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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Pacific Steam Navigation Co. (Owners of S.S. "Bogota") v. Anglo-Newfoundland Development Co., Ltd (Owners of S.S. "Alconda") [1924] UKHL 458 (11 February 1924) URL: http://www.bailii.org/uk/cases/UKHL/1924/61SLR0458.html Cite as: [1924] UKHL 458, 61 ScotLR 458 |
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Page: 458↓
(Before
(In the Court of Session, 526, 60 S.L.R. 333.)
Subject_Ship — collision — Contributory Negligence — subsequent and Severable Negligence — Vessel Emerging from Dock into River — Disregard by Approaching Vessel of Signal that River Blocked — Clyde Navigation Bye-laws, Nos. 3, 18, and 19.
The “Bogota,” a steamer 415 feet long, was being towed out of a graving dock on the north bank of the Clyde, stern first, by a tug, the width of the river ex adverso of the dock being about 500 feet. When she was about two-thirds out of the dock and still athwart the river, her tug being about mid-channel, she sighted the “Alconda” three—quarters of a mile away coming up the river under her own steam with two tugs attached. The “Bogota” had steam up but was not using it, her intention being not to use it until she had been straightened out in the river preparatory to proceeding up stream. On sighting the “Alconda” she gave four blasts of her steam whistle, twice repeated, to show that the river was blocked, and continued her manœuvre. The master of the “Alconda” heard
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the “Bogota's” signals and was aware of their meaning, viz., that the river was blocked. The “Alconda,” however, held on her course, intending to pass between the “Bogota's” tug and the south bank of the river. In attempting to do so she collided with the “Bogota's” tug, forcing the tug back on the “Bogota,” with the result that all three vessels were injured.
Held ( aff. judgment of the Second Division, diss. Lord Ormidale) that the “Alconda” was solely to blame for the collision.
The case is reported ante ut supra.
The owners of the “Alconda” appealed to the House of Lords.
At delivering judgment—
As your Lordships are aware, a case of this sort is regulated by the 40th section of the Judicature Act, which requires the Division of the Court of Session before whom the case, originating in the Sheriff Court in which proof has been led, depends, to pronounce specific findings of fact and findings of law, and prescribes that on appeal to this House the findings of fact must be regarded in the same manner as a special verdict by a jury and not open to review, review being confined to the findings in law alone. The effect of these provisions have been explained in your Lordships' House on more than one occasion and notably in Mackay v. Dick, L.R. 6 App Cas 251; Shepherd v. Henderson, L.R. 7 App: Cas. 49; Caird v. Sime, L.R. 12 App. Cas. 326; and Gilroy v. Price, 20 R. (H.L.) 1.
It is unnecessary to repeat what was there said, but I will add this as I do not find it explicitly mentioned. It is not legitimate to extract a new finding of fact from the opinions of the Judges, although it is legitimate to use those opinions to explain, if necessary, any ambiguity in the findings of fact. The result is that we are bound in this case to take the facts as set forth in the interlocutor of the Second Division. At the same time, as pointed out by Lord Atkinson in Herbert v. Samuel Fox & Company, Limited, [1916] App. Cas. at p. 413, we are not bound to take as a finding of fact a finding which is called a finding of fact but which in reality is a finding of law, or of mixed fact and law. I accordingly turn to the interlocutor to see what are the facts upon which the case falls to be decided. I need not read them all because many of them just set forth in distinct propositions the narrative which I have already given, but the crucial findings which are not covered by my narrative are as follows:—“8. That about 4·40, no vessels being in sight either coming down or going up, the ‘Bogota’ gave three short blasts with her whistle, and the ‘Samson’ having replied with similar three short blasts proceeded to tow the ‘Bogota’ out of the dock stern first, and that these blast signals were repeated by both vessels. 9. That the ‘Bogota’ did not give a prolonged blast of the whistle before leaving the graving dock as prescribed by rule 18 of the Bye-laws and Regulations of the Clyde Navigation Trustees, but that the failure to give such a blast had no bearing on the collision which subsequently took place. 10. That the movement of the ‘Bogota’ was hampered ( a) by the presence of the ‘War Afridi,’ a large vessel which was moored to the quay just outside the dock entrance with her head pointed to the east, and ( b) by the flowing tide which operated more and more strongly upon her as she gradually came out of the dock, and had a tendency to throw her stern to the south and her bow towards the bow of the ‘War Afridi.’ 11.
