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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aktieselskabet "Fjord" of Kristiania v. The Steamship "Beechgrove" Co., Ltd [1915] ScotLR 244 (18 December 1915) URL: http://www.bailii.org/scot/cases/ScotCS/1915/52SLR0244.html Cite as: [1915] SLR 244, [1915] ScotLR 244 |
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Page: 244↓
[Sheriff Court at Glasgow.
A steamship inward bound for Glasgow, while on her way up the Firth of Clyde in charge of a licensed pilot, collided with an outward-bound steamship within the area for which the pilot was licensed, and where he was necessarily on board under the local regulations, but before reaching that part of
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the river in which pilotage was by statute compulsory. Held ( diss. Lord Skerrington) that the owners of the inward-bound vessel were not liable if the collision were proved to have been due to the fault of the pilot.
The Clyde Navigation Consolidation Act 1858 (21 and 22 Vict. c. cxlix) enacts—Section 75—“The limits of the river Clyde shall include the whole channel or waterway of the said river forming the harbour and as far down the said river as to a straight line drawn from the eastern end of Newark Castle on the south shore of the said river to the mouth of Cardross Burn on the north shore of the said river.…”
Section 128—“And whereas it is expedient that only one authority should exist for licensing pilots for the safe conduct and navigation of vessels in the river and Firth of Clyde, be it enacted that … the board (herein called the Pilot Board) for licensing pilots for navigating vessels plying in the river and Firth of Clyde within a straight line drawn due east and west from the southernmost point of the island of Little Cumbrae shall consist of sixteen members, viz.…”
Section 134—“The Pilot Board shall have the exclusive right and privilege of licensing pilots for the navigation of vessels in the river and Firth of Clyde within the said limits; and it shall be lawful for the Board from time to time to make such bye-laws and regulations as they shall think fit for fixing and regulating the wages and allowances for pilotage to be received or exacted … by the pilots to be licensed by the Board.…”
Section 136—“it shall not be lawful for any person to navigate without a pilot, nor for any person except the pilots licensed … by the Pilot Board … to act in piloting any vessel exceeding 60 tons burden in any part of the river as defined by this Act.…”
Section 139—“It shall be lawful for the Pilot Board, and they are hereby required, … to make such bye-laws and regulations as they shall deem necessary and expedient for all or any of the following purposes—for the good government, police, and proper navigation of all vessels, whether propelled by steam or otherwise, plying between the western limits of the river as defined by this Act and the island of Little Cumbrae.…”
In pursuance of their powers under the above-quoted sections of the Clyde Navigation Consolidation Act 1858, the Pilot Board passed bye-laws relating, inter alia, to pilots. These bye-laws provide—“18. The pilots licensed by the Board shall consist of two classes, viz., river pilots licensed to pilot vessels between Glasgow and Greenock, and deep sea pilots licensed to pilot vessels between Greenock and the island of Little Cumbrae, including vessels proceeding outwards from Port Glasgow or inwards to Port Glasgow.… 19. No person shall presume to navigate or to act in piloting any ship or vessel whatever, exceeding 60 tons register, on any part of the river Clyde, other than the river pilots duly licensed by the Board, under a penalty … 30. All the river pilots shall be bound to take their respective turns inwards or outwards, unless a letter be transmitted to either of the pilot masters at Glasgow or Greenock, subscribed by the owner or agent of any vessel requesting the services of a particular pilot;… 37. No pilot shall leave any vessel after being appointed to the charge, unless with the sanction of the pilot master, until such vessel be properly moored at her place of destination, under a penalty … and the pilot when on board shall have sole charge of the vessel.”
The bye-law fixing pilotage rates fixes river rates “from Glasgow to Bowling, Dumbarton, Greenock, or Tail of the Bank, or vice versa.” No rate is provided applicable to the distance from Glasgow to the west most limit of the river as defined by the Act, i.e., the line between Newark Castle and the Cardross Burn.
The Merchant Shipping Act 1894 (57 and 58 Vict. c. 60), section 633, enacts—“An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law.”
