Scottish Court of Session Decisions

The Merchant Shipping Act 1894 (57 and 58 Vict. cap. 60), section 419 (4), enacts—“… Where in a case of collision it is proved to the Court before whom the case is tried, that any of the collision regulations have been infringed, the ship by which the regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary.”

The Regulations of 1897 for Preventing Collisions at Sea, inter alia, provide—Article 15—“In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this article shall be used as follows, viz.—( e)… A vessel under way which is unable to get out of the way of an approaching vessel through being not under command, or unable to manœuvre as required by these rules, shall … at intervals of not more than two minutes, sound three blasts in succession, viz., one prolonged blast followed by two short blasts.…” 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.”

It was stated at the bar that the Government of Austria had adopted the Collision Regulations but not the provisions of the Merchant Shipping Act 1894.

On 10th February 1907, during a dense fog, a collision took place between the s.s. “James Joicey,” of London, and the s.s. “Kostrena,” of the port of Fiume, Austria, at a point north-east of Yarmouth beyond the three-mile limit.

Actions were brought by William Cory & Son, Limited, the owners of the “James Joicey,” against Andrea Kopajtic, master of the “Kostrena,” and as such representing in this country the owners, et e contra, for the damages sustained by these vessels respectively in the collision.

The actions were conjoined and a proof was allowed and led.

The facts appear from the opinion ( infra) of the Lord Ordinary ( Salvesen), who on 11th June 1907 pronounced an interlocutor finding that the collision was caused solely by the fault of those in charge of the “Kostrena.”

Opinion—“These counter actions arise out of a collision which took place on the 10th of February 1907 between the Austrian steamship ‘Kostrena’ and the British steamship ‘James Joicey.’ At the time of the collision there was a dense fog. The sea was smooth, and there was a light wind from the south-west. The collision took place some distance north of the Middle Cross Sand Lightship, which is situated off the coast of Norfolk and in a northeasterly direction from Yarmouth. Both vessels were seriously damaged, but the question of liability is the only one which I have to determine at present.

“There is a remarkable agreement as to the point of time at which the collision occurred. Roughly speaking, it may be taken that the moment of impact was about twelve o'clock noon on the 10th, which was a Sunday. At that time the fog was so dense that, according to the evidence of those on board the ‘Kostrena,’ a vessel could not be seen at a greater distance than four or five hundred yards, while according to the evidence of the master of the ‘James Joicey’ a vessel could only be seen a hundred yards away. The second officer of the ‘Kostrena’ says that the ‘James Joicey’ only became visible at two or three hundred metres from the ‘Kostrena,’ and probably the truth lies somewhere between his figure and that of the master of the ‘James Joicey.’ The fog was therefore of such a character that it was incumbent on both vessels to proceed at a moderate rate of speed, more especially in the locality in question, which is in the direct track of all the traffic passing from Scotland and the Baltic southwards to London and through the English Channel.

The fog had commenced on the evening of the preceding day, and about 9 p.m. the ‘James Joicey’ was in collision with another vessel called the ‘Syria.’ In that collision she had her stem from the 13-foot line upwards carried away, and although the damage was somewhat above the water-line, it was so near it that the forward collision compartment soon completely filled. For some time thereafter she was accompanied by the ‘Syria,’ but about 2 a.m., as there appeared to be no immediate danger to the ‘James Joicey,’ the vessels parted company and the ‘James Joicey’ proceeded on her course. At 9·30 a.m. she passed the Newarp buoy at so short a distance that the officer in charge was able to see the buoy itself notwithstanding the continuance of the fog. According to the whole evidence the engines were from that time kept moving dead slow, except for ten minutes between 10·50 and 11, during which they were put to half speed.

After this collision with the ‘Syria’ the ‘James Joicey’ exhibited two red lights, indicating that she was not under command, and next morning the captain had them replaced with two black balls, which constitutes the corresponding day signal. In my opinion this latter signal ought never to have been exhibited. The engines of the ‘James Joicey’ were uninjured, and so was her steering gear. It is true that she was not able to proceed at full speed, and could not therefore manœuvre so rapidly as if she had been uninjured, but there was nothing to prevent her proceeding dead slow, or even with her engines

