Cayzer, Irvine, and Company v The Carron Company: The Margaret

MARITIME LAW CASES. 371 H. OF L.] CAYZER, IRVINE, AND CO. v. THE CARRON COMPANY. [H. OF L. HOUSE OF LORDS. July 25,29,31, and Aug. 1, 1844. (Before Lords Blackburn, Watson, and Fitzgerald.) Cayzer, Irvine, and Co. v. The Garrob Company : The Margaret. (a) ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND. Collision - Contributory negligence - Thames Conservancy Rule No. 23 - Merchant Shipping Act 1873 (36 & 37 Vict, c 85), 8.17. Where a ship has infringed a rule of navigation which it not within sect. 17 of the Merchant Shipping Act 1873 - he will not he held to blame for a subsequent collision, unlets it be shown that her disobedience was one of the proximate causes of such collision. Rule 23 of the Thames Conservancy Rules provides that " steam-vessels navigating against the tide shall, before rounding " certain points," ease their engines and wait until any other vessels rounding the point with the tide have passed clear." A collision occurred off Blackwall Point, between a vessel proceeding down the river against the tide and one coming up the river with the tide It was alleged that the former had not complied - with the above rule. Held (reversing the judgment of the court below), that, assuming that she had disobeyed the rule, she could not be held to blame for the collision, it appearing to have been caused solely by the reckless navigation of the other vessel, and such rule not being one of the regulations for preventing collisions within the meaning of sect. 17 of the Merchant Shipping Act 1873. The above rule u not confined to the seaward side of a line drawn from Blackwall Point to Bow Creek. This was an appeal from a judgment of the Court of Appeal (Brett, M.R., Baggallay and Lindley, L.JJ.), reported in 5 Asp. Mar. Law Gas. 204, 50 L. T. Rep. N. 8.447, and 9 P. Div. 47, who had varied a judgment; of the judge of the Admiralty Division (Butt, J.) reported in 5 Asp. Mar. Law Gas. 137,49 L. T. Sep. N. S. 332, and 8 P. Div. 126. The action was brought by the appellants, as owners of the steamship Clan Sinclair, against the respondents, as owners of the steamship Margaret, in respect of a collision which occuarred off Blackwall Point, in the river Thames, under circumstances which are folly set out in the reports in the Courts below. Butt, J. held that the collision had been caused by the reckless navigation of the Margaret, and pronounced her solely to blame, but on appeal the Court of Appeal held the Clan Sinclair partly to blame, in not having complied with rale 23 of the Thames Conservancy Rules (set out above), by easing her engines and waiting, and varied the decree accordingly. The owners of the Clan Sinclair appealed. C. Russell, Q.C., Myburgh, Q.C., and Hollams appeared for the appellants; Webster, Q.C., C. Halt, Q.C., and Dr. Philli-more, for the respondents. The arguments appear sufficiently from the judgments of their Lordships. The following cases were cited or referred to: The Libra, 4 Asp. Mar. Law Cm. 439 ; 6 P. Div. 139; 45 L.T. Rep.N.S.161; The Khedive, 5 App. Cas. 876; 43 L. T. Bsp. X. S. 610: 4 Asp. Mar. Law Cas. 360; The Magnet, 2 Asp. Mar. Law Cm. 478; L. Rep. 4 A. & E. 417; 32 L. T. Rep. N. S. 7.28; The Fanny M. Carvill, 2 Aap. Mar. Law Cm. 565 ; 32 L.T. Rep.N.S.646; The Harten, 9 P. Div. 44; 5 Asp. Mar. Law Cas. 213; 50L.T. Rep.N.S.370; The Sisters, 3 Asp. Mar. Law Cas. 122; 1 P. Div. 117; 34L. T.Rep.N.S.338; Dowell. General Steam Navigation Company, 5 E. AB. 185; Davies v. Mann, 10 M. and W. 546; Tug v. Warman, 5 C. B. N. 8. 573; Spaight v. Tedcastle, 4 Asp.'Mai. Law. Cas. 406; 6 App. Cas. 217; 44 L. T. Sep. K. S. 589; Radley v. London and North-Western Railway Company, 1 App. Cas. 754; 35 L. T. Rep. N. S. 637; Hay t. Le Neve, 2 Shaw So. App. 395 -. The Fenham, L. Rep. 3 P. C. 212; 3 Mar. Law Cas. O. S. 484; L. T. fiep. N. S. 329. Myburgh, Q.C. was heard in reply. As the conclusion of the arguments their Lordships gave judgment as follows -. - Lord Blackburn. - My Lords: In this case it appears to me that the principal point to which we have to direct our attention is the question of fact which is involved, for I think that it is more a question of fact than a question of law. The first thing to be considered is, what is the - waning of rule 23 of the rules and bye-laws for the regulation of the navigation of the river Thames? That rule is.- " Steam-vessels navigating against the tide, shall, before rounding the following points " (including Blackwall Point) " ease their engines, and wait until any other vessels rounding the point with the tide have passed clear." I may first of all mention a point not raised below, on which the House did not require that any answer should be given by the respondents' counsel; it was this: The rules for the navigation of the Thames down to rule 16 apply, some of them to all the navigation of the river, and some only to navigation of particular parts of the river. After rale 16 there comes this heading: "Bye-laws and rules regulating the navigation of the river between Yantlet Creek and a line drawn from Blackwall Point to Bow Greek." How, the effect of that heading no doubt is to say that the rules which immediately follow it, including rule 23, primd facie are only to apply to vessels when they are lower down than the lino drawn from Blackwell Point to Bow Creek. A glance at the chart will show that this line would exclude the greater part of what, in my view of the words, is to be taken as being Blackwall Point, which the vessels are to round. The Clam Sinclair, although rounding Blackwall Point, never was in fact to the seaward Bide of the line from Black-wall Point to Bow Greek, and therefore it was contended that rule 23 did not apply; bat X think that it is impossible to put that construction upon rule 23, which in express terms says that" steam-vessels navigating against the tide shall, before roending Blackwell Point, ease their angines and wait;" and it is impossible, I think, to construe that as meaning that Blackwell Point is to be excluded from that rule. It is a clumsy mode of expressing the intention of the framera of the rule, and they should have provided against it; but they must have intended that the heading 372 MARITIME LAW CASES. H. OF L.] CAYZER, IRVINE, AND CO. v. THE CARRON COMPANY. [H. OF L. confining these rales to below a line drawn...