Scottish Court of Session Decisions

This was an action at the instance of John Holman and others, registered owners of the steamship “Gertrude” of Exeter, against the Irvine Harbour Trustees, and James Dickie, solicitor, Irvine, their clerk, for the sum £267, 14s. 6d., as the loss or damage sustained by the pursuers through the fault of the defenders and their servant in the following circumstances:—On 10th September 1875 the “Gertrude” arrived off the harbour of Irvine. The master, never having been at Irvine before, waited outside the bar for a pilot, and in a short time a boat containing three men came alongside, and one of the men, Jeremiah M'Gill, boarded the vessel, and intimating that he was the pilot took the helm and gave orders to steam ahead. When the vessel was entering the harbour M'Gill steered her too near the south side, and the consequence was that she struck the stone work which supported a beacon, and was damaged to so great an extent that it was necessary to put her into a dry dock for repairs. She was detained in the dry dock eleven days.

The pursuers averred that M'Gill was “acting under the instructions and was in the employment of the defenders,” and this action was accordingly brought againt the defenders for the loss which pursuers averred they had sustained, viz.:—for repairs, £148, 5s. 6d.; for fees of survey, £8, 8s.; and protest, £1, 1s.; and for eleven days lost, at £10 per diem, £110.

The defenders averred that M'Gill was a duly qualified pilot, and explained that they undertook no responsibility for any damage caused to vessels while under charge of the persons authorised by them to act as pilots.

The pursuers pleaded—“(1) The pursuers having sustained loss and damage through the fault of the defenders and their servant, in causing the vessel to come into collision with rocks or stones on entering the harbour, are entitled to decree for the sums specified in the said account, as concluded for; (2) Separatim, the pursuers are entitled to decree, in respect it was the duty of the defenders to keep the fair way of the harbour clear of obstructions.”

The defenders pleaded, inter alia—“(2) The said Jeremiah M'Gill being a duly qualified pilot, the defenders are not liable; (3) The services of M'Gill having been accepted by the pursuers at their own risk, the defenders are not liable.”

A proof was taken, from which it appeared that M'Gill was really a “hobbler,” or workman employed by the defenders about the harbour. He had not been examined or formally licensed as a pilot, but as he was understood to know the navigation, he was verbally authorised, as occasion arose, to pilot vessels in. He was not paid by pilot dues, but by weekly wages of 21s. It was clearly proved that the accident was entirely caused by M'Gill. The defenders had under a Provisional Order in 1867 become “a pilotage authority” for the harbour under the Merchant Shipping Act of 1854. In the port of Irvine pilotage was not compulsory, but pilotage dues were payable whether a pilot was employed or not. The pursuers had not been charged pilotage dues. The further result of the proof sufficiently appears from the opinions of the Judges.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 15 th November 1876.—Having considered the cause, Finds that the pursuers have failed to prove facts and circumstances inferring liability against the defenders for the sum sued for or any part thereof; assoilzies the defenders from the conclusions of the action, and decerns.

“ Note.—The questions of fact in this case do not appear to me to be attended with any difficulty, but the case raises a question of law of considerable importance and nicety…

“The result is, that the injury to the vessel was caused by the fault of M'Gill, and that the defenders, the Harbour Trustees, were not in

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fault; but the legal question which remains is, Whether the defenders, the Harbour Trustees, are responsible for the fault of M'Gill, the pilot? That question seems to depend on this other question—Whether, when the captain accepted the services of M'Gill, who was sent out by the harbour-master as representing the defenders to bring the vessel in, the defenders undertook and contracted to bring the vessel in safely, or only undertook to give the services of one whom they believed to be duly qualified for the duty? I am of opinion that the defenders did not undertake responsibility for any fault which M'Gill, whom they believed to be a duly qualified pilot, might commit.

