Boy Andrew (Owners) v St. Rognvald (Owners)
| Jurisdiction | England & Wales |
| Judge | Viscount Simon,Lord Porter,Lord Oaksey,Lord MacDermott |
| Judgment Date | 28 July 1947 |
| Judgment citation (vLex) | [1947] UKHL J0728-2 |
| Court | House of Lords |
| Docket Number | No. 7. |
| Date | 28 July 1947 |
[1947] UKHL J0728-2
Viscount Simon
Lord Thankerton
Lord Porter
Lord Oaksey
Lord MacDermott
House of Lords
My Lords,
The collision between these two vessels occurred in the Firth of Forth at about 9.35 a.m. on November 9th, 1941. The "Boy Andrew" was a herring drifter converted for naval service, flying the White Ensign, and employed by the Admiralty in anti-submarine work. She was 90 feet long with 20 feet beam and approximately 10 feet draught. The "St. Rognvald" is a British commercial vessel 230 feet long, 31 feet beam, and her draught at the time of the collision was 12 feet forward and 17 feet 8 inches aft. Both vessels were proceeding on an easterly course in a swept channel runnning east and west which was two cables wide and was marked by a line of buoys placed in the centre line of the channel at intervals of about a mile. The wind was from the south- east, of a strength of about 5 on the Beaufort scale, and there was an ebb tide running out at about one and a half or two knots. Visibility was reasonably good. When the "St. Rognvald" entered the buoyed channel from Leith harbour, there were three vessels proceeding eastward along the channel ahead of her: a Ben Line ship immediately ahead, the "Boy Andrew" ahead of the Ben Line ship, and ahead of that again a Norwegian vessel, the "Sverre Nergaard", the pilot of which was called as a witness by the owners of the "St. Rognvald" and gave important evidence. The Ben Line ship overtook both the "Boy Andrew" and the "Sverre Nergaard" before the collision, passing the "Boy Andrew" on the latter's port side, and so disappears from the case. The "Boy Andrew" was doing 8 knots before the collision, and the "St. Rognvald" 9 knots. When the "St. Rognvald" had proceeded about three miles down the swept channel and was approaching number 7 buoy, she had the "Boy Andrew" on her port bow. At that time both vessels were pursuing the same compass course, the "Boy Andrew" being slightly to the north of the middle line of the southern half of the swept channel, thus leaving rather more than 300 feet of swept water on her starboard side. The "St. Rognvald" was pursuing a parallel course about 100 feet in lateral distance to the South of the course of the "Boy Andrew", and she held to this course, after passing number 7 buoy and while making to overtake the "Boy Andrew".
The relation between the "St. Rognvald" and the "Boy Andrew" was, therefore, that of overtaking and overtaken vessels, and by Article 24 of the Regulations for Preventing Collisions at Sea the overtaking vessel was under a duty to keep out of the way of the overtaken vessel, while by Article 21, the overtaken vessel was under a duty to "keep her course and speed". It may be useful to point out that these Articles prescribing what is to be done when one ship overtakes another do not exactly correspond with the rules of the road. An overtaking motor is, of course, under the duty so to steer as to keep out of the way of the motor in front, but the motor in front is not bound, when about to be overtaken, to maintain its course, but, if there is room, may prudently provide more space for the overtaking car to pass by turning in towards the near kerb. The reason is that on land an overtaking car should overtake by passing on the right side of the vehicle in front, whereas at sea cases may arise when the overtaking ship will pass to port of the vessel it is overtaking and not to starboard. Hence at sea the overtaken vessel is required to maintain its previous course, at any rate until a collision is imminent, for to do otherwise might produce confusion and help to cause a collision.
