Scottish Court of Session Decisions

This was an action at the instance of Moatschappij Hoek-van-Holland, of Rotterdam, owners of the steam trawler “Fredrik Cornelis,” and mandatories, against the Clyde Shipping Company, Limited, owners of the steamship “Aranmore,” in which the pursuers sought to recover damages for the loss of the “Fredrik Cornelis,”

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which was sunk by collision with the “Aranmore” off the Wigtownshire coast.

The pursuers pleaded—“(1) The collision in question being entirely due to the fault of the defenders, or of those for whom they are responsible, the defenders are liable to the pursuers for the loss and damage resulting to the pursuers therefrom. (3) Esto, that there was any fault on the part of the pursuers (which is denied), the defenders having been in fault, the pursuers are entitled to damages apportioned in terms of the rule in Admiralty cases.”

The defenders pleaded—“(1) The said collision having been entirely due to the fault of the pursuers, the defenders should be assoilzied from the conclusions of the summons with expenses.”

A proof was led before the Lord Ordinary sitting with a nautical assessor.

The following narrative of the facts is quoted from the opinion of the Lord Ordinary:—“The ‘Fredrik Cornelis’ was a steam trawler of 153 tons gross register. She was 106 feet long, and was manned by a crew of twelve hands. The ‘Aranmore’ is a screw-steamer of 1170 tons, is 241 feet long, and at the time of the collision was on a voyage from Plymouth to Glasgow with a crew of twenty-six hands. When she first sighted the trawler, nearly an hour before the collision, the latter was engaged in trawling near the scene of the collision, and was exhibiting the regulation lights for vessels of her class. By the time that the two vessels came within half-a-mile or thereby of each other the trawler lay 1 1 2 points on the starboard bow of the ‘Aranmore,’ to which she was exhibiting her green light, her course being to the S.E., while the course of the ‘Aranmore’ was N.E. by N. The trawler had just taken in her net, and she then commenced to execute a manoeuvre but for which the collision would not have occurred. Without waiting till the ‘Aranmore,’ which was going at a speed of 11 or 12 knots, had passed her, she paid out her trawl, and in order to keep the net clear of her propeller she had to come sharply round to starboard, changing her course from S.E. to N.W., and exhibiting first her white and then her red light to the ‘Aranmore.’ She did this (the trawl being down) at a speed of, I think, not more than four or 5 knots, but her engines were never stopped or slowed, and indeed she took no steps to avert the collision of which her manoeuvre created an imminent risk, except by thrice giving one short blast of her whistle to indicate that she was going to starboard. The officer in charge of the ‘Aranmore’ was the second mate, and he saw what the trawler was doing. The night was fine, with bright moonlight, and the sea was moderate. He first lost the trawler's green light, then he saw her white light, and then her red. I think it is the result of the evidence that he did not take action till he saw the red light, and the action he took was first to stop and then reverse his engines, and to port his helm. During that interval of hesitation, which he excuses by saying that he wished to see what the trawler was going to do, and that she might have stopped, the ‘Aranmore’ had come about a quarter of a mile nearer the trawler—a distance which at her then speed she would cover in about 1 minute 15 seconds. It is unsatisfactory that there is no evidence from the engine-room of the ‘Aranmore,’ except that of an engineer who happened to be a passenger, and who, when he heard the telegraph ringing, ran forward to the engine-room door. His evidence certainly negatives the statement in condescendence 5, that the engines were not reversed till after the collision had occurred, but, on the other hand, it shows that the number of revolutions (18 to 24) was not sufficient to make any great impression on her speed. She struck the trawler aft of amidship, probably not more than 20 feet from the stern, and cut into her about 6 feet, so that a very little less speed, particularly with her helm hard-a-port and the additional cant to starboard caused by the operation of reversing, would have enabled her to pass clear astern. She did not sound any blasts with her whistle either to indicate that she was directing her course to starboard or that her engines were going full speed astern.”

The evidence of the second mate of the “Aranmore” with regard to the action which he took, and the belief in which he acted was, inter alia, as follows:—“From the moment I lost the green light my view was that he (the trawler) was coming round and that a collision would take place. (Q) Why didn't you stop and reverse then?—(A) It was then I did it. (Q) No, you waited till the white opened and the red opened?—(A) Well, it just opened immediately.”

