Scottish Court of Session Decisions

The Regulations for Preventing Collisions at Sea provide as follows:—“Article 16—Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions. A steam vessel hearing, apparently forward of her beam, the fog-signal of a vessel, the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines and then navigate with caution until danger of collision is over.”

Article 19—“When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.”

Article 21—“Where by any of these rules one of two vessels is to keep out of the way, the other shall keep her course and speed.

Note.—When in consequence of thick weather or other causes such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone she also shall take such action as will best aid to avert collision. (See articles 27 and 29.)”

Article 23.—“Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop and reverse.”

In the present action John Wood Crawford and Duncan M'Intyre, shipowners, Leith, registered owners of the steamship “Warsaw,” sued the Granite City Steamship Company, Limited, registered owners of the steamship “Linn o'Dee,” for £300 as damages sustained by the “Warsaw” in a collision with the “Linn o'Dee.” A cross action at the instance of the owners of the “Linn o'Dee” against the owners of the

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“Warsaw” was before the Court at the same time. The collision took place on the 27th of August 1905 in a dense fog, about 3.30 in the afternoon, at a point some few miles to the south-east of St Abb's Head.

The facts of the case are fully set forth in the opinions of their Lordships infra, and are briefly summarised in the following passage, which is taken from the opinion of the Lord Justice-Clerk:—“The facts, as I consider them to be established by the evidence, are—(1) That when both the ‘Warsaw’ and the ‘Linn o'Dee’ were in a fog which made it impossible for a view to be obtained by one vessel of the other, the horn of the ‘Warsaw’ was heard upon the ‘Linn o'Dee's’ starboard bow, and was responded to; (2) that when the

‘Warsaw's’ signal was heard the ‘Linn o'Dee's’ engines were stopped; (3) that when the vessels came into view of one another there was but a short distance between them, and the ‘Warsaw’ was pointing towards the starboard side of the ‘Linn o'Dee;’ (4) that at this time the way was nearly off the ‘Linn o'Dee;’ (5) that to avoid the collision, or prevent her being struck amidships, the ‘Linn o'Dee’ put her engines full speed ahead and her helm hard a-port: (6) that the ‘Warsaw’ continued to come on at a considerable speed—not less than five knots an hour—and struck the ‘Linn o'Dee’ and cut clean into her in a slanting direction from her starboard quarter towards her port side; (7) that at the moment of contact there was none, or very little way on the ‘Linn o'Dee;’ (8) that the ‘Warsaw’ had been kept at a considerable speed up to the time of the vessels sighting one another, and that when she struck she had still considerable way upon her; (9) that the blow was a direct and horizontal blow, and not a blow by the sea throwing the ‘Warsaw’ down upon the ‘Linn o'Dee.’”

On 9th January 1906 the Lord Ordinary after a proof, at which he was assisted by a nautical assessor, pronounced the following interlocutor:—“Finds that the collision which took place between the steamship ‘Warsaw’ of Leith and the steamship ‘Linn o'Dee’ of Aberdeen, on Sunday the 27th August 1905, was caused by the fault of those in charge of the steamship ‘Warsaw’ in navigating the said vessel at too high a rate of speed in a dense fog, and in not stopping and reversing her engines when it became apparent from the direction of the sound signals coming from the ‘Linn o'Dee’ that that vessel was proceeding in a direction from port to starboard of the ‘ Warsaw’: Finds that those in charge of the ‘Linn o'Dee’ were not to blame to any extent for the said collision: Therefore, in the action at the instance of John Wood Crawford and another, the owners of the ‘Warsaw,’ against the Granite City Steamship Company, Limited, the owners of the ‘Linn o'Dee,’ assoilzies the defenders from the conclusions of the action; and in the action at the instance of the Granite City Steamship Company, Limited, against John Wood Crawford and another, finds the defenders liable to make payment to the pursuers of such sum as shall represent the damage caused to the pursuers by the said collision.”

Opinion.—“The collision which forms the subject of the present action, took place about 63 miles south-east by east of the Bass Rock. The ‘Warsaw’ was proceeding across the North Sea on a voyage from Leith to Hamburg, and the ‘Linn o'Dee’ was on a voyage from Libau to Bo'ness, but not having been able to take observations owing to the weather she had kept a little to the south of her true course in order to enable her sooner to pick up lights or landmarks on the coast. Prior to hearing each other's steam whistles the courses of the respective vessels were slightly angled to each other.