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It should be expained that the expression “hold on” in the 13th finding clearly appears from the judgments of the learned Judges to be used as meaning arrest her further movement into the river by stopping the tug and ceasing to pay out the cables still attaching the ‘Bogota’ to the dock, helped perhaps by a forward turn of her own screw. It is true that the said 13th finding, which is the foundation of the judgment, may be read as not a true finding of fact but as a determination in law of the result arising from the circumstances of the collision. In that sense it is not binding on your Lordships. But it includes in my view an underlying finding of fact, viz., that the “Bogota” had already so invaded the other channel that it was difficult for her to stop her manœuvre. The appellants, as I have already mentioned, admitted fault, so that the sole question to be decided is whether the collision was due to the sole fault of the appellants or whether any fault of the respondents contributed thereto. There are certain bye-laws and regulations of the Clyde Trustees published to regulate the river traffic which must be here set forth. The bye-laws have not the force of statute, but like the rules of the road they form a rule of conduct, so that an infringement of them would he held to be in law a fault which if it led to damage would infer liability.
The rules quoted at the trial are as follows:—“3. When a steam vessel or a dredger is turning round or for any reason is not under command and cannot get out of the way of an approaching vessel which but for this it would be her duty to get out of the way of, or when it is unsafe or impracticable for a steam vessel or dredger to keep out of the way of a sailing vessel, she shall signify the same by four or more blasts of the steam whistle in rapid succession or by like strokes of her bell, and it shall be the duty of the approaching vessel to keep out of the way of the steam vessel or dredger so situated. 19. Every steam vessel under her own steam crossing from one side of the river towards the other side shall keep out of the way of vessels navigating up and down the river.”
Now the case of the appellants is this. They say that the “Bogota” transgressed rule 19 and was not excused by rule 3. The respondents argue that rule 19 did not apply, but that if it did, rule 3 provided the excuse. They also say that apart from rule 3 there is in the circumstances no liability. Now it may be doubted whether rule 19 was intended to apply to such a manœuvre as was here going on. But the sense in which it is expressed raises a question of much difficulty. It would indeed be well if the rules were revised so as to remove doubt on the matter. As it is I
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I would add that, if the facts were open to me, I should hold that in my view the “Bogota” was excused under rule 3. She did sound the four blasts. It is, I think, clear that rule 3, where there is scope for its application, will override rule 19, for as it itself states it is meant to apply just when but for it there would be a duty to get out of the way of an approaching vessel. There was argument as to the question of whether the “Bogota” was turning round. I do not think she was turning round, but that in my view is immaterial, because I read the words “and cannot get out of the way” as qualifying both the words “turning round” and the words “or for any reason is out of command.” I am not entitled to make any finding that the “Bogota” was unable to get out of the way, and I cannot extract this proposition from any of the findings by which I am strictly bound.
On the whole matter I am of opinion that the appeal must be dismissed with costs.
