Scottish Court of Session Decisions

Aktieselskabet Dampskibet Forto, Christiania, Norway, registered owners of the steamship “Forto” of Christiania, pursuers, and Boyd, Jameson, & Young, W.S., Leith, their mandatories, brought an action against the Orkney Harbour Commissioners, incorporated by the Orkney Harbours Act 1887 (50 and 51 Vict. cap. clxii), defenders, for payment of £1200 for loss and damages sustained by the stranding of the “Forto” in Whitehall Harbour, Stronsay, which had come about owing to a buoy being out of its usual place.

The pursuers pleaded, inter alia—“(3) The defenders having negligently failed to fix said buoy efficiently, or otherwise having allowed it to become displaced, and the pursuers having thereby suffered loss and damage, decree should be pronounced in terms of the conclusions of the summons. (4) Separatim—The defenders having failed to warn the master and pilot of the “Forto,” or either of them, that said buoy was out of its true position, and the pursuers having thereby suffered loss and damage, decree should be pronounced in terms of the conclusions of the summons.”

The facts of the case appear from the opinion of the Lord Ordinary ( Dewar), who on 25th November 1913, after a proof, decerned against the defenders for payment to the pursuers of £562, 15s. in full of the conclusions of the summons.”

Opinion.—“This is an action of damages at the instance of the owners of the s.s. ‘Forto,” of Christiania, against the Orkney Harbour Commissioners for loss and damage alleged to have been sustained by the stranding of the ‘Forto’ in Whitehall Harbour, Stronsay, which is vested in the defenders by the Orkney Harbour Act (1887) and is under their management and control.

The material facts are as follows, viz.—On the 2nd of July 1912, the ‘Forto’ reached Papa Sound (sometimes called Whitehall Bay) with a cargo of salt from Spain. About 12 o'clock noon she took a pilot on board—Stewart Williamson—and under his charge made for the harbour. The ‘Forto’ is a steel screw steamer of 1231 gross and 775 net register, 222 feet long, with slightly more than 24 feet beam. Her draught is about 10 feet when light and 16 1 2 when loaded.

The channel within the harbour is narrow and shallow—not more than 100 feet wide at parts—and about 18 feet deep at flood tide, and as it is the custom of drifters to lie at anchor in and near the fairway the navigation of large vessels is sometimes very difficult. It was so on 2nd July, because there were between 70 and 80 drifters, some already anchored and others dropping their anchors, along the route which the ‘Forto’ was following. When she reached a point where the channel is about 150 feet wide, she found the fairway so blocked with drifters that she was unable to keep her place, and went aground. She tried to get off by working her engines astern but failed. Arrangements were accordingly made to lighten her by removing part of her cargo. By midday on 3rd July a sufficient quantity of the cargo had been taken off to enable her to float. She was then taken to anchorage at a point within the harbour called ‘Jack's Hole’ where there is about five fathoms of water. More cargo was then taken off so as to enable her to reach the pier in safety with the night tide. The pilot consulted the harbour master, who agreed that it would be prudent to take her in at night as the drifters are then away fishing and the fairway is clear. Accordingly she left her anchorage at ‘Jack's Hole’ between twelve and one in the morning of the 4th July and made for the pier.

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Now there lies between ‘Jack's Hole’ and the pier a shoal or reef called Crampie which is undoubtedly a danger to navigation. Some years ago a representation was made to the defenders as the harbour authorities that the position of this shoal should be marked so as to warn vessels of the danger. The defenders agreed, and in the year 1906 put down three buoys—two red ones on the north side of the shoal and a black one at the south side. These buoys, although small, when they remained in position, were sufficient for the purpose, but they were attached to unusually small sinkers, and were easily displaced and frequently got out of position Unfortunately the black buoy was out of position on the morning of the 4th of July. It was about 80 feet too far to the northwards, and the result of this was that when the ‘Forto’ was rounding it on her way to the pier she stranded on Crampie shoal. There can be no doubt, on the evidence, that she was decoyed on to the shoal by the black buoy which is within sight of the pier—about 400 yards off. The harbour-master says it was in position on the morning of the 3rd July, but he admits that it was 80 feet out of position when the ‘Forto’ was rounding it and he replaced it immediately after the accident.