“In support of the view of the defenders' liability on which the action is founded, the pursuers rely on the fact that the defenders are proprietors of the harbour; M'Gill was their servant, paid by weekly wages, and dismissible at pleasure, and engaged not only to perform the duty of piloting vessels from the bar of the river in the bay of Irvine into the harbour, but of moving vessels from place to place in the harbour, taking soundings in the river, and performing such other duties in relation to the navigation as the harbour-master might require. It is proved that the relation of master and servant existed between M'Gill and the defenders, and the pursuers maintain that the defenders undertook the safe pilotage of the vessel, performing the duty by their servant, and that they are therefore responsible for his fault.

“I am, however, of opinion that, notwithstanding the relation which subsisted between M'Gill and the defenders, the latter are not responsible for his fault, and that in providing pilotage for vessels resorting to the harbour the defenders do not undertake more than that due and reasonable care shall be taken in the appointment of the persons who shall perform the duty of pilots. The defenders produced at the proof the local Act, 7 Geo., TV. c. 107 (1826), and two Provisional Orders, dated in 1867 and 1870, and it appears that under the first of these Orders the defenders became ‘a pilotage authority’ for the harbour under the Merchant Shipping Act of 1851. It is unnecessary to consider the effect of these documents for by the Irvine Harbour Act 1873, sec. 7, the local Act and the Orders of 1867 and 1870 were repealed in so far as related to the harbour of Irvine, and a new series of statutory provisions was then enacted. By this Act of 1873 the Provost, Magistrates, and Town Council of the burgh of Irvine, the Convener of Trades, and a certain number of owners of vessels belonging to the harbour, and of traders at the harbour, were incorporated as the Irvine Harbour Trustees. By sec. 17 the limits of the harbour were defined to be ‘the beds or channels of the rivers Irvine and Garnock, in and through the harbour, and from the harbour to the bay of Irvine’ and the foreshore in which the harbour and works are situated. The statute authorises a variety of works to be executed by way of improving the harbour, and sec. 42 provides that the trustees shall apply the money received from the rates levied under the Act generally in the mainentance, repair, management, and improvement of the harbour. The 32d section of the statute gives the trustees right to the rates specified in the schedule annexed to the Act on all vessels ‘entering within or leaving the limits of the harbour,’ and amongst the rates specified in the schedule is the following:— ‘Rates for pilotage. For all vessels entering or leaving the harbour, per registered ton, 2d.’ Section 47 is in the following terms:—‘The trustees shall be a pilotage authority within the meaning of “The Merchant Shipping Act 1854,” and the Acts amending the same, and shall have all the powers conferred by those Acts on pilotage authorities and on local authorities.’

“From these provisions it appears that the defenders are entitled to charge all vessels entering or leaving the harbour a rate ‘for pilotage,’ and this of itself, and at least taken in connection with the clause providing that the defenders shall be a pilotage authority, it may be assumed, imposes on them the obligation of making some provision for the pilotage of vessels entering and leaving the harbour. Such a duty and obligation seems to be a necessary consequence of the existence of a harbour to which access is obtained by a navigable river channel, and certainly of the existence of a bar-harbour in which the banks are liable to shift, with the effect of altering the channel more or less from time to time. Harbour trustees have generally the duty of making provision for pilotage, and are usually authorised to levy rates in return for the pilot service. The owners of vessels, on the other hand, have the important advantage of the local knowledge of the peculiarities of the harbour, possessed by persons employed in the peculiar service of pilots at that place. In the present case Captain Parnall has stated that he would not have himself ventured to take the vessel into port, particularly as he knew Irvine was a bar-harbour, and probably if he had taken this duty upon himself his employers would have forfeited any right to claim indemnity under any insurance effected on their behalf. See authorities cited by Mr Kay in his. work on Shipmasters and Seamen, vol. ii. p. 756.

“In the port of Irvine there is no compulsory pilotage. In practice, vessels frequently enter and leave the port without taking the services of a pilot, and vessels which hail from the port, or frequently resort to it, and the captains of which are familiarly acquainted with the harbour, are probably better in the hands of their own commanders than in those of the pilots appointed by the Harbour Trustees. Vessels are liable to pilotage dues, and pay such dues accordingly, whether they take the services of a pilot or not; but any vessel desiring such services is entitled to have them.