Taking, as I am bound to do, the findings of fact in this case by the Sheriff as unassailable, there are in my view several grounds upon which the correctness of the judgment appealed from may be tested. I propose only to deal with one of these grounds and to rest my judgment upon it. Namely, the applicability as to this case, on the facts found by the Sheriff, of the principle upon which the decision of the case of Davies v. Mann ( 10 M. & W. 546) was decided. That principle is, I think, this, that in order that a defendant should sustain a plea of contributory negligence he must establish that he himself could not by the exercise of reasonable care and diligence have avoided the consequences of the plaintiff's negligence— Tuff v. Warman, 5 C.B.N.S. 573. For the purpose of testing the applicability of this principle to the present case, I assume of course that the “Bogota” transgressed one or more of the Clyde rules and was guilty of negligence in getting with her tug the “Samson” into the position in which they were when the collision took place. In Marsden on Collisions, 5th ed., p. 17, it is laid down on the authority of the cases mentioned in the notes, to some of which I shall presently refer, that there is no difference between the rules of law and those of Admiralty as to what amounts to negligence causing a collision, and that before a vessel can be found in fault for a collision, negligence causing or contributing to the collision must be proved, and that in the case of a collision a ship though guilty of negligence will not necessarily be held to blame if the ship with which she collides could by the exercise of reasonable and ordinary skill and care have avoided the collision. In the case of Cayzer v. Carron Company ( L.R. 9 App. Cas. 873), which closely resembles the present case and is directly in point, Lord Blackburn (at p. 883) assumes apparently that the principle of Davies v. Mann applied. In that case ( Cayzer v. Carron Company) a collision occurred in the Thames between two ships named respectively the “Clan Sinclair” and the “Margaret.” The former ship had transgressed one of the statutory rules and regulations framed to regulate navigation on that river. This rule required that in circumstances such as existed at the material times the “Clan Sinclair” should have waited at a certain point in the river until the other ship, the “Margaret,” had passed up the stream. She did not ease and wait as she ought to have done, and was guilty of negligence in that respect, but the “Margaret” knowing that the “Clan Sinclair” was steaming up the river attempted to pass between the latter ship and another vessel named the “Zephyr,” where there was not room, and so brought about the collision. It was held, however, that notwithstanding the negligence of which the “Clan Sinclair” was guilty she was not to blame, that the “Margaret” was alone to blame because she could, by the exercise of reasonable skill and care, have avoided the collision. At page 883 of the report Lord Blackburn on giving judgment expressed himself thus—“Then it is said that the collision was owing to the ‘Clan Sinclair’ being where she was, undoubtedly in one sense that is so. If the ‘Clan Sinclair’ had been some hundred yards higher up the river, the fact which made it a matter of rashness on the part of the ‘Margaret’ to run where she did run would not have existed. But that is not a sufficient ground for saying that the fact of the ‘Clan Sinclair’ being there was the cause of the accident. The ‘Clan Sinclair’ would not have been there at the time when she was there if it had not been that the vessel did not ease and wait so soon perhaps as she ought
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Even, therefore, if I assume that the “Bogota” and her tug the “Samson” had transgressed one or more of the Clyde navigation rules, and were therefore guilty of negligence in getting into the position in the river in which they lay when the collision occurred, I have to ask myself, as Lord Blackburn had to ask himself, in the case of the “Margaret,” was this negligence the cause of the collision? In this case the position of the “Bogota” must have been known to those navigating the “Alconda.” The “Bogota” had given the proper whistle to indicate that the river was blocked by her and her tug. The pilot on the “Alconda” heard the signal, knew what it meant, and communicated his opinion to the captain, yet with all this knowledge that the river was blocked the “Alconda” did not check her speed but recklessly steamed ahead as if the river in front of her was perfectly clear, relying apparently on the chance that she might have been able to pass through the gap, 50 feet wide, which separated the tug “Samson” from the southern bank of the river. That was a wrong and reckless proceeding on her part. In the result her commander had not the skill or courage to effect his purpose. There was apparently nothing to prevent her slowing down or stopping to give the “Bogota” time to get turned up stream and get out of her way. (See finding No. 21.) That might have amounted to the exercise on her part of ordinary care, caution, and diligence to avoid the consequences of the “Bogota's” contributory negligence which I have assumed existed, but the “Alconda” made no effort to do anything of the kind. The cause of the collision was therefore, in my view, the reckless and dangerous action of the “Alconda” in steaming up stream at the rate and in the way she did in utter disregard of the warning she had received.
I therefore think that she was alone to blame, and the appeal fails and should be dismissed with costs.
I cannot see my way to hold that the “Bogota,” which had 265 feet of her length emerging into the river and 150 feet of her length still within the dock gates, the river being both up and down clear up to that point, was contravening the rule. I must, however, add that I would not see my way to hold that she was engaged in crossing the river towards the other side. She was in point of fact being manœuvred in order to straighten up. Nor could I see my way to hold that such a vessel being towed out from her stern and not even free from the attaching ropes, handled from the dock side, and no proportion of her under steam being operated, can be reckoned to be a vessel crossing to the other side of the river under her own steam. So that upon both of these fundamental points I also hold that rule 19 would not apply to the situation under consideration. But in truth in the view which I take of this case it is really unnecessary to pronounce upon that rule.
