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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macbrayne (Owner of "The Islay") v. Patience [1892] ScotLR 30_223 (23 December 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0223.html Cite as: [1892] ScotLR 30_223, [1892] SLR 30_223 |
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Page: 223↓
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The 138th section of the Clyde Navigation Consolidation Act of 1858 provides that a pilot “shall be answerable for any wilful or culpable neglect or mismanagement.”
Held that the liability of a pilot under this section was the same as at common law.
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The pilot in charge of the s.s. “Strathspey” took her from the port of Glasgow down the river Clyde, when an unusually strong ebb-tide was running. Owing to the strength of the current in her favour, and the slow rate of speed to which she was restricted by the river bye-laws, the pace of the “Strathspey” through the water was insufficient to give her steerage-way, with the result that she sheered over to the wrong side of the river and collided with the “Islay.” Held that the accident was due to the fault of the pilot in taking his ship down the river when the ebb-tide was so strong, that he might have foreseen the danger to which he would be exposed, and therefore that he had acted with culpable neglect, which rendered him liable in damages to the owners of the “Islay.”
On the evening of January 25th 1890 the s.s. “Strathspey” left the port of Glasgow and proceeded down the river Clyde. When near Govan Wharf she met and collided with the s.s. “Islay,” which was coming up the river. For the damage so caused David MacBrayne, the owner of the “Islay,” first brought an action against the owners of the “Strathspey,” in which the Court assoilzied the defenders, on the ground that the collision had been occasioned by the fault of a licensed pilot acting in charge of the “Strathspey” within a district where pilotage was compulsory by law (reported ante, July 3, 1891, vol. xxviii. 787, and 18 R. 1048.) MacBrayne now brought an action of damages against James Patience, the pilot who had been in charge of the “Strathspey” at the time of the accident.
The pursuer averred that “the said collision was due entirely to the fault of the defender. Looking to the state of the weather, and the very heavy current which was running down the river, it was grossly imprudent for the defender to have taken the ‘Strathspey’ out of the Queen's Dock, and proceeded with her on her voyage on the night in question.”
The defender denied this averment, and averred “that the collision was occasioned entirely by the fault of those navigating the ‘Islay.’” He also founded on the 138th section of the Clyde Navigation Consolidation Act 1858 (21 and 22 Vict. c. 149), as protecting him from liability. That section provides that any pilot employed as therein provided “shall be answerable for any wilful or culpable neglect or mismanagement.”
Proof was allowed. The evidence led in the previous action was adopted (except in so far as bearing on the question of damages), and further evidence was led. The result was to show that when the “Strathspey” left the dock, an ebb-tide of unusual strength was running, and that owing to the strength of the current, and the slow rate of speed to which she was restricted by the river bye-laws; the “Strathspey” lacked steerage-way, and not being under the control of her helm, sheered over to the south or wrong side of the river, and there collided with the “Islay,” which was going up stream.
There was a considerable amount of skilled evidence to the effect that it was very imprudent to take the “Strathspey” down the river when the ebb-tide was running so strong.
On 11th June 1892 the Lord Ordinary (
Low ) repelled the defences and ordained the defender to make payment to the pursuer of £444.“ Opinion.—The parties to this case agreed to hold the proof (except in so far as bearing upon the question of damages) in the recent actions between the owners of the ‘Strathspey’ and the owners of the ‘Islay,’ as evidence in this case, along with any further evidence which they might lead.
In the actions between the owners of the vessels, the First Division, taking the same view of the evidence which I as Lord Ordinary had done, held that the collision was caused by the ‘Strathspey’ becoming unmanageable, and sheering over to the south side of the river, and that those in charge of the ‘Strathspey’ were in fault in having left the harbour under the existing conditions of wind and tide. The First Division further held that the pilot—the defender in the present action—was in charge of the ship, that it was for him to decide whether he could safely go down the river upon the occasion in question, and that the fault which led to the accident, namely, leaving the harbour at a time when it was dangerous to do so, was the fault of the pilot, and of him alone.
In these circumstances, although the judgment in the former action does not amount to res judicata in a question with the defender, I think that what I have really to consider is the effect of the additional evidence which has been led by the defender….
[ After examining the additional evidence his Lordship continued]—“I am therefore of opinion, upon the whole evidence in the case, that it is proved (1) that it was dangerous to take the ‘Strathspey’ out of the harbour and proceed down the river at the time when she started on her voyage; (2) that the defender was in fault in taking the vessel out of the harbour at that time; and (3) that the result of taking the vessel out of the harbour was that she became unmanageable in the strong current, sheered over to the south side of the river, and collided with the ‘Islay.’