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at half speed, which according to the expert evidence would give her a movement through the water of about six knots. I was referred on this point to two cases—the ‘ Hawthornbank,’ 1904, P.D. 120 and 129, and the ‘ P. Caland,’ 1893, A.C. 207. The former was the case of a sailing ship which had been injured by a collision, her foretop mast and head stays with sails and gear having been carried away and her bows stove in. She had hoisted her lower maintop sail, and was moving through the water at about three knots, and she was held to be not under command, although she was being steered in a definite course which she was able to alter, although very slowly. That was a very special case, and the present seems to me to be practically ruled by the decision of the Privy Council in the second case referred to. Here the vessel was able to proceed at five or six knots an hour. She could stop and reverse her engines, which were uninjured; and she could steer, although she would not answer her helm so quickly as when going at a higher speed. A vessel in such circumstances cannot, in my opinion, be described as being ‘not under command’; and I think the master of the ‘James Joicey’ made a mistake in exhibiting a signal to that effect. Fortunately for her, however, it is not said that the signal in any way misled the ‘Kostrena,’ or could have done so looking to the very short period which elapsed from the time that it was seen until the collision. The sounds signal, which in a fog is prescribed with the view of warning vessels that they are in the vicinity of a ship not under command, was not sounded, and strange to say, does not appear even to have been known to the master of the ‘James Joicey.’

As neither vessel had an opportunity of observing the other until the collision was imminent, the evidence as to speeds, courses, and navigation must be derived exclusively from the witnesses on board each. There is only one matter with regard to which there is a complete conflict of evidence. According to the ‘Kostrena,’ the whistle of the ‘James Joicey’ was heard about three points on her port bow, and before the collision she was seen on the port side crossing at an angle of 45 degrees from port to starboard. The witnesses from the ‘James Joicey,’ on the other hand, deponed that the ‘Kostrena’ was on her starboard bow when her whistle was first heard, and that she was seen crossing at a broad angle on a port helm from the starboard to the port side of the ‘James Joicey.’ This curious conflict is difficult to explain; but the real evidence enables me to prefer the story of the ‘James Joicey.’ The vessels were practically approaching on parallel courses; and I am satisfied, for reasons that I shall afterwards explain, that the ‘Kostrena’ was going at a much higher rate of speed than the ‘James Joicey.’ If therefore the ‘Kostrena’ ported her helm, as her witnesses say, some short time before the collision, it was impossible that the collision could have occurred unless the ‘James Joicey’ had previously starboarded and was proceeding at a much higher rate of speed. On the other hand, the collision is amply explained by the ‘Kostrena’ porting her helm when she had the ‘James Joicey’ on her starboard bow. The only evidence for the ‘Kostrena’ that tends to support her case is that given by Captain Tait, who says that, taking the courses of the two vessels described in their logs, the ‘James Joicey’ would pass to the westward of the ‘Kostrena.’ The value of that evidence, however, depends on the distance at which the ‘Kostrena’ passed the Middle Cross Sand Lightship, which is a mere matter of estimate, and also on the assumption that the courses of the two vessels were maintained with mathematical accuracy.

The next question is, what were the respective speeds of the two vessels prior to the collision? It is admitted that for an hour the ‘James Joicey’ had been going against the tide, while the ‘Kostrena’ had the tide with her. If, therefore, each vessel had her engines going dead slow, which would represent a speed through the water of three knots, the actual speed over the ground of the ‘Kostrena’ would be much greater than that of the ‘James Joicey.’ The only scientific calculation of the strength of the tide during the hour preceding the collision is made by Captain Cowie, who puts it at 2·64 knots per hour. On that assumption the ‘Kostrena’ would be moving at least 5·64 knots as against a speed of ·36 knots for the ‘James Joicey.’ Even if the tide was only flowing a knot and a half an hour, as some of the witnesses estimate, the ‘Kostrena’ would still be going at 4 1 2 knots or three times as fast as the ‘James Joicey.’ Mr Dickson asked me to hold that the ‘James Joicey’ must have been going at high speed. There is no evidence whatever from which I could draw that inference. The engineer's log book, which is carefully kept, records that for nearly an hour before the collision her engines were kept moving dead slow; and the distance she covered in the previous four hours is entirely consistent with the entries in the log. The Solicitor-General in the same way asked me to hold that the ‘Kostrena’ had her engines moving at half speed. I think I am not at liberty to draw this inference either, and I cannot hold it proved that the ‘Kostrena’ was going at a greater rate of speed over the ground than 5 1 2 or six knots. Considering the fog which prevailed, I am of opinion that this was in excess of a moderate speed. It was sought to be justified on the ground that the ‘Kostrena’ would not have steerage way unless she were going at least three knots through the water. I cannot accept that evidence, because cases frequently occur of vessels moving only from one to two knots through the water, and yet having sufficient steerage way to navigate narrow channels. The ‘Kostrena’ was therefore to blame for infringing the first part of article 16 of the Regulations for Preventing Collisions at Sea.