The pursuers do not blame the defenders for the stranding on the 2nd of July, and they say that their vessel sustained no damage on that occasion. But they allege that she did receive damage on Crampie shoal, and they maintain that the defenders are liable therefor, on the ground that they failed in their duty of keeping the harbour reasonably safe for those whom they invited to use it. Crampie shoal, they plead, should either have been removed from the channel or adequately buoyed.

The defenders dispute liability. They maintain that they were under no obligation to remove the shoal, and that it was adequately buoyed. They admit that the buoy was frequently displaced, but they allege that this was well known to the pilot, who ought to have disregarded it and to have brought the vessel in by the landmarks which were well known to him; or if the landmarks were not visible at the time (which they deny), then the pilot ought to have verified the position of the buoy, or to have waited till daylight. They plead that the accident was thus due to the negligence of the pilot, whose negligence must be imputed to the pursuers. Further, and in any event, they deny that the ‘Forto’ sustained any damage by stranding on Crampie shoal.

There was no dispute between the parties as to the law applicable to a case of this kind. It is well settled that harbour commissioners constituted as the defenders are by statute, and which have a right to levy tolls in consideration of making or maintaining a harbour, are liable to make good to persons using it any damage caused by neglect in keeping it in a safe condition. The law imposes a duty on the commissioners to take reasonable care that those who use the harbour may do so without danger to their lives or property— Mersey Dock and Harbour Commissioners, 1865, L.R. (1 H.L.) p. 93; Thomson v. Greenock Harbour Trustees, 3 R. 1194; Parker v. North British Railway Company, 25 R. p. 1071. The various questions in dispute therefore are entirely matters of fact to be decided on the evidence.

The first of these questions is, whether the defenders negligently failed in the duty of maintaining the harbour in a reasonably safe condition? I am of opinion that they did. The pursuers allege on record that Crampie shoal was formed in part by an accumulation of ballast stones thrown overboard by vessels in the harbour, and they argued that the defenders were in fault in permitting these stones to remain. It is true that on one, or perhaps two occasions, vessels did discharge some ballast in the harbour, but there is no evidence to show that any part of this ever reached Crampie, and I do not believe it did. Crampie is a natural shoal, composed of sand, gravel, and large stones or boulders. It is said that it ought to have been removed, whether of natural formation or not. If that were reasonably possible, it would, no doubt, be the best means of preventing danger to navigation. But the pursuers did not offer any evidence on that matter. No one stated what the approximate cost would be, or whether its removal would be reasonably possible at all. The defenders appeared to have considered it at one time and took skilled advice upon it. The minutes, dated 1st November 1911, show that Mr Hannay Thomson, C.E.,Dundee, had been consulted, and he reported that the shoal consisted of large stones and rock, and that he would not recommend that it should be removed. None of the witnesses suggest that this was not sound advice. I do not think that it would be reasonable to expect the defenders to spend very large sums on this comparatively small harbour. Whitehall is now a fishing centre of some importance and appears to be growing, but the Harbour Commissioners have not command of unlimited funds. In 1904 their net revenue was £125; it has grown gradually year by year until in 1913 it reached the sum of £3328. This is a satisfactory increase, but it does not warrant unlimited expenditure, and I cannot say that the defenders were lacking in ordinary prudence in failing to embark on unknown expenditure in removing the shoal of Crampie, especially as the evidence shows the revenue from fishing vessels is very uncertain and fluctuating. A harbour may be busy and prosperous for a few years, and then the industry may suddenly cease and the harbour revenue disappear, because, I suppose, fishermen must follow the fish.

