Compagnie des Forges, Company, d'Home-court v Gibson & Company ‘Eidsvaag’ v ‘Gala.’
| Jurisdiction | Scotland |
| Judgment Date | 04 February 1920 |
| Docket Number | No. 36. |
| Date | 04 February 1920 |
| Court | Court of Session |
Lord Sands, Lord President, Lord Justice-Clerk, Lord Dundas, Lord Salvesen, Lord Mackenzie, Lord Guthrie, Lord Cullen.
ShipCollisionRegulations for Preventing Collisions at Sea, Articles 19, 21Keep Course and Speed RuleDuty of holding-on vessel when collision imminentVessels on crossing courses.
The Regulations for Preventing Collisions at Sea provide, Art. 21 Where by any of these Rules one of two vessels is to keep out of the way, the other shall keep her course and speed. Note.When in consequence of thick weather or other causes such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision.
Where a collision has occurred between two vessels following upon a change of course or speed by the holding-on vessel, the latter will not be held to have been in fault merely because the collision might not have occurred had she taken no action. The test to be applied in judging her action is whether, having regard to the whole circumstances of the case, a moment had arrived at which, in the view of a skilled and prudent seaman, it appeared that a collision could not be averted without action on her part.
The master of the s.s. Gala, at midnight, sighted a dim light about a mile or a mile and a half distant bearing 3/4 of a point on his port bow, which, in the hazy weather prevailing, he took for the light of a buoy marking shallow water. Accordingly he altered his course 3 points to starboard; but shortly afterwards he made out the light to be a green light, and he then realised that it was the starboard light of a crossing vessel, whose duty it was, under Art. 19 of the Regulations, to keep out of his way. He accordingly continued his course and speed in the expectation that the other vessel, the s.s. Eidsvaag, would alter her course to starboard and pass astern. When the vessels had approached to a distance of some 500 feet without any alteration of course or speed of the Eidsvaag, the master of the Gala put his helm hard to port, giving the appropriate signal. The Eidsvaag signalled that she had starboarded her helm, but, before the helm took effect, the Gala struck her abaft the bridge.
In an action of damages at the instance of the Eidsvaag it was contended that the Gala was in fault, in respect that she had not kept her course and speed as directed by Art. 21 of the Regulations.
Held by a majority of a Court of seven Judges (rev. judgment of Lord Sands) that the Gala was not in fault, the situation being such as to justify a skilled and competent navigator in taking action under the Note to Art. 21.
ProcessRecordPursuer's duty to state his case on recordAdoption at proof of new ground of actionShipCollisionAverments on record that vessels were passingAdoption at proof of view that vessels were crossing.
In an action of damages in respect of a collision between the Eidsvaag and the Gala, the pursuers' case upon record was that the vessels were on opposite and parallel courses, and would have passed in safety had not the defenders' vessel, the Gala, without justification, ported her helm and run into the Eidsvaag. At the proof the pursuers' case that the vessels were passing broke down on their own evidence, and in their cross-examination of the defenders' witnesses they adopted the defenders' view that the vessels were crossing vessels, and they then developed a case that the fault of the Gala consisted in her having failed to keep her course as required by Art. 21 of the Regulations for Preventing Collisions at Sea.
Opinion (per the Lord President, Lord Guthrie, and Lord Cullen) that, even if it had been established that the Gala had contravened Art. 21, judgment could not have been pronounced against her, looking to the case presented by the pursuers upon their record and in their evidence.
Opinions contra per the Lord Justice-Clerk and Lord Mackenzie.
On 21st August 1918 the Compagnie des Forges et Acieries de la Marine et d'Homecourt, Paris, consignees of a cargo of coal on the s.s. Eidsvaag, and Messrs Boyd, Jameson, & Young, W.S., Leith, their mandataries, brought an action against Messrs George Gibson & Company, Limited, registered owners of the s.s. Gala of Leith, for damages for the loss of the cargo of coal through the sinking of the Eidsvaag after being in collision with the Gala in the North Sea near Flamborough Head on the early morning of 3rd February 1918.