“The provisions of the Merchant Shipping Act of 1854 recognise the existence of two classes of pilots,—‘pilot’ meaning any person not belonging to a ship ‘but has the conduct thereof,’ and ‘qualified pilot, any person duly licensed by any pilotage authority to conduct ships to which he does not belong.’ Section 2 contains provisions giving full power to pilotage authorities to determine the qualifications of pilots and grant them licenses, to make regulations for the conduct of pilots, and for ensuring their attendance and effectual performance of duty either at sea or on shore, to fix the remuneration to be received by pilots, to arrange the limits of their districts, to make regulations for the approval and licensing of pilot-boats and ships and otherwise (section 333). The statute (section 337) also provides that every pilotage authority shall deliver periodically

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to the Board of Trade, to be laid before both Houses of Parliament, returns embracing a number of particulars showing the regulations relating to pilots, or pilotage in force in each district; ‘the names and ages of all the pilots or apprentices licensed or authorised to act by such authority, and of all pilots or apprentices acting either mediate or immediately under such authority, whether so licensed or authorised or not, the rates of pilotage for the time being in force, with the total amount received for pilotage, and receipt and expenditure of all monies received by or on behalf of such authority in respect of pilots or pilotage.’ This section of the statute obviously contemplates the case, which is probably not an uncommon one, at least in the coast harbours of Scotland, of pilots acting under the pilotage authority although not holding a formal license. The clauses of the statute (365–6–7) relating to the offences of pilots and the penalties to which they are to be subject under the statute, also recognise the existence of licensed pilots as distinguished from pilots acting without a formal license.

“From the provisions of the statute of 1854, thus noticed in conjunction with the enactment contained in the Irvine Harbour Act of 1873, it is clear that the defenders were entitled to license pilots, who should be subject to such regulations as they might think fit, and whose remuneration they were entitled to fix. If the defenders, in the performance of their duties under the statute, had adopted this system, and become practically a licensing board only, such as the Trinity House of Leith or the Elder Brethren in England, it is not maintained that they would have been liable for the fault of the pilot or licensed pilot; at least it is not maintained there would have been liability if the defenders had not gained benefit by the pilotage dues. In the case of a pilotage authority, which is substantially a licensing board only, it seems clear that no responsibility for the fault of the pilot would attach to the Board. In this instance the defenders did not license the pilots at the port so as to make them “duly qualified” pilots under the statute, but merely appointed them to the office. It appears to me to be a reasonable extension of the general principle to hold in these circumstances that there is no such responsibility on the defenders as the pursuers seek to enforce.

“Under the statute the defenders being bound to provide pilotage for those who desire it, may either license persons or simply appoint them to do the pilot's duty. If the defenders found it necessary, in order to provide competent men for the service, they might no doubt pay away all the pilotage dues received, or, it may be, give the pilots right to receive the dues directly; but if they do not find it necessary to expend the whole pilotage dues on that service, then their statute provides that the dues received shall be applied for the general harbour purposes. The form of the appointment of pilots or the mode of their remuneration does not appear to me to affect the legal responsibility of the Board for the pilots' acts; nor do I think the circumstance that the remuneration is given by the Board out of the pilotage dues, in periodical payments, instead of being in the form of direct payments from the shipowner, makes any difference. In all these cases alike it appears to me that the duty and obligation which lies upon the body of trustees, acting as a pilotage authority towards the owners and traders resorting to the port, is to take reasonable care to provide men whom they believe to be fitted for the duty of pilots. There is certainly no express contract to do anything more, and do not think that the relation between the parties creates a legal power with higher obligations. It is true that in one sense pilots, employed as those in Irvine, are the servants of the trustees, under their orders, and liable to be dismissed by them. But these pilots are there truly in the performance of the public service, in the same way as duly licensed pilots are, and in each case in which they act they are for the time the servants of the owner or trader of the vessel under their charge. The service cannot, think, be regarded as one which the trustees themselves perform by their servant or deputy. It would be a very serious responsibility that harbour trustees, by the appointment of pilots for the public benefit and service, should be held absolutely to undertake the safe pilotage of vessels within their district, becoming responsible for the faults of the pilots appointed, and no example of such responsibility can be cited by the pursuers.

