therefor. 3. The defenders are not entitled to decree for their counter-claim or any part thereof in respect that ( a) their averments in support thereof are unfounded in fact, and ( b) any loss and damage suffered by them was caused or at least materially contributed to by their own fault and negligence.”
The defenders pleaded, inter alia—“3. The said collision not having been caused by the fault of the defenders, they should be assoilzied from the conclusions of the summons. 4. The said collision having been caused or contributed to by the fault of the pursuers, the defenders are entitled to absolvitor. 5. The defenders' vessel having been damaged in said collision through the fault of the pursuers, the defenders are entitled to decree for the sum counter-claimed in name of damages.”
On 12th December 1918 the Lord Ordinary (
Hunter ), after a proof, found that the s.s. “Magnus” was alone responsible for the collision and continued the cause, granting leave to reclaim.Opinion (from which the facts of the case appear):—“The question that has to be determined in this case is as to liability for
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a collision which occurred in Lerwick Harbour between the ‘Rossetti’ of London and the ‘Magnus’ of Copenhagen. On 14th December 1917 the ‘Magnus’ reached Shetland from Norway. When passing Kirkabister Lighthouse she took an Admiralty pilot on board. All merchant ships using Lerwick Harbour at that time anchored according to Admiralty instructions. The ‘Magnus’ was berthed in the south harbour to the north of a boom fence which stretched right across from the Nabb to Taing of Ham, and about 300 or 400 yards from the Holm of Lera Ness. Her port anchor was dropped first, the vessel then steamed up in a north-westerly direction, and her starboard anchor was let go. When finally anchored the port anchor was aft and the starboard forward with about 45 fathoms of chain on each anchor. The ‘Magnus’ was then heading about N.N.W., and the wind was in a north-westerly direction and not very stiff.
On 16th December 1917, the ‘Rossetti’ came into the harbour of Lerwich under the charge of an Admiralty pilot. She was moored in the proximity of the ‘Magnus’ at about 3·30 p.m. on that day. She was anchored with a running mooring—i.e., both her anchors were out, being separated from each other by about 60 or 70 fathoms. There was about 45 fathoms of cable on each anchor. Both her anchors were leading on the bow, so that when riding at anchor she was riding with both anchors holding her up against the wind. The wind was blowing from about the north.
Shortly after the ‘Rossetti’ anchored the wind began to increase and went on increasing with frequent heavy squalls until the evening. It also veered somewhat to the east. About 5·30 the ‘Magnus,’ which was in ballast and light, began to drag her anchor and to sheer. She altered her position until she touched the ‘Rossetti.’ By using her engines she managed to move ahead. Meantime she had picked up her starboard anchor and dropped it again, bringing herself to anchor a little more to the north and west of the ‘Rossetti’ than she had been originally.
The master of the ‘Rossetti’ explains that after he saw the ‘Magnus’ anchored about three lengths ahead of him he thought things were all right and he went below, but that he came on deck again shortly after seven. He further explains that he then saw ‘the “Magnus” was dragging broad on the starboard bow. She was not sheering about; she was heading more in a north-westerly direction, so that she was swinging across with her port side coming down upon us. Just after that her engines were started, and she came across our bows. Her engines were going very fast. She drove down on us with her port side, practically lying across us—I slackened away the cable at that time to try and get away from her, to give her more room. I slackened the cable up a bit, and then the “Magnus” struck me and the cable parted. She struck me right on my stem. The part of the “Magnus” that struck me was somewhere about her bridge deck. About that time my starboard cable snapped and went off with 75 fathoms.’