The steamship “Beechgrove” Company, Limited, Glasgow, pursuers, brought an action against Aktieselskabet “Fjord” of Kristiania, defenders, for £5500 damages in respect of injuries sustained by their vessel the “Blaenavon” through being, as they alleged, run into by the defenders' vessel the “Fjord” near Princes Pier, Greenock, on 2nd February 1914. The collision occurred at a point about four miles to the westward of a line drawn from Newark Castle on the south bank of the river to the mouth of the Cardross Burn on the north bank, which line was the westward limit of the river Clyde in which pilotage was expressly compulsory. The pilot station was at Princes Pier, Greenock, and the s.s. “Fjord” had been boarded by a licensed river pilot at that station. The pilot on coming on board had taken entire charge of the vessel. The collision occurred after the pilot had taken charge, but before the vessel had reached the compulsory pilotage area.
The pursuers pleaded, inter alia—“(4) The defenders' steamer not being at the time of the collision in charge of a compulsory pilot within the meaning of the Merchant Shipping Act, they are not entitled to plead compulsory pilotage. (5) The bye-laws founded on being ultra vires of the Pilot Board, the defenders are not entitled to plead them in defence.”
The defenders pleaded, inter alia—“(2) The navigation of defenders' vessel having been in charge of a pilot whose employment was compulsory within a pilotage district in the sense of the Merchant Shipping Act 1894, the defenders are free from liability in respect of said collision under section 633 of the said Act, and should be assoilzied with expenses.”
On 11th July 1914 the Sheriff-Substitute ( Fyfe) sustained pursuers' fourth plea, repelled
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the defenders' second plea, allowed a proof, and granted leave to appeal. The defenders appealed, and argued—A shipowner was not liable for damage done by his ship, but for damage caused through the fault of his servants. There could be no liability in the present case on the part of the owners if at the time of the collision the relationship of master and servant did not subsist between them and the pilot. The Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), section 633, was a statutory enactment of the common law rule that a shipowner should not be liable for the fault of a pilot whom he was compelled to take on board and place in charge of the ship—The “ Halley,” 1868, L.R., 2 P.C. 193. The defenders' ship was under compulsory pilotage, and the fact that the compulsory area had not been reached when the collision occurred did not affect the question of liability—Clyde Navigation Consolidation Act 1858 (21 and 22 Vict. cap. cxlix), sections 75, 128, 134, 139; The “Guy Mannering,” 1882, L.R., 7 P.D. 132. The pilot was not the defenders' servant, as they were compelled to take him on board without the power to choose from among the qualified pilots, to pay him from the start, to put him in control from the start, and to navigate a compulsory pilotage area. The pilot could not be treated as a passenger or as a member of the crew between his coming on board and the ship's entering the compulsory area— The General Steam Navigation Company v. The British and Colonial Steam Navigation Company, Limited, 1868, L.R., 3 Ex. 330, affd. L.R., 4 Ex. 238; The “Charlton,” 1895, 8 Asp. M.C. 29; The “Sussex,” [1904] P 236; Greenock Towing Company v. Hardie, November 28, 1901, 4 F. 215, 39 S.L.R. 151. The bye-laws were intra vires of the Pilot Board—Clyde Navigation Consolidation Act 1858 ( cit. sup.), section 139.
