Scottish Court of Session Decisions

Walter Bain Niven, steamship owner, Glasgow, registered owner of the s.s. “Denia” of Troon, an iron screw steamer of 248 tons gross and 97 tons net register, raised against the Trustees of Ayr Harbour, incorporated under the Ayr Harbour Act 1855, an action of damages for £1100 on account of injuries received by the “Denia” while lying in Ayr Harbour on the night of 21st and morning of 22nd December 1894.

The defenders pleaded—“(2) The damage sustained by the pursuer having been caused, or at all events materially contributed to by the master or other persons in charge of the ‘Denia,’ the defenders ought to be assoilzied, with expenses. (3) The damage sustained by the ‘Denia’ not having been caused by any fault of the defenders, or those for whom they are responsible, the defenders ought to be assoilzied. (4) Separatim, the accident condescended on being the result of a damnum fatale, the defenders are entitled to absolvitor.”

The Lord Ordinary ( Stormonth Darling) allowed a proof, which disclosed the following facts:—On 21st December 1894 the “Denia” loaded a cargo of coals for Belfast in a crane berth on the north side of the river at Ayr Harbour. She finished loading at 9·20 p.m. Everything was made ready for sea, but as the master thought the night looked threatening and the barometer was falling, he decided to remain in harbour. The loading-berth was required for another steamer expected to arrive, so in accordance with the custom of the harbour, Sloan, the assistant deputy-harbourmaster, a man of 68, ordered the “Denia” to be removed from that berth to another. Sloan's evidence was that he had given the master of the “Denia” the choice of two berths, one in the dock basin and the other at the slip dock, and that the master chose the former. The master on the other hand stated that he had got no choice, that he was ordered by Sloan to take his vessel to the dock basin. The dock basin was a safe berth except in the case of a storm from the W. or N.W. It then became dangerous, as the wind drove a heavy sea into the harbour, and the dock basin received no protection from the breakwater. The “Denia” was berthed in the dock basin at eleven o'clock. At that time the wind was blowing from the S.S.E., and the berth was quite safe. Evidence was led for the pursuer showing that if the wind arose in the S.S.E. in all probability it would go round to the W. and then to the N.W.

In regard to this matter Dr Alexander Buchan, secretary to the Scottish Meteorological Society, who was examined for the defenders, and whose evidence was based upon observations taken at all the Scottish lighthouses and recorded in the journals of the society for a period of 20 years, deponed as follows:—“I have gone into the question of the course pursued by the storms on the west coast of Scotland beginning between S.E. and S.W. with special reference to the numbers that veered and the direction in which they veered, and the length to which they veered. (Q) Can you give us your results upon that? [Question objected to; objection repelled.]—(A) I simply speak here of the facts reported, and give no opinion. The question is, what proportion of storms beginning from S.S.E. round to S.S.W. veered round during their continuance to N.W. The following is a summary of the cases examined during twenty Decembers ending 1894. The two lighthouses examined were the two nearest to Ayr, Turnberry and Pladda. In all, 96 storms were reported on by the lighthouse keepers. Of these 41 began from S.S.E., S., or S.S.W. Grouping these 41 cases, the following are the results: (1) Storms not attended with any change of direction of wind at all, 6. I am not speaking of the veering of the wind generally, but strong winds rising to storms. (2) Storms which did not veer but backed to east, 4. (3) Storms which veered from the southward only to the S.W., and did not go further to the north, 9. (4) Storms which veered from the southward only to west, 11; that is to say, 30 did not get beyond west. (5) Storms which veered from southward to N.W., 10; and 1 got to north. [Thus in 22 cases out of 41, storms beginning in the S.S.E., S., or S.S.W., veered to the W. and N.W.] Cross.—I have also looked into the question of the storms which commenced in the S.W. Of these

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five veered to west, two veered to N.W., and three veered to north—in all ten beginning at S.W., all the storms that began in the S.W. veered to W. and N. (Q) Is it a matter of familiar experience that storms that begin in the S. or 8. W. veer westward and blow themselves out in the N.W.?—(A) Some do and some do not. I have stated the proportion as nearly as I can. From the facts which I have collated I would say that by far the most of the storms that begin in the S.W. finish off in the W. or N.W. I cannot at the present moment point to one contrary instance. Re-examined.—Of the four storms which began at S.S.E., S., or S.S.W., and backed to E., two began from S. to S.E. The great majority of those that moved westward did not get beyond west. In fact there is a common proverb in the west of Scotland that ‘the west wind is a gentleman and goes to bed.’ It is familiar to us that when the wind goes to the west it tends to fall. I put in tables showing the classification of the ninety-six storms of which I have spoken.”