As the ‘Magnus’ was the vessel which came into collision with the ‘Rossetti’ where the latter was moored I think that the onus of explaining the collision rests upon the former vessel. It is maintained for her that the real cause of the collision was the fault of the ‘Rossetti’ in coming in and anchoring so close to her as to give her a foul berth. The master and mate of the ‘Magnus’ say that the ‘Rossetti’ was anchored at a distance of only 15 fathoms from them. The former witness says that it was obvious to him that the ‘Rossetti’ was being anchored dangerously near his vessel, which was in ballast and therefore more liable to sheer and drag her anchor than if loaded; but that he abstained from making any representation to the Admiralty pilot under whose directions the ‘Rossetti” was being moored. If he appreciated the danger, as he says he did, I do not think that he was entitled to take no action. In my opinion, however, the distance separating the ‘Rossetti’ and the ‘Magnus’ was considerably greater than that given by these witnesses, and was approximately about 50 or 60 fathoms. In ordinary times a greater distance than this would probably have separated vessels moored in winter in Lerwick Harbour if one of the vessels was in ballast; but as a considerable number of vessels had to be accommodated in harbour I am not prepared to say that there was fault in mooring the ‘Rossetti’ dangerously near to the ‘Magnus.’
It was also suggested that the ‘Rossetti’ was in fault in not paying out cable so as to case the situation. This ground of fault is not supported by the evidence for the ‘Magnus,’ and is contradicted by the testimony of the master of the ‘Rossetti’ and other witnesses. It is, in my opinion, not established.
So far as the ‘Magnus’ is concerned, I do not think it can be maintained that she was originally improperly moored. Looking to the increasing force of the wind, to the change of its direction, and to the fact that the vessel was in ballast, I think that the master should have had steam up to assist his vessel in maintaining her position if her starboard anchor, on which alone she was riding, began to drag. On the evidence it appears that he only put on steam after his vessel touched the ‘Rossetti.’ In re-anchoring his vessel he took up a position that with the prevailing wind was likely to aggravate the effects of his being driven down upon the ‘Rossetti.’ It would have improved her moorings if she had shifted her port anchor so as to hold by both anchors; but I am advised by the Nautical Assessor that after her starboard anchor dragged it would have been difficult for her, in view of her proximity to the ‘Rossetti,’ to pick up her port anchor which may have shifted its position, although the master and mate of the ‘Magnus’ consider that it was only their starboard anchor that dragged. In any event the master might have employed steam to
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maintain his position. From the entries in the engineer's log it appears that the engines were stopped between 7 and 8, and that they never had more than half-speed on until after the collision. The ‘Magnus’ must have been dragging her anchor for some time before the engines were again started at eight o'clock. It was suggested for the ‘Magnus’ that it was difficult for those on board that vessel to know that their anchor was dragging, but I am advised by the Nautical Assessor that this is not so. I shall pronounce a finding to the effect that the ‘Magnus’ was alone responsible for the collision, and continue the cause.” The defenders reclaimed, and, so far as the subject of this report is concerned, argued—On the evidence there was no fault on the part of the “Magnus.” It was for the Lord Ordinary to consider the evidence and form his judgment upon it. Instead of doing so he had accepted an opinion of the nautical assessor and as a result had rejected evidence— “The Gannet,” [1900] AC 234, per Halsbury, L.C., at p. 235; “The Melanie,” [1919] W.N. 151. The Nautical Assessors Act 1894 (57 and 58 Vict. cap. 40), sections 2 and 3, were referred to.
Argued for the pursuers (respondents)—The opinion of the nautical assessor founded on by the Lord Ordinary was not of the essence of the judgment and the same conclusion might have been reached without such an expression of opinion.
