Scottish Court of Session Decisions

Alexander Craig, fish porter, Aberdeen, brought an action against (1) the Aberdeen Harbour Commissioners, and (2) the Caledonian Steam Trawling Company, Limited, Aberdeen, registered owners of the steam trawler “Edinburgh,” in which he craved the Court to ordain the defenders jointly and severally, or severally, to pay him the sum of £200 damages for personal injury.

The pursuer averred—“(Cond. 4) On the morning of 3rd January 1908 the pursuer was engaged by the mate or other officer of the steam trawler ‘Nettle’ to assist in discharging the catch of the ‘Nettle,’ and afterwards to assist in cleaning up and preparing the ‘Nettle’ for sea In doing so it was necessary for him to draw water from the harbour by means of a bucket attached to a rope. The stem of the ‘Nettle’ was then close up against the Fish Market Wharf. The vessel was lying at an angle to the wharf with another trawl boat on each side of it, too near to permit of another trawl boat to lie between the ‘Nettle’ and the boat on either side. (Cond. 5) … The harbour-master (Captain James Crombie) was unable to give the steam trawler ‘Edinburgh,’ belonging to the defenders the Caledonian Steam Trawling Company, Limited, a berth on its arrival in the harbour on the afternoon of 2nd January. The ‘Edinburgh’ accordingly lay off the wharf until the morning of 3rd January until about 10 o'clock, when the harbourmaster or his assistant (Mr Wyness), both of whom were then on the wharf close to the ‘Nettle,’ and in full view of all that was taking place on the deck of the ‘Nettle,’ directed the officer in charge of the ‘Edinburgh’ to approach the wharf. After the ‘Edinburgh’ had approached so far towards the wharf as to be alongside of the ‘Nettle's’ stern the harbour-master or his assistant directed one of the crew on board the ‘Edinburgh’ to attach the wire rope from the ‘Edinburgh's’ winch to the stem of the ‘Nettle,’ his purpose apparently being by applying steam to the ‘Edinburgh's’ winch to pull the ‘Nettle’ out from the wharf and pull the ‘Edinburgh’ into its place, and so provide the ‘Edinburgh’ with the berth occupied by

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the ‘Nettle.’ The ‘Edinburgh's’ rope was accordingly made fast to the ‘Nettle's’ stem, with the resuit that it hung loosely from the stem of the ‘Nettle,’ along its side, and below the level of the ‘Nettle's’ deck, up to the ‘Edinburgh's’ winch, which is placed in a position about the middle of the vessel. The pursuer was attending to his duties on board the ‘Nettle,’ and was not aware of the rope having been placed in this position. The man in charge of the ‘Edinburgh's’ winch was John Robert Markam, the mate of the ‘Edinburgh.’ (Cond. 6) The harbour-master and his assistant and Markam were all within a few yards of the side of the ‘Nettle,’ and had a clear view of its deck. They all knew, or ought to have known, that on steam being applied to the winch the wire rope would come up the side of the ‘Nettle’ with considerable violence and would strike anyone engaged at the side of the ‘Nettle.’ They all had a duty to carry out the operation with care and skill, and with proper regard to the safety of persons engaged on board the ‘Nettle,’ including pursuer. Notwithstanding this duty and obligation the harbour-master or his assistant recklessly directed the winchman of the ‘Edinburgh’ to put on steam, and the winchman recklessly put on steam without taking any proper and sufficient precaution to secure that the rope would not, as it became taut, strike any person working on board the ‘Nettle,’ the result being that the pursuer, who was, when steam was applied, in the act of drawing water from the harbour by means of a rope and bucket, was caught by the wire rope underneath the arms and flung into the harbour. The pursuer was, just before the accident, standing at the rail of the ‘Nettle,’ leaning slightly over it, and nearer the wharf than the stem of the ‘Edinburgh.’ The harbour-master, his assistant, and Markam had all a clear view of the deck of the ‘Nettle,’ and all failed in their duty to execute the operation with due regard to the safety of the pursuer and others engaged on board the ‘Nettle.’ The defenders the Harbour Commissioners are liable for the negligence of the said Captain James Crombie or the said Mr Wyness. The other defenders are liable for the negligence of the said John Robert Markam.…”