The respondents argued—When a shipowner claimed the benefit of the statutory exemption from liability he must show that he was clearly within its limits. The present case differed from those cited by the defenders, as in them compulsory pilotage had already existed and had ceased, whereas in the present case it had not yet begun. There was no compulsion to put the pilot in charge till the ship actually reached the compulsory area. The General Steam Navigation Company, Limited v. British and Colonial Steam Navigation Company, Limited ( cit.) and The “Charlton” ( cit.), founded on by the defenders, followed Lucey v. Ingram, 1840, 6 M. and W. 302, and proceeded on an erroneous view of the law. Lucey v. Ingram proceeded on a special Act, the Pilotage Act 1825 (6 Geo. IV, cap. 125), which was not analogous to the Merchant Shipping Act 1894, section 633. The correct statement of the law of England was in The “Stettin,” 1863, Br. and Lush. 199. “District” in section 633 of the Merchant Shipping Act 1894 meant the actual area where pilotage was compulsory by law, not a district in part of which it was compulsory. To uphold the defenders' contention would be to extend arbitrarily and indefinitely the owners' exemption. The onus lay on the defenders to show they were within the exemption— Clyde Navigation Trustees v. Barclay, Curie, & Company, May 23, 1876, 3 R. (H.L.) 44, 13 S.L.R. 753; Clyde Shipping Company Limited v. Miller, 1907 S.C. 1145, 44 S.L.R. 920; Owners of the “Strathspey” v. Owners of the “Islay,” July 3, 1891, 18 R. 1048, per Lord Kinnear at p. 1058, 28 S.L.R. 787, at p. 793. The voluntary employment of a pilot made him a member of the crew and the servant of the owners, and there was such voluntary employment here—Marsden on Collisions, 6th ed. p. 216, quoting Dr Lushington in The “Maria,” 1839, 1 W. Rob. 95, at p. 99. The bye-laws were ultra vires of the Board, as they went beyond the powers given in section 136 of the Clyde Navigation Consolidation Act 1858 (cit. sup.)— Dick and Another v. Badart Frères, 1883, 10 Q.B.D. 387.
At advising—
The collision occurred at the Tail of the Bank, off Greenock, about four miles to the westward of Newark Castle. At the time of the collision the “Fjord” was in charge of a licensed pilot, and the owners plead that if they can demonstrate (as they undertake to do) that the collision was brought about solely by the fault of the licensed pilot, they are exempt from liability for the consequences. I am of opinion that that plea is well founded.
It is true that by the 136th section of the Statute of 1858 pilotage is expressly made compulsory only within the limits of the river Clyde as defined by that section. It is likewise true that the limits of the river Clyde as defined by the statute do not stretch further westward than an imaginary line drawn from Newark Castle on the south side of the river to the Cardross Burn on the north side, and consequently that the collision took place outside the limits within which pilotage is made compulsory by express enactment. Nevertheless I consider that if the owners of the “Fjord” are able to establish that the fault was exclusively that of the pilot they are entitled to be liberated from liability for the reasons which I am about to state.
By the 128th section of the statute, on the narrative that it is expedient that there be but one licensing authority for the river and Firth of Clyde to ensure safe navigation, a Pilot Board is set up and is authorised to license pilots for navigating vessels plying on the river and Firth of Clyde within the statutory limits, which extend to the Little Cumbrae. By the 134th section of the statute exclusive right is conferred upon the Pilot Board of the privilege of licensing pilots for the navigation of vessels on the river and Firth of Clyde within the
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Now by virtue of the statutory powers so conferred the Clyde Pilot Board passed certain bye-laws many years ago which have an important bearing on the question we are now considering, for by the 18th of the bye-laws the pilots licensed by the Board are to consist of two classes—river pilots, those licensed to pilot vessels between Glasgow and Greenock; and deep-sea pilots, those licensed to pilot vessels between Greenock and the Little Cumbrae. By the 19th bye-law “No person shall presume to navigate or to act in piloting any ship or vessel whatever exceeding sixty tons register on any part of the river Clyde other than the river pilots duly licensed by the Board, under a penalty.…” And by the 37th bye-law no pilot shall leave any vessel after being appointed to the charge, unless with the sanction of the pilot-master, until such vessel be properly moored at her place of destination, under penalty, and the pilot while on board shall have sole charge of the vessel; and then by the bye-law fixing pilotage rates owners are compelled to pay for their pilot from Glasgow to Greenock, and are not entitled to escape by paying from Glasgow down to the imaginary line between Newark Castle and the Cardross Burn.