On the day of the collision the ‘Warsaw’ prior to the collision had passed through patches of fog at full speed, 8 or 9 knots, with no lookout on the forecastle head, and without any precautionary measures to prevent collisions with vessels which may have been in the patches of fog, and possibly the success of having done so without an accident might encourage those in charge of the vessel to continue at full speed longer than prudent men would have done in the existing foggy weather. It was particularly necessary for the ‘Warsaw’ to go at a low rate of speed, inasmuch as she had a very awkward deck cargo of thirteen horses and a pony, which, as described by the captain, kept ‘stampeding’ about the deck and behaving like ‘mad things’ when the fog whistle began to sound.

It is stated by the master of the ‘Warsaw’ that the engines were slowed down upon their entering the fog, and were stopped as soon as they heard distinctly a whistle from the vessel which proved to be the ‘Linn o'Dee.’ The captain says that when the fog came down and the engines were slowed, the ‘Warsaw’ was doing about 4 or 5 knots per hour, and that they were going at this pace for about fifteen minutes, till about 3.35 p.m., and that then the engines were stopped, and he and the other witnesses on board the ‘Warsaw’ say that the result of the slowing and stopping was that the ‘Warsaw’ was practically stationary at the time the collision happened. I do not believe this evidence. There was no stopping of the engines apparently according to the engine time book till 3'36, almost immediately before the collision, and in the bridge log book there is nothing said about the engines being stopped at all, but only slowed, and the figure opposite that entry has evidently been tampered with. But further, as I shall have occasion to point out afterwards, the nature and direction of the hole cut in the ‘Linn o'Dee’ by the ‘Warsaw’ renders it quite impossible that at the time of the collision the ‘Warsaw’ could have been anything like stationary. On the contrary it would seem that she must have been going at about 5 or 6 knots an hour, which would be explained if the engines were not stopped till immediately before the ‘Linn o'Dee’

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came in sight. Those on hoard the ‘Linn o'Dee’ state that the ‘Warsaw’ came upon them at a high rate of speed—at least 5 knots an hour—and that the collision became inevitable from the time the vessels sighted each other. In this last point those on both vessels are agreed, for those on board the ‘Warsaw’ also state that a collision had become inevitable when they saw the ‘Linn o'Dee,’ because they state that she was bearing down on them at the rate of 5 or 6 knots an hour, and the captain of the ‘Warsaw' says that at that time the ‘Linn o'Dee’ was coming at a great rate of speed, and the second officer says that the ‘Linn o'Dee’ was going at the rate of 5 or 0 knots an hour, and that the ‘Warsaw’ was stopped at the time the collision happened. All this evidence I entirely disbelieve, as I think it is disproved by the actual facts of the collision.

But on the showing of those on board the ‘Warsaw’ themselves I think that the master of that vessel was in fault in not reversing his engines as well as stopping them, as he says he did, when it became evident that the sound signals that were heard from another vessel closing and narrowing on the ‘Warsaw's’ port bow indicated that the vessel, which proved to be the ‘Linn o'Dee,’ was proceeding in a direction from port to starboard of the ‘Warsaw.’ Upon such indications the engines of the ‘Warsaw’ should have been at once reversed and the way taken off her, and signal ( b) article 15 of the Regulations for the Prevention of Collisions at Sea should have been sounded. Such precautionary measures would have prevented the collision, and the hearing of the said signal would have been sufficient intimation to the ‘Linn o'Dee’ and other vessels navigating in the vicinity that there was a vessel stopped with no way through the water. In these circumstances the master of the ‘Warsaw’ was not entitled, upon the information given him by the sound signals narrowing on his bow, to wait till he saw the other ship before he reversed. In these views the nautical assessor concurs.

“The master of the ‘Warsaw,’ however, did not reverse, and he did not take such way off his vessel as that he could come to a standstill after the other vessel whose whistle he had heard appeared suddenly out of the fog. As the nautical assessor says, there is no legal rule compelling him to do so, but he observes that if a master of a steamship elects to proceed through a thick fog when the near presence of another vessel is known to him, his speed through the water should be so regulated that he can stop in half the distance he can see ahead. In my opinion the master of the ‘Warsaw’ being anxious to run up to his schedule time, and being afraid of taking the way off his vessel altogether, with the risk of getting into the trough of the sea, and having his deck cargo rolling about and possibly breaking their legs, took his chance of going through the fog at a greater speed than he was entitled to, having regard to the safety of other vessels, and in particular of the vessel whose whistle he had heard.

