Beucker v Aberdeen Steam Trawling and Fishing Company, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 17 March 1910 |
| Date | 17 March 1910 |
| Docket Number | No. 96. |
| Court | Court of Session |
Ld. Salvesen, Lord Justice-Clerk, Lord Low, Lord Ardwall, Lord Dundas.
ShipCollisionDuty of oncoming vesselDeparture from Collision RegulationsGeneral Regulations for Preventing Collisions at Sea, 27th Nov. 1896, Articles 19, 21, 27, 29.
The General Regulations for Preventing Collisions at Sea, provide:Art. 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. Art. 21. The other shall keep her course and speed. Art. 27. In obeying and construing these rules, due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger. Art. 29. Nothing in these rules shall exonerate any vessel from the consequences of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
On a clear moonlight night in the North Sea the steam-trawler Strathfillan ran into the steam-trawler Irmgard. The vessels were approaching on converging courses, and were visible to each other for a considerable distance, the Strathfillan having the Irmgard on her starboard side. The Strathfillan, whose duty it was to keep out of the way, never altered her course or speed, and the Irmgard took no action until the vessels were about a length and a half apart when she ported her helm, not to avoid the collision, which was then inevitable, but in order to mitigate (as it did) the effect of the blow.
In an action of damages by the owner of the Irmgard against the owners of the Strathfillan, the defenders admitted that the Strathfillan was in fault, but maintained that the Irmgard was also to blame for not taking action when she saw that a collision could only be averted by her doing so.
Held (rev. judgment of Lord Salvesen, who held that the Irmgard should have stopped and reversed) that the master of the Irmgard had acted in the circumstances with reasonable care and skill, and was not to blame for keeping his course and speed, and that the Strathfillan was solely to blame for the collision.
ShipCollisionDamagesExpenses of repairs and loss by detention.
After a collision in the North Sea, about eighty miles from Buchanness, between two steam-trawlers, for which one was solely to blame, the vessel which was not in fault put in to Aberdeen for temporary repairs, and then proceeded to her home port at Geestemunde in Germany, where she was finally repaired at a cost of about 350, the repairs occupying fourteen days. In an action between the owners of the vessels it was proved that the repairs could have been executed at Aberdeen in ten days for about 220.
Held (aff. judgment of Lord Salvesen) that, in the circumstances of the case, the owner of the injured vessel could only recover a sum equal to the cost of repairing the vessel at Aberdeen, together with compensation for the time which the vessel would have lost if she had been repaired there.
Otto Beucker, shipowner, Geestemunde, Germany, registered owner of the steam-trawler Irmgard, and Boyd, Jameson, & Young, W.S., Leith, his mandataries, raised this action against The Aberdeen Steam Trawling and Fishing Company, Limited, and Thomas Arthur Mack, the registered owners of the steam-trawler Strathfillan, concluding for 1000 as damages in respect of injuries sustained by the Irmgard through a collision with the Strathfillan.
The pursuer averred:(Cond. 2) On 29th January 1908 the Irmgard left Geestemunde for a fishing voyage to Iceland, and on 16th February, after having finished fishing, she proceeded on her voyage home to Geestemunde. About 4.35 on the morning of 19th February 1908, when the Irmgard was in the North Sea [about eighty miles from Buchanness], and was steering a course about S.S.E. 1/2-E., the white masthead light of a vessel, which subsequently turned out to be the steam-trawler Strathfillan, of Aberdeen, was sighted. Her green light was shortly thereafter also observed. The Strathfillan, continued to approach the Irmgard, and in order to attract her attention one long blast on the steam-whistle was given by the Irmgard. The Strathfillan, however, kept on her course, and coming up struck the Irmgard on the port side. Just before the vessels struck, when collision was inevitable, the helm of the Irmgard was ported in order to ease the collision and lessen the angle of impact. The lights of the Irmgard were burning brightly, and it was a clear moonlight night. (Cond. 3) As the Irmgard was leaking on account of the considerable damage caused to her by the Strathfillan, it was necessary for her to make for Aberdeen, where temporary repairs were effected. The Irmgard left Aberdeen on 20th February, and arrived at Geestemunde on 22d February, where she went into dock for final repairs.
He also averred that the collision was wholly due to the fault and negligence of those in charge of the Strathfillan, in failing to keep out of the way of the Irmgard, contrary to the Regulations for Preventing Collisions at Sea, Article 19.