“In the present case, no doubt, the defenders might have formally issued licences to the three pilots who are required for the work of the harbour, and the probability is that if they did so men of better capacity for the office, and probably with somewhat better remuneration, would be selected, to the benefit of the public. It is difficult, however, to see how the defenders in practice could have adopted any other system of remuneration. It would probably yield the pilots but small returns to give them the dues, or a large portion of the dues, payable for each vessel which they brought in or took out of the harbour, for many of the vessels prefer to dispense with the pilot altogether. The only practicable mode of payment appears to be that adopted by the defenders, and which they would most probably act upon whether they license pilots or not, viz., to give them so much a-week or month for their services. If the defenders paid away the whole pilotage dues in this way, it would be extremely difficult for the pursuers to maintain the argument that the defenders incurred liability for the default of the pilots. In that case, though no doubt to some effect the legal relation of master and servant would subsist, yet in substance the pilots would, I think, be truly the servants of the public, and the defenders merely intervene to perform, for the benefit of the public resorting to the harbour, the duties of selecting the pilots and regulating their conduct and remuneration. It does not, in my opinion, make a difference in this case that the pilots do not receive the whole pilotage dues. It may fairly be assumed that under the general head of pilotage the ship is paying for something more than mere pilotage, including maintenance of pilot-boats; as, for example, such items as are mentioned in the return, No. 81 of process, of lights, and expenses in sounding the channel, and the like. In that view, the proper charge for the services of the pilot are truly paid by the owner or trader to the port, but for the sake of convenience, by the hands of the trustees. In any view, however, I think the owner or trader taking the benefit of a pilot's service is for the time his employer, and not the employer of the trustees; that the pilot, and not the truetees,

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undertakes the duty of bringing in the vessel to the harbour; that the trustees are the persons by means of whom the remuneration is given by the owner or trader to the port, the balance of the pilotage dues being, as authorised by Parliament, applied to harbour purposes. If this be the substance of the arrangement between the trustees and those who resort to the harbour, or the nature of the obligation which the law imposes on the Harbour Trustees, there is obviously no responsibility on the part of the trustees for the pilot's acts.

“The case of Ogilvie v. The Magistrates of Edinburgh, 22d May 1821, 1 S. 24, was mentioned in the course of the discussion. The report does not contain the opinions of the judges, but the case appears, when fully examined, to be a direct authority in support of the judgment I have pronounced. The session papers were not referred to by the defenders, but an examination of them made after this opinion was written has satisfied me that the judgment of the Court proceeded generally on the grounds to which I have given effect. The case appears to have been very elaborately argued in written papers, and must have been the subject of anxious consideration by the Court, who obtained reports from the various harbour authorities in the kingdom as to the practice in regard to pilotage. These reports are printed in the appendix to the pleadings. The case did not to any extent turn on any fault on the part of the magistrates as harbour trustees in not removing the sand-bank referred to in the report, but was decided on the footing of the accident having occurred through the fault of the pilot. The only difference between that case and the present appears to be, that the magistrates regularly licensed the pilots who were employed at the port of Leith. The pilots received two-thirds of the dues from the magistrates, the remaining third having been paid to the shore-master. He was referred to by the magistrates as pilot-master, but it appears to be clear from the papers that it was not in that limited capacity that he received a third of the dues. The case in substance appears to me to be scarcely distinguishable from the present, and the argument which received effect is very much based on the grounds on which the present judgment rests.

“It was pleaded on the part of the pursuers that the three persons in the position which M'Gill occupied were not to be regarded as pilots at all, but as what is called “hobblers,” whose proper duty was working in or about the harbour only. There is, I think, no room for this view on the evidence. It is sufficient to observe that the persons referred to performed the duties of pilots between points specified in the statute as the limits of the harbour for which pilotage dues were paid.