At advising—
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The first officer of the “Magnus” supports the captain in the following passages—“I remember the storm coming on in the afternoon of 16th December. It came on about dusk, about five o'clock. The storm was accompanied by heavy squalls of snow. Those squalls were very near to hurricane strength. In my log I speak of ‘a very heavy squall.’ I also say that ‘at times it reached hurricane-like snow squalls. The snow was very thick while it lasted; not always in the squall, but sometimes in the squall it was very thick; you could not see anything almost.’ … On the second occasion there was a renewal of the snow squall; there was a heavy squall. At the beginning our vessel did not drag, but the squall got heavier and heavier and then the snow became very thick, and then the last time we were dragging. This time we came down upon the other side of the ‘Rossetti’—upon the port side. … We could not see lights around when the snow squall was thickest. I could not see the lihght of the ‘Rossetti’ when the snow squall was thickest, but it was not the same thickness all the time; sometimes we could see it and sometimes not.… In my view it was impossible to do anything to avoid the collisions which took place; it was impossible in that gale of wind. … (Q) As you were dragging down was there any reason why your engines should not have been on and assisting the anchor?—(A) The weather was not that bad before the squall came, so that there was no reason to have the engines ready. (Q) But after the squall was over which had caused the first dragging, why didn't you have the steam up and assisting the anchor, or have you nothing to do with that?—(A) Well, we had the steam up. (Q) But you never used it for the purpose of assisting the anchor until you were in contact with the ‘Rossetti’; are you aware of that, as the log shows?—(A) No, when the squall came and she began to drag the order was given for the steam; and it takes some time to get steam up. (Q) But when the steam was up there was no reason why it should not have been used to help the anchor; was there any reason that occurs to you?—(A) Well, we used it as soon as we got ready, and we got away. (Q) But you never used it until you were in contact with the ‘Rossetti'?—(A) No—the second time.… (Q) On the second occasion when she dragged could you tell she was dragging until you found yourselves close to the ‘Rossetti’?—(A) No, because it was very thick at the time when she was dragging; we could not see her, it cleared a bit and then we could see her, but then we were alongside of her? (Q) Was there any time that night at which you knew you were dragging and yet never put the engines in motion to help the ship to resist the dragging?—(A) Yes, afterwards, when we came alongside of the ‘Argo.’ (Q) But so far as the ‘Rossetti’ was concerned, was there any time at which you knew you were dragging and yet you gave the ship no assistance from the engines to resist the dragging?—(A) No.”
This evidence is not contradicted by any witness adduced for the pursuers. It could not well be. Indeed it seems to be supported by the evidence given by the second officer of the “Rossetti,” who said, “I slackened our cables just before she (the ‘Magnus’) struck. … I slackened away the cable the second time immediately I saw the ‘Magnus’ dragging.” This witness therefore did not see the “Magnus” from the forecastle of the “Rossetti” until the collision was just about to occur.
Now if this evidence be accepted then the “Magnus” is absolved from blame. I see no reason to doubt it. The credibility of the witnesses was not challenged. The Lord Ordinary makes no adverse comment on their evidence. Why then does he reject it? He says in his opinion that “it was suggested for the ‘Magnus’ that it was difficult for those on board that vessel to know that their anchor was dragging, but I am advised by the Nautical Assessor that this is not so.”
Now it is to be observed that the witnesses do not say merely that it was difficult to know when the vessel commenced to drag. They say they did not know and could not know on account of the darkness and blinding snow. It was for the Lord Ordinary and not for the Nautical Assessor to pronounce upon the trustworthiness of the evidence, and to say whether or not the master of the “Magnus” ought to have known when his anchor began to drag. I hold upon the evidence that he could not tell, and hence was not to blame for not steaming ahead. But it may be said there are other means besides eyesight which might enable those on board the “Magnus” to know when their ship commenced to drag her anchor and the Nautical Assessor may have had those other means of knowledge in his mind. We do not know if this be so: no other means of knowledge is averred on the record or suggested in the evidence. If such there be, then the appropriate questions ought to have been put to the master of the “Magnus” in order that he might have an opportunity of making his reply. In the absence of any evidence at all on the subject we are not entitled to make the assumption that other means of knowledge were available, that they were not availed of, and that if availed of they would have avoided the collision.
I ought to add that the Nautical Assessor who sat with us advises that under the circumstances which existed on the night of the collision there were no means available by which the master of the “Magnus” might have known when his anchor began to drag; and that assuming the facts of the case to be as stated by the officers of the “Magnus,” there was nothing they could have done to avoid the collision. In short, her master managed his ship with seamanlike care and skill, and hence is free from blame.
[ His lordship then proceeded with another
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I am for recalling the Lord Ordinary's interlocutor and assoilzieing the defenders from the conclusions of the summons.
The Court recalled the interlocutor of the Lord Ordinary, and assoilzied the defenders from the conclusions of the summons.
Counsel for the Pursuers (Respondents)— Watt, K.C.— A. M. Mackay. Agents— Carmichael & Miller, W.S.
Counsel for the Defenders (Reclaimers)— The Dean of Faculty (Murray, K.C.)— Normand. Agents— Boyd, Jameson, & Young, W.S.