But although the defenders were not under obligation to remove the shoal, they were undoubtedly under obligation to render it reasonably safe to those whom they invited to use the harbour. In this I think they failed. They knew very well it was a danger. In 1906 the fish-curers, fish-salesmen, and fishermen represented that fishing vessels were being damaged and delayed through lack of buoys in the channel. The

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defenders undertook to remedy this. They placed three buoys to mark Crampie shoal, but they did so in a very perfunctory fashion. The buoys were small and insufficiently weighted; the largest of them, the black buoy, appears to have been borrowed from one of the Commissioners. It was attached to a stone weighing about 1 cwt., while the sinker usually attached to a buoy marking a channel is a flat metal disc weighing from 10 to 15 cwt. Of course this buoy was constantly out of place, and every time it left its position it ceased to be a guide and became a decoy. The defenders explain that the reason they used such a buoy was because it was easily recovered when it left its position. One man and a boat could do it they said. Very likely. But that appears to me to be a dangerous principle to adopt in buoying a channel, because a buoy which is easily recovered is one which is easily displaced, and the primary and essential purpose in putting it there at all was to mark the point of danger, and it ought to have been weighted in such a manner as would render it least liable to alter its position. The truth is, this buoy was worse than useless; it was a positive danger; and the defenders knew it was a danger. They were, as I have said, informed by the fishermen; they were recommended to alter it by their engineer Mr Hannay Thomson, and they were warned by their harbour-master, Chalmers. He says—‘I pointed out to Captain Robertson (one of the defenders) that it was a dangerous thing to have it shifting like that; it was quite well known that the buoy had been shifted often, and I pointed that out to him.’ But the defenders paid no attention to this warning. Then he is asked—‘(Q) I suppose the fact of the buoy getting continuously out of place is very apt to mislead people; you would be better without a buoy than one in the wrong place?—(A) It was generally always in place when strangers were coming, and those in the locality knew it well enough.’ That is to say, only those strangers who were fortunate enough to arrive when the buoy happened to be in position received any guidance from it. All others must look out for themselves. That does not appear to me to be a reasonable method of buoying a channel. The defenders say that it was displaced by some of the drifters on the 3rd of July, and they plead that they are not responsible for such interference. But there is no evidence of that. It may be true, but even then I do not think that they can escape liability, because they should have placed a buoy there which could not be shifted—at least not so easily shifted—by the drifters. After the accident they put down a buoy with a suitable weight. That is more than a year ago and the drifters have never interfered with it.

Then it is said that even assuming the defenders' negligence in failing to buoy the channel properly, there was also negligence on the part of the pilot, and that his negligence must be imputed to the pursuers.

So far as I am aware it has never been decided that the negligence of a pilot in such circumstances can be imputed to the owners of a vessel, and in the case of Renney v. The Magistrates of Kirkcudbright, 19 R. (H.L.) 11, where the point was raised, Lord Watson, without deciding it, said he considered it a doubtful and dangerous doctrine. It seems to me that when the master of a vessel engages a duly licensed pilot to assist him in avoiding local dangers with which he is unfamiliar, that he has done all that a prudent man can do to ensure the safety of his vessel, and it would be very hard to hold him, and through him his employers, responsible for the pilot's negligence. But I do not require to decide that question, because I am of opinion on the evidence that no negligence on the part of the pilot has been proved. On the contrary, I think he did all that could be expected of him. He consulted the harbour-master, who advised him to bring the ‘Forto’ in at night when the channel was clear of drifters. He ascertained the depth of the water and found that he had from six inches to a foot more than the ‘Forto's’ draught. Before starting from anchorage at Jack's Hole he sent his motor boat with a light to mark the black buoy which he was unable to see in the grey light. He then came on at dead slow speed. He rounded the buoy in the usual manner, and if it had been in its proper place he would have gone safely to the pier. He did nothing rashly or without due consideration. The defenders allege that he knew the buoy was frequently out of position and that he ought to have ascertained whether it was in position before starting. He says that he did not know, and I see no reason to doubt his word. He appeared to me to be a fair and reliable witness. The buoy was in point of fact shifted repeatedly, and this was known to the harbour-master and his assistants; but then, as I have said, it was within 400 yards of the pier and constantly under their observation, and it was their duty to note its position. Some other witnesses knew how unreliable it was also—but others again did not. For example, Miller, Sinclair, Leslie, Williams, and Finlayson all say that they never heard of it, and they are all familiar with the channel and navigated it constantly. I do not think there was any negligence on the part of the pilot in not verifying the position of the buoy before bringing in the vessel. It is true that buoys are liable to shift when they are in exposed positions, and the prudent mariner will verify their position when that is possible. But when a buoy is in the shelter of the harbour, within sight of the pier, and constantly under the observation of the harbour-master, it is not, I think, unreasonable to assume that it will be kept in its proper position.