I venture to hold that the action of the “Alconda” was wholly and solely to blame for the collision that occurred, and that for the following reason The “Bogota” had only partially emerged from dock as above described up to the moment when the river both up and down was clear. At that point, however, the “Alconda” hove into view, and at once the “Bogota” sounded four blasts signifying that she was an obstruction, the tug “Samson” repeating these blasts. These signals were heard by the “Alconda.” They were not mistaken, and it was known to the “Alconda” that de facto an obstruction was in the river. No question of collision came into play prior to that moment, and the problem only began to arise when the “Alconda” came up the
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The Court below most properly held in my opinion that the “Alconda was solely to blame. My opinion is that partial or contributory blame can only be assigned to the “Bogota” if, subsequent to the given and accepted notice of her being an obstruction, the “Bogota” did something to contribute to or fail to minimise the collision which was being precipitated by the reckless advance of the “Alconda.” It is not in the view which I take sufficient in law to say that the “Bogota” should not have been, on the view that rule 19 applies, crossing the river, for it is not suggested that she was crossing the river in any sense which was faulty, and, so far as the “Alconda” and the collision are concerned, the “Bogota” from the time that the vessels sighted each other was in the river as an obstruction, known by the “Alconda” to exist, and therefore to be avoided.
The principle does not apply to shipping law alone but to all the law of contributory negligence, from Davies v. Mann downwards; and I take the principle, to be that although there might be—which for the purpose of this point I am reckoning that there was—fault in being in a position which makes an accident possible, yet if the position is recognised by the other prior to operations which result in an accident occurring, then the author of that accident is the party who, recognising the position of the other, fails negligently to avoid an accident which with reasonable conduct on his part could have been avoided. Unless that principle be applied it would be always open to a person negligently and recklessly approaching and failing to avoid a known danger to plead that the reckless approach to encountering of danger was contributed to by the fact that there was a danger to be encountered. There is a period of time during which the causal function of the act or approach operates, and it is not legitimate to extend that cause backwards to an anterior situation. The anterior situation may be brought about either innocently or by some mistake, but if it has nothing to do with the subsequent operations which contributed to produce an accident or collision, it is not legitimate to treat it as a contributory in liability for the result thus produced.
In Admiralty Commissioner v. s.s. “ Volute, [1922] 1 A.C. 136, Lord Birkenhead, then Lord Chancellor, in a valuable judgment applies this principle—“In all cases of damage by collision on land or sea there are three ways in which the question of contributory negligence may arise. A is suing for damage thereby received. He was negligent, but his negligence had brought about a state of things in which there would have been no damage if B had not been subsequently and severably negligent. A recovers in full.” That appears to me completely to fit the situation of the “Bogota,” even on the assumption that she had contravened rule 19, as I do not think she had. The whole cause of collision arose from a subsequent and severable negligence on the part of the “Alconda”—that is to say, negligence arising subsequent to the known existence of the obstruction, and severably caused by the “Alconda's” approach to and collision with that obstruction.
I therefore think it right to set down again the language of Lord Chancellor Selborne on this topic, used also in a case of shipping collision— Spaight v. Tedeastle ( L.R., 6 (H.L.) 219)—“Greatinjustice might be done if, in applying the doctrine of contributory negligence to a case of this sort, the maxim causa proximo, non remota, spectatur were lost sight of. When the direct and immediate cause of damage is clearly proved to be the fault of the defendant, contributory negligence by the plaintiffs cannot be established merely by showing that if those in charge of the ship had in some earlier state of navigation taken a course, or exercised a control over the course taken by the tug, which they did not actually take or exercise, a different situation would have resulted, in which the same danger might not have occurred. Such an omission ought not to be regarded as contributory negligence if it might in the circumstances which actually happened have been unattended with danger but for the defendant's fault, and if it had no proper connection as a cause with the damage which followed as its effect.”
In the present case accordingly I think that the question which is truly relevant on the point of partial liability is whether the conduct of the “Bogota” and her tug in the river, subsequent to the stage when they were there recognised to be obstructions, did something to precipitate or partially to cause the collision. It is for this reason that I think the House is greatly helped by two findings which establish, first, that the “Bogota” even although she had been crossing the river did so leaving quite enough of room, namely, 100 feet, within which the “Alconda” if she was determined to pass her could have done so with complete safety; and secondly, that there was nothing which the “Bogota” or her tug did or could have done to avoid the collision so swiftly brought about by the “Aloonda's approach. These findings are as follows:—“That the collision occurred about 100 feet from the south bank, and that the ‘Alconda’ could have manœuvred in safety to within 50 feet of that bank,” and “that the ‘Samson’ from the position in which she was could not do anything to escape the collision, and was at the time doing her utmost to keep the ‘Bogota's’ stern to the north against the tide in conformity with her orders from the ‘Bogota.’”