Now the effect of these enactments and bye-laws appears to me to be this—Ships inward bound to the port of Glasgow must stop at Greenock and there take on board a licensed pilot. The licensed pilot when taken on board must be placed in charge of the vessel from Greenock to her destination. He is not permitted to leave the vessel until she is safely moored at her destination, and the owners must pay rates for that pilot from Greenock to Glasgow. They are not entitled to and cannot stop at Newark Castle to take the pilot on board there and to put him in charge of the ship at the imaginary line.
The bye-laws, it appears to me, are well within the statutory powers conferred upon the Pilotage Board, and if their effect is as I have stated, then the legal consequence appears to me to be that the relationship of master and servant is never constituted between the owner and the pilot from the moment the pilot is taken on board at Greenock until the ship is safely moored at her destination. The owners of the vessel have no choice in the matter. They cannot even, except within very narrow limits, pick and choose among the licensed pilots. They must take the man who in his turn is sent out to navigate their vessel, and when he is taken on board they must place him in charge of the ship and pay the rate for the full stretch from Greenock up to the port of Glasgow.
Now that was exactly what happened on the present occasion. The “Fjord” took on board her pilot at Princes Pier. He it is alleged was in charge of the vessel at the time when the collision occurred, and if it can be established that he alone was to blame, then it appears to me that the owners are released from liability.
The defenders' exemption from liability depends, in my opinion, not merely upon the statutory enactment—now the 633rd section of the Merchant Shipping Act of 1894—but also upon the common law. That doctrine was, it appears to me, laid down as far back as the case of the “ Maria” ( I W. Rob. 95, 99; Marsden, Collisions at Sea, p. 216) by Dr Lushington when he said that “The leading principle of the Legislature in exonerating owners from any liability for damage occasioned by their vessels having pilots on board is this—that the masters are compellable to take pilots on board, and the owners are not responsible for the acts of the persons to whom they are thus forced to commit the management of their property, and over whom they have no control. This, I apprehend, is a rule founded upon the great principle of justice and equity.”
The same doctrine was authoritatively laid down by Lord Justice Selwyn when delivering the judgment of the Privy Council in the case of the “ Halley,” (1868) L.R., 2 P. C. App. 193, at p. 201, when he says—“Their Lordships agree with the learned Judge in his statement of the common law of England with respect to liability of the owner of a vessel for injuries occasioned by the unskilful navigation of his vessel while under the control of a pilot whom the owner was compelled to take on board and in whose selection he had no voice; and that this law holds that the responsibility of the owner for the acts of his servant is founded upon the presumption that the owner chooses his servant and gives him orders which he is bound to obey, and that the acts of the servant, so far as the interests of third parties are concerned, must always be considered as the acts of the owner. This exemption of the owner from liability when the ship is under the control of what has been termed a ‘compulsory pilot’ has also been declared by express statutory enactments”— vide Merchant Shipping Act 1854 (17 and 18 Vict. cap. 104), sec. 388.
And the doctrine is laid down in similar terms, in the year 1882, by Lord Justice Brett, in the “ Guy Mannering,” (1882) 7 P. D. 132, where he says—“The owner of the ship is not liable for the consequences of the wrongful or negligent acts committed by the pilot whom he is compelled to employ. But if the ship goes wrong in consequence of a failure of duty by the lookout man, it is not the fault of the pilot, and the owner is responsible. If the pilot's orders as to steering the ship are not obeyed, and if mischief in consequence ensues, the owner cannot escape from liability. It may be that when the owner of the ship is compelled to take a pilot on board, and is compelled to pay him fees for the whole of a certain distance, he is protected from all the consequences of the pilot's negligence wherever they may happen, although during part of the distance pilotage is not compulsory—in fact, obligatory payment of a
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In a case decided in the following year—that is, the year 1883—the “ Hector,” (1883) 8 PD 218—the same learned Judge says—“In my judgment the enactment is not really wanted, but it was put into 17 and 18 Vict. cap. 104, in order that there should be no doubt. Before this Act of Parliament, when a pilot was on board a vessel by compulsion, the common law, and all laws one would think, held that the owners of the vessels should only be liable for the negligence of their own servants.” There the doctrine is laid down, I think, with great clearness and precision.