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The ‘Kostrena’ was also, in my opinion, further to blame for infringing the second paragraph of article 16. This paragraph is in the following terms:—… [ Quotes supra]…. On her own showing the ‘Kostrena’ did not observe this regulation. At 11·45 she heard the whistle of a vessel that she now believes to have been the ‘James Joicey’ about three points on her port bow. It was imperative that she should then stop her engines. The reason of the rule, as explained by the Lord Justice-Clerk in the case of ‘ The Warsaw,’ 8 F. 1013, is ‘to give opportunity of accurate observation of ‘sound;’ and it is noticeable that according to the engineer's log the ‘Kostrena’ had done this on previous occasions. The excuse suggested for not complying with the rule is, that if the ‘Kostrena’ lost steerage way her position might be endangered because of the number of vessels whose signals she heard on all sides, is untenable. The fact that the locality was crowded with shipping made it all the more necessary for the ‘Kostrena’ to observe the rule. It does not of course follow that the engines should remain stopped, but I think it may be assumed in this case that if the rule had been complied with the ‘Kostrena’ would in all probability have correctly located the position of the ‘James Joicey’ as on her starboard bow and not on her port bow, and that she would further have made the collision less likely by having had her way considerably reduced.

It follows from what I have said that the ‘Kostrena’ was still further to blame in porting her helm before she had ascertained the correct position of the approaching vessel. On the theory that that vessel was still three or four points on the ‘Kostrena's’ port bow the manœuvre is unintelligible, although if the position of the ‘James Joicey’ had been correctly located it would of course have been harmless. It was this manoeuvre which directly led to the collision, and brought the ‘Kostrena’ across the ‘James Joicey's’ bows at an angle variously estimated at from 60 to 90 degrees. The only possible explanation seems to be that the master of the ‘Kostrena’ realised when he heard the second blast from the ‘James Joicey’ that she was not in the position he originally believed, and that for the moment he lost his head.

It is a more difficult question whether the ‘James Joicey’ was also to blame, and no less than seven charges are made against her in cond. 3, some of which, however, are no longer insisted in. I have already dealt with the first two [ in being under way in the fog when not under command and there were a number of steamers in vicinity; and in proceeding at excessive speed in the fog], and the seventh [ in failing to give the proper signals for a vessel not under command]. The fourth, fifth, and sixth are not supported by the evidence, and as I understood from the counsel for the ‘Kostrena’ were not insisted in. There remains the third charge, which is to the effect that the ‘James Joicey’ was to blame in failing to stop her engines on hearing forward of her port beam the fog signals of the ‘Kostrena,’ and thereafter to navigate with caution. This charge rests on a single entry in the mate's log, which puts the time when the ‘Kostrena's’ whistle was heard at 11·50 a.m., whereas according to the evidence the engines were not stopped until a few minutes before the collision. The complete entry is as follows:—‘About 11·50 a.m. heard a steamer's whistle on her starboard bow, our engines were stopped, and a whistle was again heard on starboard bow, and almost at the same time a steamer loomed out of the fog.’ The engineer's log records that the engines were stopped at 11·57, and were put full speed astern at 11·59. Reading these two documents together, it was powerfully argued that the ‘James Joicey’ must be taken to have heard the first whistle of the ‘Kostrena’ on her starboard bow at 11·50, that the engines were not stopped until seven minutes later, and that the collision occurred about 11·59 or 12 o'clock. In my opinion this is not the only construction of the documents. The mate's log, which records the time of hearing the first whistle as about 11·50, may also be read as implying that the engines were thereafter immediately stopped; and that is what the captain and mate say in their evidence, the only difference being that they place the time when they heard the first blast at 11·54 or 11·55, and put the collision at 11·57, or two or three minutes earlier than the engineer. It is no doubt strange, if the ‘Kostrena's’ whistle was being regularly sounded, that it had not been heard by those on board the ‘James Joicey.’ But the onus of proving a breach of a statutory regulation which raises a presumption of fault is on the person who alleges it, and in my opinion the evidence is insufficient to justify the conclusion which the ‘Kostrena's’ counsel pressed upon me. Even if the ‘James Joicey’ heard the whistle at 11.50 and failed to stop, I do not see how that could have contributed to the collision. Moving, as she was, only from a half to one knot per hour over the ground, she could not have remained stopped for more than a fraction of a minute before she would entirely lose her way, and it is difficult to suggest how she could have been navigated with greater caution than she actually was. I accordingly pronounce the ‘Kostrena’. solely to blame for the collision.”

The master of the “Kostrena” reclaimed.

The reclaiming note was heard with a nautical assessor.

