Scottish Court of Session Decisions

The certificate of Henry Braeter, lately master of the steamship “Sevilla” of Glasgow, which was lost off the east coast of Harris on 20th May 1889, was suspended for twelve months by a decision of a Court of Inquiry, consisting of one of the Sheriff-Substitutes of Lanarkshire, and two Nautical Assessors, dated 28th June 1889. Against this decision Braeter appealed to the Court

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of Session under the provisions of the Shipping Casualties Investigations Act 1879, and the Shipping Casualties (Appeal and Rehearing) Rules 1880, and craved that the same in so far as it found that he was in fault, and in so far as it suspended his certificate, should be recalled as contrary to the evidence adduced. He also moved the Court for leave to lead further evidence bearing upon the loss of the vessel in terms of rule 6, sub-section ( h) of the above rules, which evidence he alleged he had had no opportunity of obtaining and adducing at the inquiry.

The grounds of the decision of the Court of Inquiry as set forth in their deliverance were—That the loss of the vessel was due to her position when off Skerryvore not having been properly ascertained, and also to the careless manner in which the bearings were taken when off Ushinish and the south end of Harris. The Court also found, in answer to the questions submitted by the Board of Trade, that proper allowance was not made for tide or currents, although the tide was on the starboard-bow setting in towards land, that the master was not justified in keeping so close to the land, and that the contention that the rock on which the vessel struck was not marked on the chart could not be accepted by the Court, which failed to see that the manner in which the master navigated his vessel was careful enough to justify the conclusion that it was any other than the “Poor Woman's Rock.”

The note of appeal was lodged on 4th July 1889, but owing to the master having applied also to the Board of Trade for a rehearing under the above Act, which was refused, the note of appeal, with the judgment and reasons of the Court of Inquiry and the evidence led before that Court, was not boxed until 22nd October. Their Lordships then appointed the note of appeal to be heard before them and two of the Elder Brethern of the Trinity House on 5th November.

The master deponed before the Court of Inquiry that he ascertained his position off Skerryvore by a five point bearing at 5 a.m. of the 20th May, and found himself to be six miles off the Lighthouse, bearing S.E. by E. by the pole compass, which had a quarter of a point easterly deviation; that he then set a course N.E. by N. by pole compass; sighted Ushinish about 11 o'clock, and ascertained his distance when abeam by a three point bearing to be seven miles; sighted the south end of Harris about 2·40 p.m., and by a two point bearing ascertained his distance to be four to five miles; that he then altered his course to E.N.E. by compass, which was correct on that course, and at 3.38 sighted Glass Island Lighthouse a quarter of a point on his port-bow; that he then altered his course about half a point more to the eastward, and that about two minutes thereafter the ship struck upon a sunken rock not marked on the chart (or, as he now alleged from evidence since obtained, possibly upon a sunken wreck), and shortly afterwards sank. He denied that his vessel struck on the “Poor Woman's Rock,” and stated that when she struck she must have been from a mile and a half to two miles to the south-west of it, and about one mile and a half from the land. Those of the crew who were examined agreed with the master as to the distance from the land. The “Poor Woman's Rock” is about 800 yards from the land.

At the hearing on the appeal it was argued for the master—The judgment was contrary to the evidence. The Court below had found the master in default, not on the evidence, but on inferences therefrom which were erroneous, and without giving the master an opportunity of explanation as to same. The master had since the inquiry obtained the evidence of persons who had seen the vessel sink, and had ascertained her present position by soundings, and this evidence would show that it was impossible the ship could have struck on the “Poor Woman's Rock.” The notice that the inquiry was to be held was served on him only two days previously, and contained no particulars of the faults to be alleged against him, and he had had no opportunity of adducing this evidence at the inquiry.

Argued for the Board of Trade—The master must account for the loss of the ship, and he had failed to do so. The suggestion that there could be a sunken rock at the place in question not marked on the charts was absurd, and was not supported by any evidence. There was also no evidence of the existence of any sunken wreck. The additional evidence now proposed to be adduced was too vague.

At advising—