Turning now to the evidence for the ‘Linn o'Dee,’ it appears that early in the morning of the 27th, when the weather began to get hazy, the master of that vessel at once placed a look-out man on the fo'castle head in order that vessels might be at once reported in time to prevent collisions. There was every indication of caution and care in the navigation of that ship immediately prior to the collision when they passed a fleet of fishing boats and some trawlers. When he got into the fog the captain gave the order to reduce speed to half-speed, which would be about three knots at that time, and then shortly after, hearing a bell from a boat on the port bow, the speed was reduced to slow, which would be between one and two knots according to the master. That rate was continued for about ten minutes, and then the first whistle was heard from what afterwards turned out to be the ‘Warsaw,’ and as soon as the first whistle was heard the engines of the ‘Linn o'Dee’ were stopped, and remained so till the ‘Warsaw’ loomed in sight. The ‘Linn o'Dee’ had thus practically all the way taken off her except what was due to the following sea. The master of the ‘Linn o'Dee,’ who of course could not see the ‘Warsaw’ any more than they could see him, imagined from the direction from which the sound signals were coming from the ‘Warsaw’ to him that they were becoming broader on his starboard bow, and that the two were passing vessels, as indeed they very nearly were, and that they would pass starboard to starboard, as they probably would have done had the ‘Warsaw’ not been going at an excessive rate of speed. When the‘Warsaw’ came in sight, the master of the ‘Linn o'Dee’ saw that his only chance of avoiding a collision was to go full speed ahead and put his helm hard to port, so as to send his stern away from the bow of the ‘Warsaw,’ and this manoeuvre would have been successful had the ‘Warsaw’ not been going at an excessive rate of speed, or if the ‘Linn o'Dee’ had had some way on her before the engines were ordered ahead, which very properly she had not, as I have already explained. The result was that the engines had only made a few revolutions before the collision took place, and these were insufficient to get up such way as to escape from the rapidly approaching ‘Warsaw.’ It is clear from the evidence that with the amount of sea following the ‘Linn o'Dee’ it would have been impossible for her to have gone astern before the lapse of some time had she reversed her engines and attempted that manoeuvre. Indeed it is plain that if she had attempted to do so it would have resulted in the ‘Warsaw’ cutting into the ‘Linn o'Dee’ amidships. The account given by those on board the ‘Warsaw’ of what the ‘Linn o'Dee’ did shows how little they were capable of taking in the situation at the time, owing very probably to the confusion they had just been in with their horses; for, according to them, the ‘Linn o'Dee’ starboarded her helm, thus sending her head to port, and thereafter ported

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her helm and brought her into collision with the ‘Warsaw’ in the manner described by both parties, which is an impossibility, considering the distance the vessels were from each other, and the length and tonnage of the ‘Linn o'Dee.’

It is noticeable that in the deposition made by the captain of the ‘Warsaw’ before the Receiver of Wrecks, he says that in his opinion the cause of the casualty was the dense fog and the ‘Linn o'Dee’ starboarding, and that it might have been avoided by that vessel having ported her helm. Now it is proved that this last was exactly what the ‘Linn o'Dee’ did, and further, it is plain that if the ‘Warsaw’ had been going at a less rate of speed that manoeuvre would have been successful in avoiding the collision altogether. The master of the ‘Linn o'Dee,’ on the contrary, in his deposition states that the cause of the casualty was the ‘Warsaw’ being navigated at too high a speed, and that it might have been avoided by that vessel feeling her way past the ‘Linn o'Dee,’ as was required in such weather. This statement is, in my opinion, in accordance with the facts of the case.

The question of the respective speeds at which the two ships were being navigated is, in my opinion, settled by the nature of the injuries which each vessel received. The nature of these injuries is very well shown by the photographs which have been lodged in process, and it is sufficient here to say that the hole in the ‘Linn o'Dee’ is 20 feet wide along her bulwark, that its length is 17 feet 9 inches, and that it was delivered in a slanting direction on her starboard quarter. It must have been a blow delivered with very great force, and but for the propeller shaft which the ‘Warsaw’ came against in cutting into the ‘Linn o'Dee,’ and which is a piece of solid iron nine or ten inches in diameter, it is apparent that the ‘Warsaw’ would have sawn the stern of the ‘Linn o'Dee’ right off. As it was, the propeller shaft was indented and disconnected from the engines by the blow it received. The experts' evidence is that to make a cut of that kind the ‘Warsaw' must have been proceeding at from five to six knots through the water. On the other hand, the injuries to the ‘Warsaw’ were of the most trifling description. The only serious indentation was in her stem where it had struck the propeller shaft of the ‘Linn o'Dee.’ Beyond that, on the starboard bow, No. 2 plate was broken and No. 3 plate was also broken, and the whole damage done took no more than an hour to repair.

