Scottish Court of Session Decisions

On 2nd January 1896, in a thick bank of fog off Arran, the steamship “Rossgull” sailing southwards came into collision with the steamship “Spaniel” sailing northwards. The collision resulted in damage to both vessels.

The Earl of Leitrim's trustees, the owners of the “Rossgull,” and G. & J. Burns, steamship owners, Glasgow, owners of the “Spaniel,” raised cross actions of damages in the Sheriff Court at Glasgow. The pursuers in each action pleaded that the collision was solely due to the fault of the defenders.

The following narrative of the facts as established at the proof is taken from the note of the Sheriff-Substitute ( Erskine-Murray) “The steamship ‘Rossgull,’ 90 tons register, 130 feet long, belonging to the parties Leitrim and others. was, during the night and early morning of 2nd January last, on a voyage from Greenock to Portrush. The captain went below about 11·25 p.m. off Wemyss Bay. At that time the night was dark but clear. The ‘Rossgull’ was left by him in charge of the mate, Archibald Campbell, a certificated master. No other person remained with the mate on deck except the steersman John M'Connell, A.B. It began to be a little hazy near the Cumbraes, and the ‘Rossgull's’ whistle was blown occasionally. From the Cumbraes her course had been S.W. by S. 3 4 S. Catching a glimpse of Holy Island as they passed the north end of Lamlash Bay, the mate altered his course a 1 4 of a point to S.W. by S. 1 2 S. Immediately thereafter she ran into a bank of very thick fog at the back of the Holy Island. This was about ten minutes or a quarter of an hour before the collision. Several steam whistles in different directions were heard by the mate or the steersman; more especially two whistles were heard pretty nearly ahead, which must have been from the ‘Spaniel.’ But the ‘Rossgull’ continued to go at her full speed, which is about 10 knots, for the purpose, apparently, of picking up the light at the south end of Holy Island at her correct time.

Meantime the steamship ‘Spaniel,’ 250 feet long, belonging to the parties G. & J. Burns, on a voyage from Belfast to Glasgow, and under the command of Captain Horner, entered the same bank of fog, also about a quarter of an hour before the collision. From Dippen Point, in Arran, her course had been N.E. by N. magnetic. When she entered the fog, the captain had the engines slowed from full speed to dead slow, so that, in Captain Horner's opinion, she was going 34 to 4 knots an hour at the time of the collision. Several whistles were heard from the ‘Spaniel,’ notably two right ahead, or a little on the port bow, which must have been from the ‘Rossgull.’ To avoid the vessel thus whistling, the ‘Spaniel's’ course was altered to east by south, which she was steering at the time of the collision.

“About two o'clock those in the ‘Rossgull’ first noticed the red port light of the ‘Spaniel’ within 200 feet off. The helm of the ‘Rossgull’ was immediately put hard to port, and the engines immediately stopped and reversed, but it is clear that the way was not all off her at the time of the collision. The ‘Spaniel,’ about the same instant, or soon thereafter, noticed the mast-head of the ‘Rossgull’; no change was made on her course or engines. The ‘Rossgull’ struck the ‘Spaniel’ at an acute angle. She got entangled with the ‘Spaniel,’ and being much lighter was pulled round by the ‘Spaniel’ as she surged forward. Both vessels were injured by the collision.”

The Regulations for Preventing Collisions at Sea under Order of Council, 11th August 1884, provide as follows (article 18):—“Every ship, whether a sailing ship or steamship, shall in a fog, mist, or falling snow, go at a moderate speed.” (Article 18) “Every steamship, when approaching another ship so as to involve risk of collifion, shall slacken her speed, or stop and reverse if necessary.”

On 2nd December 1896 the Sheriff-Substitute ( Erskine Murray) pronounced the following interlocutor:—“Finds (1) that the steamship ‘Rossgull,’ belonging to the parties Leitrim and others, on 2nd January last, at 2 a.m., in a dense fog, collided off Holy Island with the steamship ‘Spaniel’ belonging to the parties Burns & Company, and both vessels were injured, and actions of damages have been raised by both parties, which have been conjoined: Finds (2) for the reasons assigned in the note annexed hereto, that the said collision occurred through faults on the part of those in charge of both vessels, and that therefore the rule as to the allocation of the loss in such cases comes into play.

Note.—[ After stating the facts as above narrated]—“Which vessel was in fault, or were both? It is clear, in the first place, that the ‘Rossgull’ was in fault. She had no business to be going at full speed through a dense fog, which a number of whistles showed concealed a number of vessels, in

Page: 750↓

breach clearly of articles 13 and 18 of the Regulations for Preventing Collisions at Sea, especially as from the whistles she knew she was approaching another ship, and this fault contributed to the collision.

The case of the ‘Spaniel’ is not quite so clear. She had no business to alter her course in the fog so seriously as to run E. by S. She might thereby have well deceived as to her position any vessel that had heard her previous whistles. Rule 15 does not apply except in cases where vessels or their lights are seen. Still the Sheriff-Substitute is not convinced that the error of the ‘Spaniel’ was one of the causes of the collision.