During the night the wind veered round to the west and north-west, and increased to a violent gale. Between 2 and 3 a.m. the “Denia” began to suffer in consequence of being exposed to the gale. The storm increased in violence, so that between 5 and 8 the vessel was bumped and dashed against the quay wall where she was lying and sustained serious damage. The tempest was so violent that nearly all the vessels in the harbour that night sustained some damage.

On 5th February 1897 the Lord Ordinary decerned against the defenders for payment of £750.

“ Note.—There can be no doubt about the proposition in law on which this claim of damages rests. It is, that managers of a harbour who provide accommodation for shipping, and invite vessels to use it, are bound to use reasonable diligence to prevent the occurrence of injury to the vessels. They do not insure against accident, but if they fail in using reasonable diligence to prevent it they are liable in damages.

This claim, accordingly, is laid on culpa, and the culpa alleged is that on a stormy night in December 1894 the assistant-deputy harbour-master, an old man named Sloan, ordered the pursuer's steamer the ‘Denia’ (248 tons gross register) out of a safe berth into an unsafe one, where she was exposed to the full force of wind and sea, and thereby sustained very serious damage. The defenders say that there is no case in the books in which managers of a harbour have been made liable for injuries arising from stress of weather. That may be; the cases under this head are not very numerous altogether. But I see no difference in principle between liability for a careless order which, for example, sends a vessel aground, and liability for a careless order which deprives her of the very protection against the elements which harbours profess to afford.

Of course it must be shown that the order was careless, and one element of the carelessness must necessarily be that the harbourmaster could have done better for the ship. In this case it is certain that he could not have done worse, for the proof establishes beyond all doubt that the dock basin berth is the most dangerous berth in the harbour when the wind blows strong from the west or north-west. It was abandoned principally for that reason by the Ayr Shipping Company in 1892; and Mr Bain, one of the partners of that company (as well as one of the harbour trustees), admits that ‘it is not a regular berth, but is only used for putting a vessel into before or after loading.’

Now, the ‘Denia’ had just completed her loading, and if she had been waiting in the harbour for any other reason than stress of weather it might have been quite safe to put her there. But her skipper told Sloan that he was not going to sea because of the gale, and nobody says that he was wrong in that decision. There were all the indications of a dirty night—a rapidly-falling barometer and an increasing gale from the south. Moreover, the scientific and seafaring witnesses are agreed in saying that when these conditions exist there is a strong probability of the wind getting more and more westerly until it dies away in the north-west.

There is evidence to the effect that about 11 p.m., when the change of berth took place, the dock basin was safe enough, for the wind was then from the south. But probability must be the guide of harbourmasters as of other people, and it seems to me that Sloan ought to have anticipated that the probable course of the storm would make that berth the worst in the harbour.

What, then, ought Sloan to have done? The pursuer's case on record is, that he ought not to have moved the ‘Denia’ from the berth where she loaded. If he had left her there, she would probably have fared just as the ‘Kathleen’ did, which took her place, and that would have meant receiving very little injury. But I do not think it can be said that there was negligence in the mere act of moving her, so long as she was given an equally safe berth elsewhere. Sloan acted as he did from pure routine, without, I believe, bestowing a thought on the prospects of the night; and it was according to strict routine that a vessel having completed her loading should give place at a crane berth to another vessel which was expected to arrive for the purpose of unloading.