While the "St. Rognvald" was approaching the "Boy Andrew" in order to pass her as above described, and when the stem of the former was nearly but not quite level with the stern of the "Boy Andrew", the latter made a move to starboard, which suddenly developed into a swerve hard astarboard. Counsel for the appellants before us endeavoured to convince us that what happened was merely a "yaw" of the "Boy Andrew" of the sort which was caused to this comparatively small vessel of slight draught owing to the opposition of wind and tide. In such circumstances the bows of the drifter would naturally "yaw" from side to side, and the course she was pursuing could only be maintained by constant helm action to neutralise such "yaws". The House was advised by the two nautical assessors who were assisting us in matters of navigation that if the "Boy Andrew", having regard to her draught, size and speed, was being properly kept as far as could be on her course, with the then state of wind, sea and tide, her bows would not be diverted by "yawing" from either side of the course she was endeavouring to steer by more than 25 feet from the middle line. It is quite evident from the evidence in the case that what occurred to the drifter immediately before the collision was a much more serious change of direction. The Captain of the "St. Rognvald" said that he noticed a slight movement to starboard on the part of the "Boy Andrew" and at first thought she might be getting nearer in order to hail his ship or deliver some message, but he went on to say that this slight manoeuvre "developed very suddenly into a sudden swerve or hard astarboard, and as soon as that happened I gave the order to the helmsman 'Hard astarboard'", and rang to stop the engines. Mr. Mullay, the pilot on board the Norwegian vessel, entirely confirms this, for, looking back, he had seen the "Boy Andrew" (which was then fine on his starboard quarter) "pitching and sheering about a little", as a small craft in such circumstances might be expected to do, when he observed her taking this sudden turn to starboard, and formed the conclusion (which he expressed to the Captain of the "Sverre Nergaard") that "this little fellow is going out of the channel". The cause of this sudden and unexpected move of the "Boy Andrew" remains a mystery, for when the "St. Rognvald" collided with her, the lamentable consequence was that every one of the 13 men on board the drifter was drowned. There was evidence that the steering gear of the drifter had been inspected and overhauled a month before the collision, and there is no material in the evidence to show whether this fatal movement by the "Boy Andrew" was intentional or accidental. It was, of course, on the face of it, a breach of Article 21, and in the absence of any evidence pointing to any other conclusion, must be regarded as a negligent breach of the ordinary rules of proper navigation which caused, in whole or in part, the damage resulting from the collision. Both Lord Keith, who tried the case, and the First Division of the Court of Session (Lord President Normand, with Lords Moncrieff, Carmont, and Russell) have held the "Boy Andrew" to blame for causing the disaster, and I agree with Lord Normand in his view that "in the absence of any reasonable explanation, I have no doubt that the Lord Ordinary was correct in finding that the navigation of those in charge of the 'Boy Andrew' was grossly in fault".
The matter on which Lord Keith and the Court of Session differed was as to whether the action of the "St. Rognvald" should also be regarded as a cause of the collision, so that both ships were to blame. Lord Keith thought this was the case, but Lord Normand and his colleagues took a different view. The point is a fine one, because both the Courts in Scotland adopted the advice of their nautical expert that the course steered by the "St. Rognvald" was faulty in that she was aiming to pass the "Boy Andrew" too close. Our own nautical advisers take the same view. The House put to them the following question:
"Please put out of your minds that an accident did happen in this case and advise us whether, when the 'Boy Andrew' was following its course in the south band of the swept channel and the 'St. Rognvald' was on a parallel course to the south of her, it was good seamanship in the circumstances for the latter to steer to pass the former at 100 feet".
The answer was:
"We are agreed that it was not good seamanship in the circumstances".
I understand this to mean that before attempting to pass, the "St. Rognvald" should have starboarded so as to leave a wider berth between herself and the drifter, both in order to reduce the risk if the "Boy Andrew" happened to move somewhat nearer, and also to give the "St. Rognvald" more time to avoid a collision if a danger of this sort presented itself. The Master of the "St. Rognvald" admitted in his evidence that there would have been no accident if the lateral distance had been 200 feet.
The ground on which Lord President Normand and his colleagues held that the "St. Rognvald", though at fault in steering a course so close to that of the "Boy Andrew", was not to be regarded as partly responsible for the collision was that they considered this fault as being merely a causa sine qua non, and not as contributing to the disaster. If indeed the navigation of the "St. Rognvald" did not operate as a cause of the collision, then, of course, the owners of that vessel are free from liability, however faulty the conduct of their vessel may have been. Negligence, whether on land or at sea, does not constitute a good cause of action unless it is a cause of the damage that occurs as the result of it. Lord Normand considered that the situation was analogous to that dealt with in the case of Davies v. Mann (1842) 10 M. & W. 546. In that famous case, the defendant's servant, by driving his waggon negligently along a highway, ran over and injured a donkey belonging to the plaintiff, which the latter had...
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