Now the law so laid down was followed in two cases to which our attention was drawn—the General Steam Navigation Company, Limited v. British and Colonial Steam Navigation, Limited case, (1868) L.R., 3 Exch. 330, and the case of the “ Charlton,” (1895) 8 Asp. M.C. 29. In both of these cases the vessel at the time of collision was in charge of a pilot within waters which, in one case certainly, in the other case probably, were non-compulsory pilotage waters—that is to say, waters within which pilotage was not compulsory by express enactment. In the General Steam Navigation case the question was keenly debated whether the vessel was within waters where pilotage was compulsory by express enactment or not. But both in the Court of Exchequer and in the Court of Exchequer Chamber judgment was given on the footing that the vessel was within waters where it would not have been in her case compulsory by express enactment to have a pilot on board and in charge; and the ground of judgment in the Court of Exchequer was very well expressed by Baron Martin, where he says (at p. 340)—“By the ordinary rule of law the owner of a ship is responsible for the negligence of the master and crew; they are in contemplation of law his servants; he selects them and pays them, and is responsible for their misconduct in the course of the employment. But a pilot taken compulsorily is not a servant of the shipowner. He does not select him. By section 378 of the Act he is bound to take the first that offers, and in the words of the statute ‘shall give the charge of the piloting his ship to such pilot.’ He pays him a fixed charge made by the authority of the statute, and is forbidden to pay him either more or less.… Under such circumstances the shipowner would not be responsible for the fault of the pilot at common law.” And later in the opinion he says (p. 344)—“In my opinion the argument on behalf of the plaintiffs is grounded on the fallacy that when the ship was once brought within the limits of the port of London the relation between the defendants and the pilot was altered and converted into that of master and servant. In my opinion such relation never did exist between them, and if it did not the defendants are not liable, for no other relation except that of master and servant would create the liability. For these reasons I am of opinion that the defendants are entitled to our judgment.”
Now that ground of judgment rested upon the hypothesis that the vessel at the time of the collision was within waters where pilotage was not compulsory by express enactment. I ought to say in passing probably that I do not agree with the learned Judge in thinking the case was covered by the authority of Lucey v. Ingram, (1840) 6 M. & W. 302. On examination of the report in that case I find that the decision turned exclusively upon the construction of an Act of Parliament which it was held conferred the exemption, even although the master was at liberty to take a pilot on board or not as he thought fit.
The judgment of the Court of Exchequer was affirmed by a very strong bench in the Court of Exchequer Chamber, (1869) 4 Ex. 238, where the opinion of the Court was delivered by Mr Justice Byles, and on the assumption that the vessel at the time of the collision was within waters which in her case were not by statute compulsory pilotage waters the learned Judge thus states the ground upon which the Court liberated the offending owners from liability—“If the master of the defendants' ship wanted to go to Gravesend or beyond he could not take a pilot for a shorter distance. It was compulsory on him to take a pilot for that distance at least. The pilot could insist on being paid all the way to Gravesend, and could insist on being carried to Gravesend. There had been in effect a contract between the captain and the pilot that the pilot should go to Gravesend, should be paid to Gravesend, and should act as pilot to Gravesend.” For “Gravesend” supply “Greenock” and you have the very case before us. “Suppose a storm or fog or other emergency to have arisen endangering the life not only of the crew but of the pilot himself, surely the pilot could have insisted not only on being carried to Gravesend but on piloting the vessel thither according to his contract. It is plain that during the first portion of the transit between the Downs and Gravesend the relation of master and servant did not exist between the owner of the defendants' vessel and the pilot, and we cannot see any indication of a fresh contract as to the latter portion of that transit.” In short, the relationship of master and servant which did not exist between Glasgow and the imaginary line between Newark Castle and the Cardross Burn did not exist between the imaginary line and the Tail of the Bank.