“In conclusion, I may say that if I had taken a different view of the defenders' liability, and had held them responsible for the fault of M'Gill, I should have found the pursuers entitled to £240 in name of damages. It appears to me that the part of the pursuers' account which was incurred in consequence of the beaching of the vessel, and the expense incurred in consequence of the unsuccessful attempt of the tug to drag her off the beach, was the reasonable and natural result of the injury caused by the pilot's carelessness, and I think it is proved that the pursuers' loss amounted to not less than that sum.”

Against this interlocutor the pursuer reclaimed' and argued—It is not now disputed that the defenders' pilot was in fault, and the trustees are liable for their pilot. There is here no compulsory pilotage. The defenders were a pilotage authority, but they did not proceed under the statute to license the pilot as a public officer, which would have protected them. They levied compulsory pilotage dues, part of which goes to general harbour purposes, and invited vessels to come in for safe berthage, and yet they sent out as pilot a “hobbler” from the dock, who was their own servant on shore, who was not properly qualified, and received no instructions. The pursuer's contract was with the Harbour Trustees, and their obligation was to give safe berthage and to take vessels in and out safely. A verbal authority was not sufficient to license a pilot under the Merchant Shipping Act.

Authorities— Mersey Docks and Harbour Board Trustees v. Gibbs, 5th June 1866, L. R., 1 E. and App. 93; Virtue v. Police Commissioners of Alloa, 12th December 1873, 1 R. 285; Thompson v. North-Eastern Railway Company, 1st February 1862, 31 L.J., Q. B. 194; Indermaur v. Dames, 6th February 1867, L. R., 2 C. P. 311; Smith v. London and St Katherine's Dock Company, 24th April 1868, L. R., 3 C. P. 326; Stephen v. Police Commissioners of Thurso, 3d March 1876, 3 R. 535; Thomson v. Greenock Harbour Trustees, 10th December 1875, 13 Scot. Law Rep. 155; Hammond v. Blake, 25th January 1830, 10 Barn, and Cress. 424; Ogilvie v. Magistrates of Edinburgh, F.C., 22d May 1821; Gen. Steam Navigation Co. v. Brit, and Col. Steam Co., 14th May 1869, L. R., 4 Ex. 238; Smith v. Steele, 25th January 1875, L. R., 10 Q. B. 125; Officers of State v. Christie, 2d February 1854, 16 D. 454.

Argued for defenders—The defenders are a pilotage authority under the Merchant Shipping Act. They make up and render accounts or pilotage returns to the Board of Trade under the 18th sect. They are entitled to pay pilots by wages or salary instead of giving them the whole or a percentage of dues. They are not bound to issue a written license, as the Act distinguishes “licensed” and “authorised” pilots (secs. 333–47, and interpretation clause), nor are they bound to frame regulations for the examination of pilots if they satisfy themselves as to qualifications, and the pilot is really competent. A license would not protect from liability for incompetent pilot. The pilotage dues are all discharged by expenditure for pilotage purposes, and could not be carried to general harbour account. The contract was either with pilot, or it was implied contract with pilotage authority to supply a competent pilot, not to pilot safely. In a non-compulsory district the pilot is undoubtedly the servant of the owner, who is liable for the pilot's negligence—Shearman and Redfield on Negligence (2d ed.) sec. 81 a; Story on Agency, sec. 456 a. If so, he cannot be also the servant of the harbour authorities. Maclachlan on Shipping (2d ed.) p. 267, n. 4, where it appears from Dr Lushington's judgment in “The Maria,” ( 1 W. Rob. Adm. 95,) that the two cases on the Liverpool Act ( Att.-Gen. v. Case, 3 Price 303, and Carruther's v. Sylebotham, 4 M. and Sel. 77) did not conflict, the one relating to a vessel outward bound, the other to a vessel coming up the river, and therefore requiring a pilot. Parsons on Shipping, ii. 116–7.

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At advising—