“If I am right in the view which I take of the facts, I do not think that it was seriously disputed that the defender is liable in damages.” …
The defender reclaimed, and argued—The collision occurred on the north side of the river, and was due to the fault of those on board the “Islay,” and not to the defender's fault. At all events, a pilot was only liable under the Clyde Navigation Act for “wilful or culpable neglect;” and assuming it to be proved that the accident was due to the defender's fault in taking the vessel down the river when such a strong tide was running, he could not be charged with
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more than error of judgment, and certainly not with “culpable neglect”—Bell's Comm. (7th ed.) i. 482. Argued for the pursuer—The collision was proved to have occurred on the south side of the river, and to have been caused by the “Strathspey” sheering over to that side. It was due to the defender's taking the vessel out of dock when the ebb-tide was running so strong that he must have known, had he considered the matter, that it was impossible for the “Strathspey,” at the slow rate of speed allowed by the bye-laws, to have proper steerage-way. In acting as he did, he acted imprudently and without due care, or, in other words, negligently, and he was liable for the consequences of his negligence. His liability under the statute was just the same as at common law. If he failed to exercise the care and forethought which his duties demanded of him, he was chargeable with culpable negligence, for the consequences of which he was liable— Lawson v. Dumlin, January 15, 1850, 9 C.B. 54; “ The Khedive,” 1880, 5 App. Cas. 876; “ The Marpesia,” 1872, L.R., 4 P.C. 212; “ City of Peking” 1888, L.R., 14 App. Cas. 30; Marsden's Collisions at Sea, 66.
At advising—
If this were the cause of the accident, we are required to consider a question of very serious consequence to the defender, and also of general importance. We have not been asked to reconsider the opinion which we expressed on the former occasion, that if it were imprudent to leave the dock in the condition of the river at the time, it was the fault of, and that the blame for the collision lay with, the pilot in charge, and not with the master. But it is said that under the Clyde Navigation Act a pilot is only answerable for wilful or culpable neglect or mismanagement, and that the fault alleged is not sufficiently great to fall within that description. It does not appear to me that the statute removes in any way the common law obligation of the pilot to exercise due diligence, or his liability for negligence. On the contrary, it recognises the two separate grounds of liability to which anyone charged with a duty of negligence is subject by the common law— dole, or wilful mismangement, and culpa, or negligence, because culpa in our own law, and in the Roman law, from which we derive both the term and the doctrine, is simply neglect of due care or caution in circumstances which impose a duty to be careful. Therefore if the epithet “culpable” adds nothing to the term with which it is connected, it appears to me to serve merely to emphasise the condition which the law would at anyrate require, that the negligence which creates liability shall have occurred in the discharge of some function which imposes a duty of diligence. I am therefore of opinion that the question as to the liability of the pilot under the Act must be decided on exactly the same principle as if the action had been brought at common law against a master in command of his own ship.
The question therefore must be, whether the defender in leaving the dock in the condition in which the river was at the moment when he ventured into it, acted with the care and prudence of an ordinarily prudent and skilful seaman? I think the evidence is that he failed to exercise due care and caution in venturing into the river at the time when he left the dock. There is a great deal of evidence from men of skill and experience—I do not think it necessary to read it—that this was a very imprudent thing to do. But the conclusive proof of his imprudence is to be found in the result. It is quite true that the fact of the accident having occurred is not conclusive evidence that it ought to have been foreseen, but the question which the defender had to consider does not appear to me to have presented any very difficult or complex problem to an experienced and competent pilot. The result shows that the “Strathspey” could not be navigated safely down the Clyde in the actual condition of the river, because she could not be allowed to steam fast enough to bring her under the command of her helm, and the question is, whether the defender ought to have anticipated that result. He was bound to know, and must certainly have known, if he had considered the question with due care, what the highest rate of speed at which he could steam in that part of the river was, and whether the stream was running so fast as to render the vessel altogether or nearly helpless at that speed. I am constrained to hold that he failed to give due consideration to that question.
But if the accident were not due to the ship not being under proper control, the only other cause to which to ascribe it would be unskilful navigation on the part of those in charge. Now, I think there is no evidence to justify any imputation against the skill or experience of the defender,
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No objection was taken by counsel on either side to the Lord Ordinary's view with reference to the pecuniary results of his judgment. I am therefore of opinion that we must adhere to the Lord Ordinary's interlocutor.
The Court adhered.
Counsel for the Pursuer— Salvesen— Younger. Agents— Whigham & Cowan, S.S.C.
Counsel for the Defender— Shaw— A. S. D. Thomson. Agent— William Douglas, S.S.C.