It therefore appears to me that the judgment of the Court below was completely justified to the effect that the “Alconda” was wholly in fault.
Upon the point of procedure—this case having originated in the Sheriff Court, and raising the question as to findings in fact or mixed law and fact, and our duty in the House in such circumstances—I also fully agree with my noble and learned friend on
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I think that the appeal should be dismissed with costs.
All rules relating to navigation by one ship with reference to another ship (rules to prevent collision) assume the existence and the duty to know of the existence of the second ship as being sufficiently near in time and space to require consideration.
If there is no other ship in that part of the Clyde, a vessel may cross or proceed up or down in any part of the channel, may keep her course or change it, go ahead or astern, festoon herself with lights or proceed with none, scream with her whistles or be entirely silent,
Now in this case when the “Bogota” started to leave the dock there was, according to the findings of the court below by which we are bound, no vessel in existence sufficiently close for the “Bogota” to have any duty towards her. Or one might qualify this by saying that if there was any such vessel in existence she had not given such notification of her presence as to make it the duty of the “Bogota” to know of her existence. The “Bogota” therefore lawfully came out of dock, although the corning out of dock may have meant, as I should think, that she would be crossing the river and crossing under steam, and she was entitled to go on with her manœuvre till the time came when it was her duty to be conscious of the existence of another vessel. That time, according to the findings (one may be allowed some private doubt whether they are correct but we are bound by them), did not arrive till the “Bogota” had got into such a position that she was helpless to do anything on her part to avoid a collision; and therefore though she may have been “crossing the river under steam,” and therefore within the apparent compass of rule 19 she had never come under rule 19 before the time came when that rule was superseded by rule 3, and the duty of avoiding collision was shifted from her to the other vessel.
In the view which I take of the whole facts found by the Court below the appellants would be no nearer success in their appeal if they were to establish the proposition on which they stake its fortunes.
Accordingly I hesitate to follow them in their argument. Their appeal must, I think, fail whether it is well founded or not, and if I do go into the question it is only out of deference to the fullness with which it was canvassed before your Lordships by counsel on both sides.
Now, although one must be struck with the inaptness of the language of rule 19 to describe the operation in which the “Bogota” was engaged at the time, I am prepared to hold as a mere matter of words that the “Bogota” was then crossing, proceeding under her own steam, towards the other side of the river. My own opinion, however, is that if you consider rule 19 in its relation to the other regulations of the Clyde Trustees you find it was not rule 19 with its attendant responsibilities but rule 18 with its implied attendant privileges that then applied to the “Bogota.”
It must, I think, be agreed, as I have said, that, the operation on which the “Bogota” was engaged is not described with any aptness in rule 19. She was not in real truth crossing towards the other side of the river. She was in fact coming out of dock. For such a vessel as she it is rule 18 that makes provision.
The significance and necessity of such a general regulation as rule 18—to the terms of which I will presently return—is illustrated by the position of the “Bogota” at the moment when the “Alconda” was sighted by her. She had then emerged from the dock stern first to the extent of from one-half to two-thirds of her length. She could have held on by her ropes still attached to the quay or she could proceed with her manœuvre. But one thing she could not do—and this is all important—she could not return to the dock nor withdraw from the northern half of the river any part of her hull which had passed into it. In other words, in the course of a common and ordinary evolution she was powerless to keep out of the way of any vessel coming down the river, and so soon as her stern had crossed the middle line of the stream she was powerless to keep out of the way of any vessel coming either up or down until her manœuvre had been completed.