The defenders produced and founded on a handbill which they posted at the pier, notifying ‘That any masters of vessels and others making use of the buoys and moorings laid down by the Commissioners … do so at their own risk, and the Commissioners will undertake no liability therefor.’

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There appears to have been some difference of opinion among seafaring men as to whether this applied only to the hauling-off buoys near the pier, or whether it included the buoys which mark the channel. The notice was put up after the moorings of one of the hauling-off buoys had given way when being used, and this probably gave rise to the view that it was intended to apply only to them. But assuming that it was intended to apply, and did apply, to all the buoys, I do not think that it is sufficient to relieve the defenders of responsibility. Those who are responsible for the public safety cannot escape liability for their negligence by posting notices to that effect. The law requires them to exercise reasonable care, and if they fail to do so they are liable whatever intimation they may make to the contrary. A warning notice may be prudent and proper, but it is not enough. They must themselves exercise reasonable diligence. In my opinion the defenders did not do so. It was very imprudent to place this particular buoy there at all, and inexcusably negligent to permit it to remain after they had been warned that it was a public danger.

The next point the defenders argued was that the pilot ought to have brought the vessel in by the landmarks. The simple, but I think sufficient, answer to that is that the landmarks were not visible at the time. A number of witnesses were brought to prove that it was sometimes possible to read a newspaper without artificial light at midnight in that region, and some of them said that they could see various objects at a considerable distance on the night in question. All that may be true, but it is not in the least inconsistent with the evidence, which I consider reliable, of those who were in the best position to know, viz., that the landmarks were not visible from the deck of the ‘Forto.’ The pilot says quite frankly that he preferred to come in by the landmarks because he had been so long accustomed to them, and that he looked for them but could not see them. The harbour-master, who was waiting on the pier, says he could see the black buoy 400 yards away. Perhaps he could, but it was certainly not visible from the ‘Forto,’ because it was necessary to send the motor boat on ahead with a lamp to mark the spot. Alternatively it was argued that if it were too dark to see the landmarks it was the pilot's duty to remain another twelve hours until the full tide during the day. But he had experience of navigating the channel with a large vessel during the daytime. The drifters which the defenders permitted to anchor in the fairway crowded him out of the channel, and he naturally desired to avoid a similar experience.

Moreover, he consulted the harbour-master, who is the supreme authority. Bye-law No. 4 provided—“All shipmasters, agents, and others shall take their directions with respect to mooring, unmooring, and moving vessels from the harbour-master alone.’ The pilot, following this rule, took his directions from the harbour-master, and I can see no negligence in this or in anything else he did. The stranding, in my opinion, was entirely due to the fault of the defenders.”

[ His Lordship then proceeded to deal with the question whether the damage was sustained on Crampie shoal or not.]