The case of the “ Charlton” was decided on similar grounds. There the ship was in charge of a compulsory pilot for the first part of her voyage. When I say “compulsory pilot” I mean a pilot taken on board in compliance with express statutory enactment. But at the time the collision actually occurred she had passed out of these compulsory pilotage waters and was in waters where by no statute were the owners compelled to take a pilot on board. Nevertheless the pilotage authority had prescribed that
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Now these two cases seem to me to be virtually on all-fours with the case which is now before us. These judgments are not binding on us, but they are of very high authority. They have been commented on with approval in subsequent cases, and appear to me to rest upon sound principle. I hold, then, that in this case the owners of the “Fjord” were compelled to take a pilot on board off Greenock; were compelled to place that pilot in charge of their vessel from Greenock up to the harbour of Glasgow; were compelled to pay for the pilot's services from Greenock to the harbour of Glasgow; and, accordingly, that the relationship of master and servant did not exist on any part of the voyage from Greenock to Glasgow between the owners and the pilot. Consequently, if they can show that the collision was due exclusively to the fault of the pilot they are released from responsibility for the consequences.
In these circumstances I do not think that the pleas-in-law on either side ought to be touched at this stage, and, accordingly, that the judgment of the learned Sheriff-Substitute should be recalled.
This principle is recognised in section 633 of the Merchant Shipping Act of 1894, which provides—“… quotes, v. sup.…”
The rival contentions upon the application of this principle are (1) that it applies only to pilotage within a compulsory area, which is what the pursuers say, and (2) that it applies wherever a pilot is compulsorily in charge of the vessel, which is the argument for the defenders. I think the latter is the reasonable view. It is consistent with the English decisions cited to us. In the case of “ The Maria,” 1839, 1 Wm. Rob. 95, Dr Lushington laid down the principle in these terms—“If the taking a pilot on board was compulsory, and the collision was occasioned by the fault of that pilot, I shall hold the owners of the ‘Maria’ exempt from responsibility, upon general principle, without reference to Acts of Parliament, for in that case the pilot was not their servant, and the maxim qui facit per alium facit per se does not apply. If on the contrary the taking a pilot was voluntary, then he was the servant of the owners, and the owners are responsible.” This principle was recognised in the later cases to which we were referred. The collision here happened between Greenock and the imaginary line, drawn at Newark Castle, which under section 75 of the Clyde Navigation Act 1858 constitutes the western boundary of the river Clyde. The pursuers say that under section 136 of that Act the compulsory area is confined to the river, and that the vessel was outside that area when the collision happened. It is, however, quite clear that in the case (as here) of a vessel bound up the river the licensed pilot must join the ship at Greenock. As the Sheriff-Substitute says—“The nearest landing-place where a pilot can join or leave a ship is Greenock.” This is about four miles lower down than the imaginary line referred to. The position therefore is this. Under
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I am of opinion that the same considerations apply to the present case.
Therefore if the collision was due to the fault of the pilot the owners are not responsible.
