Anglo Newfoundland Development Company Ltd v Pacific Steam Navigation Company Ltd; Owners of the Bogota v Owners of the Alconda
| Jurisdiction | England & Wales |
| Judge | Lord Dunedin,Lord Atkinson,Lord Shaw of Dunfermline,Lord Phillimore,Lord Blanesburgh |
| Judgment Date | 11 February 1924 |
| Judgment citation (vLex) | [1924] UKHL J0211-3 |
| Docket Number | No. 7. |
| Court | House of Lords |
| Date | 11 February 1924 |
[1924] UKHL J0211-3
House of Lords
Lord Dunedin.
Lord Atkinson.
Lord Shaw.
Lord Phillimore.
Lord Blanesburgh.
After hearing Counsel, as well on Monday the 26th as Tuesday the 27th, days of November last, upon the Petition and Appeal of Anglo-New-foundland Development Company, Limited, Grand Falls, Newfoundland, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 1st of March 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of the Pacific Steam Navigation Company, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 1st day of March 1923, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The screw steamer "Bogota," a ship 415 feet long, had to leave the Elderslie Graving Dock where she had been lying in order to proceed up the Clyde to Prince's Pier. The said dock is situate on the north bank of the Clyde, and enters the river at an angle westward of about 30°. The total width of the river ex adverso of the dock is about 500 feet. The operation of leaving the dock took place at 4.40 p.m. on the 9th December 1921. At that time there was lying moored immediately to the westward of the entrance to the dock a screw steamer "War Afridi." The "Bogota" left the dock stern first, her steam was up but she was not propelled by her own screw. A tug, the "Samson," was attached to her stern with a tow rope of about 12 feet long and pulled her out. She was attached forward by hawsers to blocks on each side of the dock, which hawsers were paid out as she proceeded. The intention of the manœuvre was, so soon as she got clear of the dock, to attach another tug to her bow and then when she was straightened to tow her up the river proceeding along the south bank to Prince's Pier. At this time there was a flood tide running at about two miles an hour. After making certain signals, which will be more particularly set forth hereafter, she had proceeded so far with the manœuvre that her stern was a little over 100 feet from the south bank, she lying still un-straightened and athwart the stream, when a steamer, the "Alconda," which was proceeding up the river, came into collision with the tug "Samson," inflicting damage and knocking it against the stern of the "Bogota," which was in consequence injured. The effect of the blow was further to slew the stem of the "Bogota" against the "War Afridi," causing injury to both vessels. The "Alconda" herself was also injured. Cross actions of damages were raised by the "Bogota" and the "Alconda" in the Sheriff Court of Glasgow. The learned Sheriff Substitute, before whom the case depended, after proof led, pronounced an interlocutor, finding both vessels at fault, and apportioning the damage equally between them. Appeal was taken, to the Second Division of the Court of Session, when a majority of the Court recalled the interlocutor, and found the "Alconda" alone to blame. Lord Ormidale dissented, agreeing with the Sheriff Substitute. Appeal has now been taken to your Lordships' House by the owners of the "Alconda." They admit fault, but pray that the interlocutor of the Sheriff Substitute should be restored.
As your Lordships are aware, a case of this sort is regulated by the 40th section of the Judicature Act, which requires the Division of the Court of Session, before whom the case, originating in the Sheriff Court in which proof has been led, depends, to pronounce specific findings of fact and findings of law, and prescribes that on appeal to this House the findings of fact must be regarded in the same manner as a special verdict by a jury and not open to review, review being confined to the findings in law alone. The effect of these provisions has been explained in your Lordships' House on more than one occasion and notably in Mackay v. Dick, 6 Appeal Cases 251, Shepherd v. Henderson, 7 Appeal Cases 49, Caird v. Seine, 12 Appeal Cases 326, and Gilroy v. Price, 20 R. (H.L.) 1.
It is unnecessary to repeat what was there said, but I will add this, as I do not find it explicitly mentioned. It is not legitimate to extract a new finding of fact from the opinions of the Judges, although it is legitimate to use those opinions to explain, if necessary, any ambiguity in the findings of fact. The result is that we are bound in this case to take the facts as set forth in the interlocutor of the Second Division. At the same time, as pointed out by Lord Atkinson, in Herbert v. Samuel Fox, 1916 Appeal Cases 413, we are not bound to take as a finding of fact a finding which is called a finding of fact but which in reality is a finding of law or of mixed fact and law. I accordingly turn to the interlocutor to see what are the facts upon which the case falls to be decided. I need not read them all because many of them just set forth in distinct propositions the narrative which I have already given, but the crucial findings which are not covered by my narrative are as follows:—
"(8) That about 4.40, no vessels being in sight, either coming down or going up, the 'Bogota' gave three short blasts with her whistle, and the 'Samson,' having replied with similar three short blasts, proceeded to tow the 'Bogota' out of the dock stem first and that these blast signals were repeated by both vessels; (9) that the 'Bogota' did not give a prolonged blast of the whistle before leaving the graving dock as prescribed by Rule 18 of the Byelaws and Regulations of the Clyde Navigation Trustees, but that the failure to give such a blast had no bearing on the collision which subsequently took place; (10) that the movement of the 'Bogota' was hampered ( a) by the presence of the 'War Afridi,' a large vessel, which was moored to the quay just outside the dock entrance with her head pointed to the east and ( b) by the flowing tide which operated more and more strongly upon her as she gradually came out of the dock, and had a tendency to throw her stern to the south and her bow towards the bow of the 'War Afridi'; (11) that when the 'Bogota' was about two-thirds out of the dock and the stern of her tug 'Samson' was about mid-channel, the defenders' vessel, 'Alconda,' a steamer 381 feet over all in length, under her own steam and with two tugs attached, one ahead and one astern, was seen rounding the bend of the river below Renfrew Ferry about three-quarters of a mile away; (12) that when the 'Bogota' sighted the 'Alconda' she gave four short blasts of her whistle, which were repeated by the tug 'Samson,' thereby indicating to approaching vessels that the river was blocked and that, as the 'Alconda' came on, the four-blast signal was repeated by both the 'Bogota' and the tug 'Samson'; (13) that having thus given warning to vessels, including the 'Alconda,' the 'Bogota' was, in the circumstances, and particularly in view of the extent to which her manœuvre had been conducted, entitled to continue and complete her movement of quitting the dock and straightening herself in the Channel; and that she was not bound to hold on, in the position to which she had attained, till the 'Alconda' had passed; (14) that the 'Samson's' bow was almost directly astern of the 'Bogota,' but slightly towards the port quarter, her bow being only 12 feet from the 'Bogota's' stern and that she was doing her utmost to keep the stern to the north against the influence of the tide; (15) that while these operations were going on, the 'Alconda' with her two tugs was coming up the river at a speed of at least six miles an hour and that she observed a light in mid-channel when she was about Renfrew Ferry, this light being the stem light of the 'Samson'; (16) that she was continuing on her course when her pilot sighted the hulls of the 'Bogota' and 'Samson' about three or four ship-lengths ahead, and about the same time the master heard a four-blast whistle (which the pilot also heard but took to be a three-blast whistle) and that in reply to the master's inquiry the pilot explained that on the Clyde it meant 'I am blocking the river'; (17) that, notwithstanding, the pilot thought that he could pass to the south of these vessels, and accordingly ported his helm, blew one blast of his whistle and attempted to pass; (18) that in doing so he collided at about 4.45 p.m. with the 'Samson,' the bow of the 'Alconda' striking her port quarter, forcing her back on the 'Bogota's' rudder, which fortunately was hard-a-port at the time and so acted to some extent as a...
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