Now rule 18 applies to all vessels coming out of any dock on the river. The “Bogota” is 415 feet in length. There must be many vessels using graving docks on the Clyde of equal and even greater length. The river at Elderslie is 500 feet wide. There must be other docks on the Clyde where the river is no wider. This dock enters the river at an angle of 30 degrees to the west. There must, I should suppose, be other docks where the angle of approach is more direct. In other words, rule 18 deals with an operation which time and again cannot be completed without an obstruction quite unavoidable being occasioned to the river traffic, both up and down, and as the emerging vessel can on
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Now, if the necessary implication of rule 18 be what I have stated, it becomes apparent that a vessel under steam cannot be governed both by rule 18 and by rule 19 at the same moment. The rules are quite inconsistent. Her express obligation under the latter rule would be destructive of and would render nugatory her privileges under the former. If, then, a choice must here be made between rule 18 and rule 19 as the rule applicable to the “Bogota,” there can, I think, be no doubt where the choice lies. Rule 18 in terms covers her case; rule 19 only barely touches it.
This conclusion imports that rule 19, notwithstanding the apparent generality of its terms, is really restricted in its range. A perusal of the Clyde Regulations as a whole shows that this is the fact. A striking illustration may be taken from an observation made by the Sheriff-Substitute in the note to his interlocutor.
“Rule 19,” he says, “is of course not limited to ferry boats.” The learned Sheriff-Substitute, not perhaps unnaturally, assumed that the rule was primarily applicable to them. A perusal of the regulations, however, shows how far this is from being the case. Steamships on the Clyde have to keep clear of ferry boats at their peril. Regulation 102 provides as follows:—“Every master or other person in charge of a steam vessel when approaching any of the ferries on the river, shall, at least 200 yards from the ferry, slow the engines and proceed dead slow until the ferry is passed.” It will, I think, be agreed that general as is the language of rule 19 it has much less relation to the operation in which the “Bogota” was engaged on this afternoon than it has to the crossing of a ferry boat. This last, however, is not apparently intended to be covered by it.
In regard to the position on the river of a vessel coming out of dock there is a passage in the Lord Justice-Clerk's judgment which is not without interest in this connection. It is where he refers to a statement made in evidence by the pilot of the “Bogota” that in his experience he had never seen a vessel trying to pass another which was in course of coming out of dry dock. This statement of course, even if your Lordships could treat it as a fact found—and that is not open to your Lordships—could not affect the true construction of printed regulations. I refer to it only as describing what I may call the normal courtesy of the river extended to vessels more or less hampered in their movements in the course of an experience which every vessel is from time to time called upon to undergo. If so, this is not the first time that rules of courtesy have been based upon and go only a little beyond the rules of obligation, which by the regulations, as I construe them, are imposed upon these passing vessels. I mention, merely to show that I have not overlooked the fact, that the “Bogota” did not give a prolonged blast of the whistle before leaving the graving dock as prescribed by rule 18; she and her tug each gave three short blasts instead. It is found, however (finding 9), that the failure to give the long blast had no bearing on the subsequent collision. In other words, if rule 18 with its necessary implications is the rule applicable, the “Alconda” derives no advantage from the fact that its provisions were not in this respect observed by the “Bogota.”
In the application therefore of rule 18 to the case you have a complete answer to the appeal.
But there is to my mind still another. There is, I think, in the stated circumstances enough to dispense the “Bogota” from the obligations of rule 19 if, contrary to my own view, that rule really applied to her.
I have already stated what the position of the “Bogota” was at the moment when the “Alconda” was first sighted by her.