In answer the defenders stated—“ Ans. 6 for Aberdeen Harbour Commissioners.—Denied. When said rope had been attached as above stated, the assistant harbourmaster, everything being then clear so far as he standing on the wharf could see, directed those in charge of the ‘Edinburgh’ to heave on her winch. In giving said order he was entitled to assume that it would be carried out by those in charge of the ‘Edinburgh’ with all due care, and he and the defenders—the Aberdeen Harbour Commissioners—are not responsible for any default of co-defenders' servants in carrying out the same. The winch should have been started slowly and carefully so as to get the strain gradually on the rope, and ensure that if the rope fouled anything it might be released without springing or breaking. When the winch was started, the assistant harbour-master watched the tightening of the rope on board the ‘Nettle,’ and saw that it had fouled or caught on something on board the ‘Nettle,’ and was causing her to careen over to starboard. He immediately gave orders to stop heaving, but the rope, either being foul or for other cause unknown to the defenders, sprang suddenly clear of the obstruction, or at least became suddenly taut and knocked the pursuer overboard. The pursuer was not in sight of the assistant harbour-master when the rope caught him, and it is not admitted that he was drawing water as alleged. Quoad ultra the pursuer's allegations as to the negligence of the Commissioners are denied, and averred that if the pursuer's injuries were caused by negligence, the negligence was either (1) the negligence of those in charge of the ‘Edinburgh,’ or of her crew in not seeing that the rope was clear before putting a sudden strain on it or in putting too much steam upon the winch at starting, or in working it too rapidly and so causing the rope to spring up; or (2) was the negligence of the pursuer himself in respect that he, being on the deck of the ‘Nettle’ and aware of the attachment of the rope and the purpose of it, ought to have kept clear of the rope until the hauling operation was completed, and in failing to do so caused, or at least materially contributed to, the accident. Ans. 6 for Caledonian Steam Trawling Company.—Denied that John Robert Markam had a clear view of the deck of the ‘Nettle;’ that in the circumstances condescended on he had a duty and obligation with regard to the safety of the pursuer; and that he recklessly put on steam without taking proper and sufficient precaution. Quoad ultra admitted. Averred that the said John Robert Markam all along, and in particular in applying steam to the winch of the ‘Edinburgh,’ was acting under the orders of the harbour master and his assistant. These orders had reference to the placing and mooring of the vessel, and also to moving and removing the same, and the said John Robert Markam was bound to obey these orders, under the Aberdeen Harbour Acts and relative byelaws. Averred further, that from his position at the winch he could not see those on the deck of the ‘Nettle;’ that he did not know, and could not have known, of any risk of injury to the pursuer, and that in putting on steam in accordance with the orders of the harbour master or his assistant he relied, as he was entitled to do, on the harbour-master being satisfied that the heaving of the winch and the consequent tightening of the rope were safe and proper steps to take. Averred further, that the pursuer knew, or ought to have known, that the rope was being placed along the deck of the ‘Nettle,’ and fixed to the stem of said vessel for the purpose of hauling out the ‘Nettle,’ and that in so doing it would be necessary to heave the rope tight. By his taking up his position at the side of the vessel, over the rope, pursuer acted in face of a known or seen danger, and

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materially contributed towards the accident which he himself sustained. The winch of the ‘Edinburgh’ was carefully and gradually set in motion, and those on board the ‘Edinburgh’ exercised all due care in carrying out the operations on which they were engaged.”

The defenders, the Aberdeen Harbour Commissioners, inter alia, pleaded—“(1) The injuries averred not having been caused by the fault or negligence of the defenders, the Aberdeen Harbour Commissioners, or of those for whom they are responsible, the said defenders should be assoilzied with expenses.”

The defenders, the Caledonian Steam Trawling Company, Limited, inter alia, pleaded—'(4) The servants of these defenders having acted under the instructions of the harbour-master or his assistant, whose orders they were bound to obey, and the injury to the pursuer having arisen in consequence of an order given by the harbourmaster or his assistant, these defenders are not in fault, and are entitled to be assoilzied with expenses.” In addition both defenders pleaded contributory negligence.

On 13th April 1908 the Sheriff-Substitute ( Henderson Begg), after a proof, the import of which sufficiently appears from the opinion, infra, of the Lord Justice-Clerk, found in fact that the accident was due to the fault of the servants of both defenders and that there was no contributory fault on the part of the pursuer; found in law that the defenders were jointly and severally liable in damages to the pursuer, which he assessed at £100, and granted decree accordingly.

Note.—… I am not disposed to hold that the operation described in the 5th article of the pursuer's condescendence, for the purpose of simultaneously pulling out one vessel and putting another into her place, when the wharf accommodation is so limited that only the stems of the vessels can touch the wharf, is so unusual or so risky as to imply fault on the part of the defenders, who resorted to it on the occasion in question. But I do think that both defenders were bound to adopt every reasonable precaution to avoid damage to the ‘Nettle,’ which had no crew on board, and injury to such persons as were lawfully on board. Now, Captain Wyness admits that when on board the ‘Nettle’ he saw several men washing the fish-pond boards; and on the evidence I think that there was nothing to prevent his seeing them from the wharf when he returned there. Similarly Frederick Whyte admits that when he was on board the ‘Nettle’ with Captain Wyness he saw some men drawing water. Whether Markam, the man at the winch of the ‘Edinburgh,’ was able to see these men on the ‘Nettle's’ deck, is uncertain; but the witnesses Jermyson and M'Kimmie, who were near him, saw the pursuer in the act of drawing water immediately before the accident. Without any warning to the pursuer, Captain Wyness gave Markam the order to heave away, and Markam turned on steam, with the result that within half-a-minute the pursuer was struck by the rope and thrown into the water.…

In these circumstances 1 do not see how any blame can attach to the pursuer, who was lawfully on board the ‘Nettle,’ and who got no warning of the intended operation. On the other hand, it seems to me that Captain Wyness was to blame for giving the order to heave away without warning the men, including the pursuer, whomhe had seen working on the ‘Nettle's’ deck, where he and Whyte had loosely laid the rope. It also seems to me that Markam was to blame. Either he saw the men, in which case he should have warned them before putting on steam, or he did not see the fore deck of the ‘Nettle’ on account of the height of his own vessel's stem, in which case he ought to have had a man on the forecastle head, to see what he himself could not see, to receive the harbour-master's orders and transmit them to him at the winch. Probably as much blame attaches to the skipper, who ought, I think, to have superintended the operation instead of standing idle on the wharf. Further, I think it proved that the winch was not started as slowly as it ought to have been, so as to put the strain gradually on the rope, and ensure that if the rope fouled anything it might be released without springing or breaking.