The engineer of the “Aranmore” was not examined, but a scrap log-book kept by him was lodged in process and admitted by parties to be in his handwriting. In it the following entries appeared:—“Stop, 1.50 a.m., 31st March. A/S full, 1.52 a.m., Collided with trawler. Stop, 1.54 a.m.”

The nature of the evidence otherwise sufficiently appears from the opinions of the Lord Ordinary and the Judges in the Inner House, infra.

The regulations for preventing collisions at sea provide, with regard to sound signals for vessels in sight of one another, as follows:—“A steam vessel under way, in taking any course authorised or required by these rules, shall indicate that course by the following signals on her whistle or syren, viz., one short blast to mean—‘I am directing my course to starboard.’ … Three short blasts to mean—‘my engines are going full speed astern.’”

The composite light carried by steam trawlers in lieu of those carried by ordinary steam vessels is described as follows in the regulations for preventing collisions at sea:—“On or in front of the foremost head and in the same position as the white light which other steamships are required to carry, a lanthorn showing a white light ahead, a green light on the starboard side, and a red light on the port side, such lanthorn

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shall be so constructed, fitted, and arranged as to show an uniform and unbroken white light over an arc of the horizon of four points of the compass, an uniform and unbroken green light over an arc of the horizon of ten points of the compass, and an uniform and unbroken red light over an arc of the horizon of ten points of the compass, and it shall be so fixed as to show the white light from right ahead to two points on the bow on each side of the ship, the green light from two points on the starboard bow to four points abaft the beam on the starboard side, and the red light from two points on the port bow to four points abaft the bow on the port side.”

On 5th March 1902 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Decerns against the defenders for payment to the pursuers of the sum of £2700 sterling in full of the conclusions of the summons: Finds no expenses due to or by either party, and decerns.”

Opinion.—“The problem here is to determine the responsibility for a collision which occurred about 2 a.m. on 31st March 1901, a few miles to the south-west of Ailsa Craig, between the Dutch steam trawler ‘Fredrik Cornelis’ and the steamship ‘Aranmore’ of Glasgow, which unhappily resulted in the sinking of the ‘Fredrik Cornelis,’ with the loss of seven hands, including her master and mate.

“There is less conflict of evidence than often happens in collision cases, and the main facts may therefore be stated with tolerable certainty—[ His Lordship narrated the facts ut supra] …

In these circumstances the question is essentially one turning rather on good seamanship than on credibility of evidence, and for that reason I attach all the more importance to the opinion of the Trinity Master who sat with me on the case.

The following are the questions which I addressed to him, and the answers which he returned—

Question 1. Having regard to the fact that on the night of the collision there was clear moonlight and a moderate sea, and that the ‘Aranmore’ was in full view of the ‘Fredrik Cornelis’ for about an hour before the collision, was the ‘Fredrik Cornelis,’ in your opinion, to blame in executing the manoeuvre by which her head was brought across the course of the ‘Aranmore’?

Answer. ‘The “Fredrik Cornelis” was, in my opinion, to blame for executing the manoeuvre of altering her course from S.E. to N.W. when on the starboard bow of the “Aranmore,” and distant a quarter-of-a-mile, by which her red light was suddenly exhibited, indicating that her course had been changed and leading across the course of the “Aranmore.” There was clear moonlight, and the master of the “Fredrik Cornelis” may have assumed that having been visible to the “Aranmore’ for fully an hour he might presume on altering his course when close to that ship. It would have been more seamanlike to have waited until the ship had passed, and I cannot approve of his manoeuvre.’

Question 2. Having regard to the aforesaid conditions as to weather and sea, and that the ‘Fredrik Cornelis’ was in full view of the ‘Aranmore’ for about an hour before the collision, did the officer in charge of the ‘Aranmore,’ in your opinion, take all the steps which a prudent seaman ought to have done to avert the collision?

Answer. ‘The “Aranmore” did not take prompt action to avert the collision by stopping and reversing when distant a quarter-of-a-mile, neither did she sound her port-helm signal, and signal for revers ing engines full speed astern. The “Fredrik Cornelis” had been in sight for an hour, the weather was fine and clear, smooth sea, and clear moonlight, the steering powers of the ship were good, and in the weather recorded there was nothing to impede her turning circle under port-helm, or the reversing power of her screw. I consider the manoeuvres of the “Aranmore” under the direction of her second mate were not those of a prudent seaman, or calculated to avert the collision.’