Now the experts say, and I think it stands to reason, that had the ‘Warsaw’ been, as those on board of her say she was, at a standstill, and the ‘Linn o'Dee’ had come scraping across her stem at a speed of from five to six knots an hour, which they also allege, the ‘Warsaw's’ stem would have been deflected to starboard, and instead of a deep direct cut into the quarter of the ‘Linn o'Dee,’ the whole of her quarter and stern would have been

torn away in a ragged fashion to her very stern post. The experts for the ‘Linn o'Dee,’ whose opinion is concurred in by the nautical assessor, state that there is really no doubt that the ‘Warsaw's’ speed was excessive at the moment of the collision, considering the foggy weather that prevailed, and that the ‘Linn o'Dees’ headway was practically so small as to be of no consequence. This, I think, settles the matter.

It was submitted by the counsel for the ‘Warsaw’ that the ‘Linn o'Dee’ had broken a great number of the Regulations for the Prevention of Collisions at Sea, and in particular Nos. 16, 19, 22, and 23. With regard to 16, I am of opinion that the‘ Linn o'Dee’ observed that article, whereas the ‘Warsaw’ did not; while with regard to articles 19, 22, and 23 they appear to me to have no application to the present case, for these regulations apply only to cases where the party who ought to observe them is aware that they are applicable to the circumstances in which he finds himself, but if the circumstances are such that a competent seaman exercising care could not have discovered that the regulations were in fact applicable, a ship failing to obey one of these regulations is not deemed to be in fault. See Baker v. The Owners of the‘ Theodore H. Rand,’ L.R. 12 A.C. 247; Windram v. Robertson, 7 F. 665; and ‘ The Ceto,’ L.R. 14 A.C. 670. Now, the master of the ‘Linn o'Dee’ and those on board of her thought, and in my opinion were not to blame in supposing, that his vessel and the ‘Warsaw’ were passing ships, and indeed they very nearly were so, as their courses were only slightly angled to each other, and the whistles from the ‘Warsaw’ seemed to be broadening on the starboard bow of the ‘Linn o'Dee.’ Then, when they did find that they were crossing vessels, it is proved that for the ' Linn o'Dee’ to have stopped and reversed would have rendered the collision absolutely inevitable, whereas by adopting the manœuvre which she did she gave herself the only chance of escape, and, as the result showed, she nearly succeeded, and would have succeeded but for the careless navigation of the ‘Warsaw’.”

The owners of the “Warsaw” reclaimed, and the case was heard by the Judges of the Second Division along with a nautical assessor.

Argued for the reclaimers—The “Linn o'Dee” was in fault in only stopping her engines. Looking to either general considerations of prudent navigation or the regulations she ought to have reversed. The fact that the “Warsaw's” fog-signal was heard on the “Linn o'Dees” starboard side was consistent with two possibilities—firstly, that the “Warsaw” was a passing vessel, in which case there was no danger; secondly, that she was a vessel crossing from starboard to port, a case of danger. Of the two alternatives, assuming them equally probable, it was the duty of the “Linn o'Dee” to act upon the latter, the law being that a vessel must always assume that the more dangerous of two alternatives

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will happen. But in this case the latter was far the more probable, the “broadening” of the sound pointing to a crossing vessel. That being so, the “Linn o'Dee” was under article 19 bound to keep out of the other's way, and under article 23 to reverse. The “ Ceto,” 14 App. Cas. 670, see Lord Watson at 686; the “ Kirby Hall,” 8 P.D. 71; the“ John McIntyre,” 9 PD 135; the “Dordogne,” 10 PD 6; the “Ebor,” 11 PD 25; the“ Bondane,” 1900, 82 L.T. 828; the “ Cathay,” 1899, 81 L.T. 391. The articles were all to be read together, and 19 and 23 were not superseded in fog by article 16—the “ Merthyr,” 1898, 79 L.T. 676. But even if article 16 alone applied, “navigation with caution” made reversing necessary.

Argued for the respondents—Article 16 alone applied and furnished a complete code for the guidance of vessels in fog. The second paragraph of the article appeared for the first time in the Regulations of 1897, a fact which detracted from the value of decisions prior to that date. Articles 19, 21, 22, 23 could obviously only apply where the relative positions of the vessels had been ascertained; until then, compliance with these regulations was impossible. See the“ Theodore H. Rand,” 12 A.C. 247; Taylor v. Burger and Another, February 15,1898, 35 S.L.R. 398: Windram v. Robertson, May 23, 1905, 7 F. 665, 42 S.L.R. 602; Marsden on Collisions, 5th ed., pp. 380, 381.