The defenders on record maintained that the Strathfillan was not to blame, but ultimately conceded that the account of the collision contained in the pursuer's averments was substantially correct, and that the Strathfillan was in fault. But they averred that the Irmgard was also in fault in failing, when risk of collision became apparent, to take action to avert the same, contrary to the Regulations for Preventing Collisions at Sea, articles 21 (Note) 23, 27, and 29.*
The pursuer lodged a statement of the damages sustained by the Irmgard, which included (1) cost of repairs executed at Geestemunde, 348; and (2) loss during the detention at Geestemunde (14 days), while the repairs were being executed, 234. He also claimed for (a) loss of market through delay in reaching Geestemunde owing to the collision; (b) agency fee to managing owner in connection with collision and repairs, including postages, telegrams, &c.; and (c) account for temporary repairs at Aberdeen; but these claims were not insisted on in the reclaiming note. There were other items of claim, including survey fees, amounting to 15, 16s., which were not disputed.
The defenders stated that the repairs could have been executed at Aberdeen in ten days for about 180.
The pursuer pleaded;The pursuer, having sustained loss and damage to the amount of the sum sued for, through the fault of those in charge of the Strathfillan, for whom the defenders are responsible, is entitled to decree as concluded for, with expenses.
The defenders pleaded;(4) The collision having been at least materially contributed to by the fault of the Irmgard, the damages fall to be divided between them, according to the rules of Admiralty practice. (5) In any event the sum sued for is excessive.
Proof was taken on 5th and 6th February 1909. The defenders did not adduce the evidence of any of the persons on board the Strathfillan at the time of the collision.
The import of the evidence both as regards the circumstances of the collision and the question of damages sufficiently appears from the opinion of the Lord Ordinary (Salvesen).
On 20th February 1909 the Lord Ordinary pronounced an interlocutor finding that the collision occurred in consequence of fault on the part of those respectively in charge of both vessels, assessing the damages caused by the collision to the pursuer at 325, 16s., and to the defenders at 81, and apportioning the loss equally between the parties.*
The pursuer reclaimed.
The case was heard before the Second Division on 2d November 1909 and following days.
Argued for the pursuer;(1) Collision.The Strathfillan being admittedly in fault, the onus lay on her to prove that the Irmgard had not acted properly.1 This onus she had failed to discharge. The Irmgard had been navigated with all reasonable care under the circumstances, and she was not to be blamed merely because, as events turned out, the collision might have been averted if she had acted differently. Where one ship was placed in a position of serious danger by the negligence of another, perfect skill and presence of mind would not be required from the master of the ship which was placed in such a position. The master of the Irmgard was in this dilemma, that if he kept his courseas by Article 21 of the Regulations he was bound to doand a collision occurred, he would be
blamed for obeying the regulation, while if he altered his course, and a collision occurred, he would be blamed for not obeying the regulation. The crisis was a matter of seconds, and in the whole circumstances the master of the Irmgard had acted with all the skill which could be demanded of him.1 (2) Damages.The pursuer was entitled to the actual cost of the repairs at Geestemunde, and to compensation for the actual period of detention thereno objection being taken to the rate of compensation. An injured party was no doubt bound to act reasonably, so that the damage should not be aggravated. But if he did so, he would not be penalised, because it ultimately appeared that another course would have been better.2 In the present case the pursuer had acted reasonably in taking the vessel to Geestemunde to be repaired.
Argued for the defenders;(1) Collision.It was no defence for the Irmgard to say that it was her duty under Regulation 21 to
keep her course and speed, and that she did so. It was well established that, in circumstances which made a departure from the regulation necessary in order to avert a collision, it was the duty of the on-coming vessel to take action, and if she failed to do so, she was guilty of negligence.1 This was just the common law rule of contributory negligence.2 The present was a case in which it had been shewn to the satisfaction of the Court that a departure...
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...Lord Herschell, at p. 694. 8 The Albano v. Allan Line S.S. Co.ELR, [1907] A. C. 193; Beucker v. Aberdeen Steam Trawling and Fishing Co., 1910 S. C. 655; The Huntsman, (1911) 11 Asp. M. L. Cases, 606; The Tempus,ELR [1913] P. 166; The Olympic v. H.M.S. Hawke,ELR [1913] P. 214, per Vaughan Wi......