“Each defender maintains that the other alone was to blame; but I cannot overlook the fact that the operation in question was a joint operation. Captain Wyness did not merely give an order in the abstract; he assisted in laying the rope on the ‘Nettle's’ deck, and knew when he gave the order to heave away that there were men working close to the rope whom he did not warn. In these circumstances it was a wrong order to give. On the other hand, I cannot hold that Markam was bound to give blind obedience to the order, regardless of circumstances which he knew, or ought to have known, rendering the immediate execution of it dangerous. I have arrived at the conclusion that the accident was due to the fault of the servants of both defenders, after careful consideration of the legal authorities to which I was referred in the course of the able debate to which I had the pleasure of listening. Taylor v. Burner 26th March 1898, 8 Asp. M.C. 364, and 78 Law Times 93; Mackenzie v. Stornoway Pier and Harbour Commission, 1907 S. C. 435; Clyde Shipping Company v. Miller, 1907 S.C. 1145; and the earlier cases mentioned in Abbott on Shipping, 14th ed., p. 326.…”

Both defenders appealed.

Argued for appellants, the Aberdeen Harbour Commissioners—(1) This was a case of accident pure and simple, for which no one was responsible. It could not reasonably have been anticipated. The pursuer must prove fault, and this he had failed to do. The pursuer was guilty of contributory negligence in working without keeping his eyes open. (2) In any event the Harbour Commissioners were not in fault. Esto that the harbour-master must give a proper order for carrying out the operation

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in question— Taylor v. Burger, February 15, 1898, 35 S.L.R. 398; Renney v. Magistrates of Kirkcudbright, March 31, 1892, 19 R. (H.L.) 11, 30 S.L.R. 8—he had done so here. Having done so, he was not responsible for the execution of the order—“ The Cynthia,” 1876, 2 P. D. 52; Mackenzie v. Stornoway Pier and Harbour Commission, 1907 S.C. 435, 44 S.L.R. 350. It was for those in charge of the “Edinburgh” to carry out the order, and if they failed to carry it out safely they, and not the harbour-master, would be liable.

Argued for appellants, the Caledonian Steam—Trawling Company, Limited—(1) The pursuer's injuries were the result of accident pure and simple, for which no one was responsible. The defenders had only to show that they had exercised ordinary care and caution. They were not bound to take all possible means to prevent the accident. Lord Esher's view in the “ Indus,” 1886, 12 PD 46, had been overruled in the “ Schwan, [1892] P 419, at 432 and 434. (2) If liability attached to anyone, it was to the harbour authorities. If a harbourmaster caused a vessel to be moved, he was bound to put a sufficient number of persons on board for the protection of the vessel—Harbours, Docks, and Piers Clauses Act (10 and 11 Vict. cap. 27), sec. 58. That had not been done here. The sole duty of the “Edinburgh” was to carry out the orders that were given— Benney v. Magistrates of Kirkcudbright ( sup. ext.); Taylor v. Burger ( sup. cit.). It was not proved that those in charge of the “Edinburgh” were negligent in carrying out the orders, for admittedly the cause of the accident was a foul. Esto that the winch had been worked at too great a speed, that did not matter, for the accident was due, not to the fault of the winchman but to the rope being carelessly laid or its course not being watched. If the deputy harbour-master saw the pursuer, he gave a wrong order. If he did not, he was equally in fault in not looking to see whether there was danger.

Argued for respondent—(1) The case was not one of inevitable accident. Pursuer had not only a right but a duty to be on board. He was on deck the whole time and could have been seen. No warning was given him, and he was entitled to assume that nothing was going to be done—Harbours, Docks, and Piers Clauses Act 1847, sec. 58 ( sup. cit.) The circumstances raised a prima facie case of fault against the defenders. They could therefore only escape liability by proving conclusively that the accident was inevitable. This they had not done—“ The Indus” ( sup. cit.); Clyde Shipping Company v. Miller, 1907 S.C. 1145, 44 S.L.R. 920. (2) Both

defenders were in fault, as they had both failed to exercise reasonable care in carrying out what was really a joint operation. The deputy harbour-master ought to have warned the people on board the “Nettle.” Those in charge of the “Edinburgh” were also in fault, for though they were bound to obey the orders of the harbour-master, they were not thereby discharged from taking ordinary care. There was a legal obligation on both parties to take proper steps to give warning to the pursuer. It was enough for the pursuer if the Harbour Commissioners were found liable, and it was at any rate certain that one or other of the defenders was responsible.