These answers are in accordance with my own opinion. Looking to the conditions of weather and sea, it is impossible to say that this collision was a pure accident. Undoubtedly it ought not to have occurred. The primary cause was, I think, the sudden manoeuvre by which the trawler changed her course from S.E. to N.W., regardless of the fact that the steamer was rapidly approaching within half-a-mile of her. Why she did not adopt the simple plan of waiting till the steamer had passed before putting down her trawl I cannot conceive, except on the supposition that her master considered it to be the ‘Aranmore's’ duty to keep out of his way whatever he might do. It is of course a misfortune that death has deprived the pursuers of his evidence, but there is probability, although perhaps not much reason, in the answer given by the first witness for the pursuers to the question, ‘Don't you think you should have waited before shooting your nets till the steamer had passed?’ His answer is, ‘There are so many boats passing you might as well wait all night.’ It is, I am afraid, according to human nature that, even when their own lives are at stake, men will doggedly go on with what they are doing rather than give way to somebody else whom they regard as bound to keep clear of them. It seems to me that, apart altogether from the regulations, the trawler was to blame for executing this sudden manoeuvre.

With regard to the ‘Aranmore,’ I do not overlook the fact that her second mate was placed in a position of some difficulty by the conduct of the trawler. If it could be said that after he saw what she was doing there was no time to avert the collision except by the exercise of more than ordinary skill or judgment, this defence would probably avail the defenders. But he admits that he saw what she was doing from the moment he lost her green light. If at that instant he had done what he presently

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did, it is, I think, certain that there would have been no collision. But he hesitated. There was probably not much more than a minute of hesitation, but it was enough to seal the fate of the trawler. I cannot accept the suggestion of the pursuers that he ought to have starboarded his helm. If he had done so I think he would have incurred a very serious responsibility, because he would have been attempting to cross the bows of the trawler. What he did was I think right, but he did it too late. Strictly speaking he ought also to have sounded his whistle to show that he was going to starboard and that he was reversing his engines. But the essential fault was that he ought to have stopped, reversed, and ported at once, instead of going on at full speed in the hope that the trawler might do something to avoid him.

Both vessels being thus, in my opinion, to blame for the collision, and the admitted damages being £5750 in the case of the trawler, and £350 in the case of the ‘Aranmore,’ the result is that I give decree for £2700, and find neither party entitled to expenses. The finding as to expenses will not of course prejudice the pursuers' right to recover from the defenders one-half of the sums paid by them to the Nautical Assessor.”

The defenders reclaimed—The case was heard with a nautical assessor, Captain A. W. Clarke.

Reclaimers argued—The trawler alone was to blame. The speed at which she was turning would necessarily make the interval between the opening of her white and red lights very short, and the mate of the “Aranmore” being placed in a position of difficulty by her fault did not delay unduly, even if the danger should have been apparent when the white light opened— Hine Brothers v. Clyde Trustees, March 7, 1888, 15 R. 498, 25 S.L.R. 364; The “Kwang Tung” v. The “Ngapoota,” (1897) AC 391. The engineer of the “Aranmore” not having been examined, his scrap logbook could not be accepted as contradicting the weight of the evidence. By the time the “Aranmore's” engines were stopped and reversed and her helm put hard aport it was too late for any information by signal as to her movements to be of any use to the trawler.

Argued for the respondents—The sole blame was attributable to the “Aranmore”; the fact that she neglected to indicate her course by the prescribed blasts on her whistle relieved the trawler of responsibility. The engineer's logbook was good evidence against his own ship— The “ Singapore” v. The “Hebe” (1866), L.R., 1 P.C. 378. The entries in that book being contemporary evidence should be relied on. According to those entries there was a considerable period between “stop” and “full speed astern.” The “Aranmore” should have stopped and reversed the moment the trawler's movements became apparent, which was at latest when the white light was opened— The “Nord Kap” v. The “Sandhill,” (1894) AC 646; The “Voorwarts” v. The “Khedive” (1880), 5 App. Cas. 876; The “Stanmore” (1885), 10 P.D. 134.

At advising—