But in my view of the evidence it is vain to say that Sloan might not have found a much safer berth for the ‘Denia.’ Indeed, his own evidence is conclusive on that point. He says that he offered the master of the ‘Denia’ a berth in the slip basin on the south side of the harbour, and that the master preferred the other. I have great doubts whether any such choice was distinctly offered. If it had been, I think it would have been averred on record, and it is not. That the slip basin was mentioned as a possible berth either by Sloan or by one of the pilots I do not doubt, but Sloan himself does not profess that he either thought or said that the

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slip berth would be the safer of the two, and I have no idea that a harbourmaster can evade responsibility for his berthing orders by throwing alternatives at the head of a shipmaster without explanation, and letting him please himself. If he tenders two berths, and does not indicate a preference for either, he must be taken as representing that both are suitable and safe. While, therefore, the rather unsatisfactory evidence as to the offer of the slip berth does not avail to relieve the defenders of responsibility, it helps the pursuer by showing that there was at all events one vacant berth where the ‘Denia’ would have been in comparative safety. I think there was at least one other, because the evidence shows that there were six berths on the north side of the river, and only four of these were occupied on the night in question. A fifth was retained for the ‘Carrick,’ which did not come in that night, but room might quite well have been found for the ‘Denia’ in the sixth if Sloan had wished to do so. The truth is, that he never applied his mind to the subject, because he did not expect the night to turn out so bad as it did. I confess to learning with some surprise that the management of Ayr Harbour admits of an old man like Sloan being left in sole charge during what the defenders themselves describe as ‘one of the most violent storms which have been experienced in Scotland for many years,’ and that no provision is made for summoning the harbourmaster, or even the deputy harbourmaster in such an emergency.

This leads me to notice in a word the defence of damnum fatale. That defence is never effectual in questions of negligence, unless the act of God is such that no human prudence could have foreseen it, or have averted the consequences. In this case the storm was violent, but it was not unprecedented. The statistics kept at Glasgow Observatory show that during the last twelve years there have been eight gales of greater velocity.… I am therefore of opinion that the defenders’ representative was in fault in ordering the ‘Denia’ to a berth which was likely to become, as it did become, dangerous in the course of a few hours.” …

The defenders reclaimed, and argued—Ayr Harbour was an open harbour exposed to all kinds of weather. The “Denia” was placed in a regular berthing-place, a berth safe in all except exceptional circumstances, and safe at the time the vessel was put into it. The wind veered round and a storm arose six or seven hours after the vessel had been berthed, but there was no liability upon harbour trustees to guarantee safe mooring for vessels in all weathers. All that they had to do was to provide reasonably safe accommodation in ordinary circumstances. The Lord Ordinary founded his judgment on the assumption that Sloan should have foretold the change in the wind and the coming of the tempest. But that was an impossibility, and the harbour authorities while bound to see that the men whom they placed in charge of the harbour were skilled and experienced seamen, could not be expected to supply servants who were skilled meteorologists. The trustees of the harbour had taken all reasonable means to provide for the safety of vessels berthed therein, and there was no fault or negligence proved on the part of themselves or their servants — Thomson v. Greenock Harbour Trustees, July 20, 1876, 3 R. 1194; The “ Excelsior,” 1868, 2 A. & E. 268, Sir R. Phillimore's opinion, pp. 270, 271.

Argued for pursuer—The berth was dangerous on the night in question. It was the invariable rule in the south-west coast of Scotland for a gale which commenced in the S.S.E. to veer round into the W. or N.W. before dying down. No option had been given to the master of the “Denia;” he had been assigned this dangerous berth. The statement by the defenders that a choice of two berths was given to him was incorrect and an afterthought; there was no reference on record to such a choice having been given. A shipowner paid dock rates for safe accommodation, and was entitled to expect that his ship should not be exposed to danger while lying in the berth for which he had paid—opinion of Blackburn, J., in the Mersey Dock Trustees v. Gibson, 1866, L.R., 1 E. & I. App. 107. The damages should not have been modified by the Lord Ordinary. If the harbour authorities put a ship into a dangerous position, and the ship was injured, they could not be allowed to plead in defence that if something had been done by those in charge of the ship the damage would have been less.

At advising—