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Was she so bound? I have some difficulty in seeing how to a vessel so placed rule 19 continued to apply. Like all similar rules the rule must be reasonably construed. Its proper sphere, as I hope I have shown, is a narrow one. But of it this can, I think, at least be said, that the rule implies that the crossing steamer, which is by its terms obliged to keep out of the way of all vessels whether navigating up or down the river, shall not be entitled to require any of these vessels to keep out of her way, shall not be entitled, in other words, to hold them up. For, note the consequences if the rule applies to a vessel so entitled. However crowded the traffic in her own half of the stream, however insignificant the traffic in the other half, it would remain her duty indefinitely to block the first flow of traffic, in order that under the rule the second trickle might have free course and passage. The rule does not, in words, cover such a state of things. On the contrary, it imposes upon the crossing vessel obligations which negative its existence, and if, for instance, the approach to the Elderslie Dock on this afternoon of the Spanish steamer the “Artivi Mendi”—coming down the stream had, instead of preceding, synchronised with the approach of the “Alconda” coming up, I cannot myself doubt that it would under rule 3 have been the duty of the “Artivi Mendi” to keep clear of the “Bogota”—which there upon became dispensed from any obligation under rule 19 of keeping clear either of her or of the “Alconda.” In the present case, however, there was no vessel actually coming down the stream at the time. The “Bogota” delayed coming out of dock until the river was clear in both directions, and by the time she was committed to her manœuvre it was a vessel coming up the river and not one coming down that first presented itself. Does this fact alter the whole case? For myself, I think it should not. I take the effect of rule 19 to be that where a manœuvre, such as the “Bogota's,” has in propriety been commenced, and where it has so far proceeded as to make withdrawal to the status quo ante out of the question, the possibility even of approaching traffic on her own side of the river from which she is neither able nor bound to keep clear except by completing her manœuvre is sufficient, on due warning under rule 3 being given, to exclude her from the obligations of rule 19 in relation to all vessels whether coming up or down. I cannot doubt that it was on this view of her position that the “Bogota” acted when she sounded her four blasts and proceeded with her manœuvre, and I am not surprised that those on board the “Alconda” apparently without hesitation conceded that position to her. I am of opinion therefore that for one reason or another rule 19 is out of the case.
But I fully recognise that in this matter there is room for difference of opinion. I will accordingly now assume, contrary to my own view, that the “Bogota” on this occasion was bound by rule 19, and that in view of the “Alconda's” approach she was in fault under that rule in advancing over the middle line of the river. Even so, as I have already indicated, I am of opinion that the “Alconda” was on the facts stated by the Inner House alone to blame for the subsequent collision between herself and the “Samson.” These facts have already been set forth. I need not repeat them.
There is no dubiety as to their effect. They show on the part of the “Alconda” a complete appreciation of the position of the “Samson” and her tow—an acquiescence in their claim after signal given to block the river, and a decision notwithstanding to go on at the same speed instead of stopping as was quite feasible. And all this was done in the belief that the “Alconda” could pass to the south of the two vessels in safety. The collision was the direct result either of the failure on the part of the “Alconda” to stop and hold back, as she could and ought to have done if there was no room to pass, or it was due to her negligent navigation in not taking advantage of the passage sufficiently wide to enable her to pass in safety. Her liability, this passage being sufficiently wide, differs in degree and not in kind from what it would have been had the stern of the “Samson” been to the north of the middle line of the river, and had the “Alconda” negligently starboarded into her.
The “ Volute,” in your Lordships'House ( [1922] 1 A.C. 129) is now the locus classicus on this subject. It has made no alteration in the law as previously understood in relation to facts like these. My noble and learned friend Lord Shaw has referred to the passage from the Lord Chancellor's speech in which he reaffirms the law. Applying that language, I cannot doubt on the facts stated that even if the “Bogota” were originally at fault “there would here have been no damage had not the ‘Alconda’ been, as she was, subsequently and severally negligent.” She is therefore liable for the whole damage.
I have only to add that had I felt constrained to hold that the “Bogota” was partly to blame for this collision I should in restoring the order of the learned Sheriff-Substitute have desired to modify it, as suggested in the opinion of Lord Ormidale, with whom alone in the Second Division the contentions of the “Alconda” found favour. On any view of the case the fault of the “Bogota,” as contrasted with that of the “Alconda,” was venial and slight. From first to last the proceedings of the “Alconda,” whether they be regarded subjectively or objectively, were without justification or excuse. The blame attaching to her greatly preponderated, and I should have agreed with Lord Ormidale in thinking that she should bear three-fourths of the resulting damage.
On the whole, however, I am of opinion
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Their Lordships ordered that the interlocutor appealed against be affirmed, and the appeal dismissed with costs.
Counsel for the Appellants—The Dean of Faculty ( Sandeman, K.C.)— Bateson, K.C.— W. G. Normand. Agents— J. & J. Ross, W.S., Edinburgh— William A. Crump & Son, Solicitors, London.
Counsel for the Respondents— Macmillan, K.C.— Carmont. Agents— Webster, Will, & Company, W.S., Edinburgh— Godfrey, Warr, & Company, Solicitors, London.