The defenders reclaimed, and argued—1. There was no obligation on them to buoy. Thomson v. Greenock Harbour Trustees, December 10, 1875, 3 R. 1194, 13 S.L.R. 155, founded on by the pursuers, was only applicable to an opus manufactum, and not to natural harbours such as the present. Insuch cases it was unreasonable to hold that all shoals must either be removed or buoyed, and there was no authority for such a proposition— Parker v. North British Railway Company, July 1, 1898, 25 R. 1059, 35 S.L.R. 842; Reg. v. Williams, 1884, 9 A.C. 418. Where a buoy was put down its purpose must be construed by the intention of the parties— Buchanan v. Trustees of the Clyde Lighthouses, February 6, 1884, 11 R. 531, 21 S.L.R. 374. The fact that the buoy in question was capable of being used to the detriment of a vessel would not make the defenders liable if it was intended to be used in conjunction with a chart. In any event the notice put up by the defenders absolved them from liability, and the words “making use of” were wide enough to cover the present case— British Motor Syndicate, Limited v. Taylor & Son, [1900] 1 Ch 577, at p. 583, per Stirling, J.; Cannell v. Corporation of Trinity House, London, and Lowther, Latta, & Company, [1914] 3 KB 1135. The defenders had not invited the pursuers to bring their ship in, but had, on the contrary, warned them of the risk they ran— The “ Moorcock,” 1889, 14 P.D. 64; The “Calliope,” 1889, 14 PD 138, [1891] AC 11; The “Bearn,” [1906] P 48. 2. In any event the ship had been negligently navigated by the pilot, and he was the servant of the owners pro hac vice, so as to disentitle them to claim against the defenders for the damage thus resulting—the “ Maria,” 1839, 1 W. Rob. 95. In Renney v. Magistrates of Kirkcudbright, March 31, 1892, 19 R. (H.L.) 11, 30 S.L.R. 8, founded on by the Lord Ordinary for the contrary view, the so-called pilots were not pilots in the proper sense of the term— Norman v. Great Western Railway Company, [1915] 1K.B. 584. 3. Further, the damage sustained resulted from the unauthorised acts of third parties, for which the defenders were not liable— M'Dowall v. Great Western Railway Company, [1903] 2 KB 331; Cory & Son, Limited v. France, Fenwick, & Company, Limited, [1911] 1 KB 114; Beven on Negligence, i, 51, 77; Pollock on Torts, pp. 471, 473, 476.

Argued for the pursuers—1. It was in virtue of their right to receive tolls, and not because the harbour was an opus manutum, that the defenders were liable— The Mersey Dock Trustees v. Penhallow, 1861, 7 H. & M. 329; The Mersey Dock Trustees v. Gibbs, 1866, L.R., 1 (HL) 93. In the present case there was a general invitation to enter the harbour to vessels of a given draught. There might be no obligation to buoy, but the defenders did buoy and they ought to have done so sufficiently— Thomson v. Greenock Harbour Trustees ( cit.

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sup.); Parker v. North British Railway Company ( cit. sup.); Buchanan v. Trustees of the Clyde Lighthouses ( cit. sup.), per the Lord Justice-Clerk at p. 534; Owners of s.s. “Toward” v. Owners of s.s. “Turkestan,” December 16, 1885, 13 R. 342; The “ Gustafsberg,” [1905] P 10; The “Christabel,” Maritime Notes and Queries, 1878, vol. iv, p. 65. The duty of keeping the buoy in its proper place was one incumbent on the defenders and they could not delegate it to anyone else. 2. In any event the fault of the pilot, if it existed, could not be attributed to the pursuers, and his knowledge was not such as to show that he voluntarily ran the risk— Thomson v. North-Eastern Railway Company, 1860, 2 B. & S. 106, per Cockburn, C.J., at p. 113, and Hill, J., at p. 116; Clayands v. Dethick, 1848, 12 Q.B. (A. & E. n.s.) 439, 76 R. R. 305; Thomas v. Quartermaine, 1887, 18 Q.B.D. 685; Radley v. London and North Western Railway Company, 1876, 1 A.C. 754; Renney v. Magistrates of Kirkcudbright ( cit. sup.). 3. The fact that third parties had interfered would not absolve the defenders from liability—Orkney Harbours Act 1887 (50 and 51 Vict. cap. clxii), sec. 4; Harbours, Docks, and Piers Clauses Act 1847 (10 and 11 Vict. cap. 27), secs. 42, 53.

At advising—