The Clyde Navigation Consolidation Act 1858 (21 and 22 Vict. cap. xlix) creates, secs. 128 and 134, one pilotage authority within the limits of the river and Firth of Clyde, which includes the whole district between Glasgow and the Little Cumbrae. It also confers power on the Pilot Board to make bye-laws with reference to pilots and also navigation (sections 134 and 139). Section 136 prohibits navigation without a licensed pilot in any part of the river Clyde which is defined (section 75) as including the channel of the river from Glasgow downwards to an imaginary line running northwards from Newark Castle. The parliamentary burgh of Port-Glasgow is situated within less than a mile of and to the west of this line. The Pilot Board have by their bye-laws created two classes of pilots, viz., river pilots and deep sea pilots, but for some reason they have not taken Port-Glasgow as the station at which river pilots are to be picked up by vessels going inwards and to be put on shore by vessels going outwards,
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I do not propose to examine minutely the Act of 1858 and the relative bye-laws, because two things seem to me to be abundantly clear. In the first place, the bye-laws do not purport to extend the compulsory pilotage area to the west of the imaginary line fixed by the statute. In the second place, it would have been ultra vires of the bye-laws to attempt to do this. Byelaw 19 is conclusive to my mind as to the meaning and intention of the bye-laws. Bye-law 37 was very much founded on by the defenders' counsel. It is a general bye-law referring both to deep sea pilots and to river pilots. I cannot construe it as making it illegal for the master of a ship bound inwards to Port-Glasgow to pick up a deep sea pilot a mile west of the Cloch Light under an agreement with the pilot that the latter shall take charge only when the ship reached the Cloch Light and should be paid accordingly. Equally I see nothing in bye-law 37 to prevent a shipmaster who is compelled to pick up a river pilot at Greenock from informing the pilot that he is not to take charge until the ship reaches Newark Castle. Of course no sensible shipmaster would in the ordinary case deprive his owners of the services of an expert for which they had to pay whether they employed him or not. Further, in certain states of the weather it might be imprudent to change the responsible navigator at any part between Greenock and Glasgow. Accordingly shipmasters inward bound have very strong reasons for putting the river pilot in charge from the moment he comes on board at Greenock. Equally shipmasters outward bound have good reasons for leaving the river pilot in charge from Newark Castle to Greenock. But the fact that there is a strong and even an overpowering motive for employing a licensed pilot in a non-compulsory area does not make the employment compulsory. I am accordingly of opinion that the defenders have failed to demonstrate what is essential to their success, viz., that they were compelled by law to have their ship navigated by a licensed pilot from the moment at which the pilot came aboard at Greenock. If such was the true effect and intent of the bye-laws they constitute an ultra vires invasion of a common law right which the Act of 1858 and the public statutes relating to pilotage reserved to the master of every ship not carrying passengers, viz., to navigate his own vessel in every area where pilotage is not compulsory.
It follows, in my opinion, that the defenders are according to the principles of the common law of master and servant responsible for the fault of a person whom they voluntarily permitted to navigate their ship. It seems to me, however, that the liability of a shipowner for the fault of a compulsory pilot must now depend solely upon the terms of section 633 of the Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60). That section, like its predecessor in the Act of 1854, was based on the common law, but, in my opinion, superseded the latter quoad this chapter of the law. Accordingly, if the section when rightly construed imposes a wider or a narrower liability than would have been imposed by the common law, the words of the section must prevail and regulate the rights of the parties.
It would not have occurred to me that section 633 could be construed as exempting a shipowner from liability for the fault of a licensed pilot committed within a pilotage district but outside of any area where pilotage was by law compulsory. There are judicial opinions in favour of that view, but the suggested construction seems to me to be unnatural and unreasonable. The section in question must, however, now be construed along with an entirely new fasciculus of clauses which did not occur in the Merchant Shipping Acts of 1854 and 1894, but which appear for the first time in the Pilotage Act of 1913. This statute came into force (section 59) on 1st April 1913 before the date of the collision, and it repealed sections 572 to 632 inclusive of the Act of 1894. This repeal is not to affect any enactment or bye-law “with reference to pilotage affecting any pilotage district in particular,” but I do not refer to the Act of 1913 for any such purpose. The Act of 1913 is to be construed as one with the Act of 1894 (section 62), and it may in my view be referred to as throwing light on the true construction of section 633. Section 10 (2) and section 14 of the Act of 1913 support the view that a shipowner's exemption from liability is confined to the area of compulsory pilotage and does not extend to the whole of a pilotage district which includes a compulsory area. I am therefore for affirming the judgment appealed against.
With reference to the judgment which
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The Court recalled the interlocutor of the Sheriff-Substitute and remitted the cause to him to allow a proof.
Counsel for the Pursuers and Respondents— Horne, K.C.— Paton. Agent— Campbell Faill, S.S.C.
Counsel for the Defenders and Appellants— Sandeman, K.C.—Normand. Agents— J. & J. Ross, W.S.