But rules 13 and 18 apply in the case of the ‘Spaniel’ as well as in the case of the ‘Rossgull’ though in a minor degree. Rule 13, that in a fog a vessel must go at moderate speed, applies whether or not there is reason to believe that another vessel is being approached. Had there been no such reason, however, it might fairly be said that 3 1 2 to 4 knots was only ‘a moderate speed.’ But from the ‘Rossgull's’ whistles the ‘Spaniel’ must have known that she was approaching another ship so as to involve risk of collision.

In these circumstances in such a dense fog—so dense that clearly the whole length of the ‘Spaniel’ could hardly be visible from her own deck—even 3 1 2 to 4 knots was too great a speed. This also contributed to the collision.

The Sheriff—Substitute is therefore of opinion that the collision was caused by the faults of those in charge of both vessels. The rule as to allocation of damages in such cases must therefore apply. Both parties have agreed in deferring the questions of the amount of damage till the decision of the question of liability. It will therefore be for the parties either to come to some arrangement as to the amount of damage, or to have another diet of proof fixed for the determination of these questions.

A number of cases have been referred to on both sides, specially those of the ‘ Nerano,’ 22 R. 237, and the English cases of the ‘ Kirby Hall,’ 8 Prob. Div. 71; the ‘ Zadok,’ and the ‘ John M'Intyre,’ 9 Prob. Div. pp. 114 and 135 respectively; the ‘ Ceto,’ 14 App. Cas. 670; the ‘ Dordoque,’ 10 Prob. Div. 6; the ‘ Lancashire,’ App. Cas. 1894, p. 1, and Prob. Div. 1893, p. 47; the ‘ Resolution,’ 6 Aspinall 362; ‘ Vindomora,’ 14 Prob. Div. 172; and Appeal Cases 1891, p. 1, may be referred to as bearing more or less on the present case.

The case of the ‘ Zadok’ was referred to by the parties Burns as showing that a vessel under article 13 has only to reduce her speed so far as she can consistently with keeping steerage-way.

The ‘ Zadok,’ a sailing vessel, was going about 5 knots, which was held in the circumstances to be too fast. But the point raised was simply under rule 13, as rule 18, about stopping and reversing, only applies to steamers. The rule about stopping and reversing must necessarily to some extent interfere with steerage-way in certain circumstances.

The ‘ John M'Intyre’ was the case of a steamer in similar circumstances, and it was held that her duty was to stop and reverse; and the ‘ Kirby Hall’ was another of a very similar nature. Really, in a fog, the question is more one of common sense and reasonable care than of law.”

Thereafter on 18th March 1897 the Sheriff-Substitute found that the damage sustained by the “Rossgull” through the collision amounted to £840, and the damage sustained by the “Spaniel” amounted to £548, and on 30th March, in the action by the Earl of Leitrim's trustees against G. & J. Burns, he decerned against the defenders for £146, and in the action by G. & J. Burns against the Earl of Leitrim's trustees he assoilzied the defenders.

Against this interlocutor the owners of the “Spaniel” appealed, and argued—Each case of this kind depended upon its own circumstances. No hard-and-fast rule could be laid down applying to all such cases—The “ Vindomora,1891, App. Cas. 1. Here the “Rossgull” was admittedly to blame; she was going at full speed through a dense fog. The onus was therefore on her to show that the “Spaniel” was in fault. The “Spaniel” was entitled to assume that the vessel approaching her was not flagrantly breaking the regulations by going at the reckless speed at which the “Rossgull” was steaming—opinion of Lord Justice-Clerk Kingsburgh in the “ Tliorsa,” June 23, 1893, 20 R. 884. Before the “Spaniel” could be found in fault it must be shown that the circumstances were such as to make it reasonably apparent that there was a risk of collision if the ship went on its course—The “ Lancashire,” 1894, App. Cas. 1. “The Spaniel” was proceeding at “dead slow” against the tide, and there was no reason to apprehend that the “Rossgull” was approaching her so as to cause a risk of a collision and necessitate her stopping and reversing. The “Spaniel” had therefore not violated the regulations—The “Nerano” v. The “Dromedary,” January 10, 1895, 22 R. 237.

Argued for the owners of the “Rossgull”—Although the “Rossgull” was admittedly in fault, if it was shown that the “Spaniel” was also in fault, the owners of the latter must be held to be also responsible for the accident. Although “dead slow” might be a reasonable speed at which to move through a fog, it ceased to be so when the whistle of another vessel was heard approaching. In such circumstances the duty of the vessel under article 18 was to stop and reverse—The “ Kirkby Hall,” 1883, L.R., 8 P.D. 71; The “ Ebor,” 1886, L.R., 11 PD 25. A ship proved to have infringed any of the regulations was deemed to be in fault—The “ Duke of Buccleuch,” 1891, App. Cas. 310. All that they had to show was that the regulation was applicable in the circumstances, and that it had been broken by the “Spaniel.” If it was applicable and had been broken, and the breach of it might possibly assist in causing the accident, it was not competent for the “Spaniel” to attempt to show that in fact it did not contribute to

Page: 751↓

the accident. The only defence was that the “Spaniel” was entitled to put forward was that the regulation 18 was not applicable in the present circumstances. The judgment of the Sheriff-Substitute should be affirmed.

At advising—