Argued for the “Kostrena” (reclaimer)—(1) The “Kostrena” was not in fault. ( a) Her speed was not excessive. Where both vessels were in motion speed over the ground was not the test but speed through the water, i.e., the speed at which her engines were running—Marsden on Collisions at Sea, 5th edition, p. 374, et seq.; the “ Resolution, 1889, 6 Asp. Mar. Cas. 363; the “ Germanic,” the Times, February 22, 1896. The Lord Ordinary had consequently erred

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in adding the rate of the tide (about 2 1 2 knots) to her engine speed. ( b) Neither was she in fault in not stopping her engines on hearing the whistle of the “James Joicey.” As there were other vessels round it was important not to lose steerage way. Though Austria had adopted the Regulations, that did not imply that the statutory presumptions of fault in the Merchant Shipping Act 1894, sec. 419 (4), applied to an Austrian vessel outside the three miles limit—Merchant Shipping Act 1894, section 418 (2), and section 424; Mortimer v. Peters, July 19, 1906, 8 F. (J.) 93, 43 S.L.R. 872; the “ Fanny M. Carvill,” 1875, 13 App Cas 455 (note), 2 Asp. Mar. L.C. (N.S.) 565; the “ Magnet,” 1875, L.R., 4 Ad. & Ec. 417; the “ Hibernia,” 1874, 2 Asp. Mar. L.C. (N.S.) 454; the “ Saxonia,” 1862, 1 Lush. 410; The Queen v. Keyn, 1876, L.R., 2 Ex. D. 63. ( c) The “Kostrena” was not in fault in porting her helm. The “James Joicey” was on her port bow, and the courses were not parallel courses. (2) The “James Joicey” was in fault. ( a) Her speed, i.e., her speed through the water (see argument above as to speed), was excessive. ( b) She was in fault in not stopping on hearing the “Kostrena's” whistle. According to the mate's log she heard the “Kostrena's” whistle “about 11·50,” and according to the engineer's log her engines were only stopped at 11.57. This was prima facie evidence of delay in stopping her engines. The evidence of a ship's log was very strong when against its interests—The “ Eleanor,” 1809, 1 Edwards 135; Campbell v. Tyson, December 22, 1841, 4 D. 342; the “ L'Etoile,” 1816, 2 Dodson 106; Clyde Shipping Company, Limited (“Flying Wizard”) v. Miller (“ Sunbeam”), July 11, 1907, 44 S.L.R. 920. Moreover, the onus was on the “James Joicey,” as the ship alone within whose knowledge these facts were, to free herself from this charge— The “John Harley” v. the “William Tell,” 1865, 13 L.T.R. 413. ( c) The “James Joicey” was in fault in starboarding her helm just before the collision. ( d) She was in fault in not giving the signal of one long and two short blasts prescribed by article 15 ( e) for a vessel “not under command.” Owing to being partially waterlogged and unable to go at full speed ahead she could not get out of the “Kostrena's” way as quickly as the latter was entitled to expect. She was accordingly “not under command”—The “ P. Caland,” [1893] AC 207, Lord Herschell at p. 213; the “ Hawthornbank,” [1904] P 120. If the appropriate signal had been given the “Kostrena” might have stopped and gone astern, but it was not for her to say what she would have done. The “James Joicey” must be deemed to be in fault unless she could show that her omission could not have contributed to the accident—the “ Duke of Buccleuch,” [1891] AC 310; the “ Fanny M. Carvill” ( cit. sup.); the “ Arratoon Apcar,” 1889, L.R., 15 A.C. 37.

Argued for the owners of the “James Joicey” (respondents)—1. The “Kostrena” was in fault. ( a) Her speed was excessive, ( b) At any rate, the admission of the failure to stop was practically an admission of fault, for whether the statutory presumption of fault in the Merchant Shipping Act applied to the “Kostrena” or not, the failure to stop was a breach of good seamanship—a breach of the articles for preventing collisions which admittedly applied. ( c) She was in fault in porting her helm. She had made a wrong guess as to the position of the “James Joicey,” who was really on her starboard bow and on a nearly parallel course. In a dense fog she had no right to change her course without having located the vessel whose whistle she heard— Crawford (“Warsaw”) v. Granite City Steamship Company, Limited (“Linn o'Dee”), July 5, 1906, 8 F. 1013, 43 S.L.R. 732; the “ Resolution” ( cit. supra). (2) The “James Joicey” was not in fault. ( a) Her speed was not excessive, even though speed through the water was taken as the test. That, however, was an artificial test. A speed of half an knot or one knot over the ground could not be regarded as excessive whatever the tide against the vessel. ( b) She did stop on hearing the “Kostrena's” whistle. The logs of the mate and of the engineer were not inconsistent with each other, nor with the view that she stopped at once on hearing the “Kostrena's” whistle. ( c) She was not in fault in starboarding her helm. ( d) She was not in fault in not sounding one long and two short blasts. She could not be properly regarded as a vessel “not under command.” That was a question depending on the circumstances, and in view of the fog she would not have been entitled to go fast. At the slow rate of which she was capable she steered quite well. To say that she was “not under command” because she could not get out of the way quick enough, was inconsistent with the former accusation of excessive speed. Moreover, it could not be said that the “Kostrena,” which did not stop for the one signal, would have stopped for the other. The duty to stop was imperative in both cases. Accordingly, even assuming the correct signal was not given, that omission did not contribute to the accident.