The following, inter alia, were the averments of parties on record:(Cond. 3) The s.s. Eidsvaag left the Tyne on her voyage to Rouen at 8 a.m. on Saturday 2nd February. All went well till shortly after midnight of that date, when the Eidsvaag was sailing on a course S.S.E. 1/2 E. at a slow and reduced speed in view of the weather conditions as aftermentioned. The captain of the Eidsvaag and the second officer were together on the bridge, and an able seaman was at the wheel. The night was very dark and somewhat hazy, with occasional showers of rain. There was a light breeze from the south-east. About twenty minutes after midnight on the morning of 3rd February the master of the Eidsvaag observed a ship's light about three points on his starboard bow, and on examining same with his night glasses he made out the masthead light and also the green light of a vessel, which afterwards turned out to be the Gala, proceeding on an opposite and parallel course to his, and at a distance not exceeding half a mile. The Eidsvaag continued her course, and if the Gala had also continued her course, as she ought to have done, both vessels would have passed clear of each other on the starboard side. The Eidsvaag had both her side lights exhibited, and they were burning brightly, and if the Gala had been keeping a proper look-out she should have seen the Eidsvaag's green light on her own starboard bow at a distance of at least half a mile. Shortly after the master of the Eidsvaag had picked up the masthead and green light of the Gala the Gala suddenly altered her course to starboard under a port helm and exhibited her red light to the Eidsvaag but failed to give any sound signal of such alteration to the Eidsvaag. The Gala was then not more than two cable lengths from the Eidsvaag, and was approaching her at a high speed, and was heading for her starboard side. The Gala being in ballast, and with wind and tide behind her, was travelling very fast. The master of the Eidsvaag at once gave two short blasts of his whistle and ordered the helm hard-a-starboard as the only manuvre which afforded a chance of avoiding a collision. The Gala did not reply to the Eidsvaag's two blast signal which the master of the Eidsvaag accordingly repeated, and almost immediately after he had given his second two blast signal the Gala crashed into the starboard side of the Eidsvaag about amidships, her stem penetrating nearly to No. 2 hatch. With reference to statements in answer, it is believed to be true that those in charge of the Gala imagined that the light of the Eidsvaag was a light marking the Smithic Buoy. Denied that the Gala altered her course by porting her helm when a mile or so from the Eidsvaag. Explained that she did so when not more than 21/2 cables off. Quoad ultra, the statements in answer, in so far as they do not coincide herewith, are denied. (Ans. 3) Denied. Explained that the s.s. Gala, which was on a voyage in ballast from Dunkirk to Leith, was, on the early morning of 3rd February 1918, near Flamborough Head, when those on board of her, who were, in the slightly hazy weather then prevailing, looking out for North Smithic Buoy, which marks the eastern limit of the shallow water in the neighbourhood of the Head, observed a dim light very low down in the water distant from about a mile to a mile and a half, and bearing about 3/4 of a point on their port bow. The master examined the light through glasses, and came to the conclusion from its position that it was the North Smithic Buoy Light. As the water is dangerously shallow to the westward of this buoy, the helm of the s.s. Gala was ported, and after her head had gone off about 3 points she was steadied on the course N. by E. 1/2 E. (compass). The bearing of the said light, thought to be on the North Smithic Buoy, was then taken, and it was found to be bearing N. by W. 1/2 W. and still distant between one and one and a half miles. The s.s. Gala proceeded for a short time until she was about a mile distant from the light in question, when the master, who was watching it closely through his glasses, perceived that it was not altering its bearing as he had expected, and made out that it was the green light of a vessel which was not showing any masthead light, and which was, it is believed and averred, proceeding with her side lights reduced in strength. As this vessel and the s.s. Gala were crossing vessels, and the former had the latter on her starboard bow, the master of the s.s. Gala maintained his course and speed. The two vessels continued to approach each other without any appreciable alteration of bearing until the master of the s.s. Gala saw that the other vessel, which turned out to be the s.s. Eidsvaag, was not keeping out of the s.s. Gala's way by porting her helm and passing under the Gala's stern, as it was her duty to do, and that it would be necessary for him to take action if a collision was to be avoided. He accordingly put his helm hard-a-port and at the same time gave one short blast on the whistle. The Eidsvaag replied to this signal with two short blasts. The s.s. Gala immediately repeated the one short blast signal, to which the Eidsvaag again replied with two short blasts. The Eidsvaag, however, did not starboard her helm as she had signalled she was about to do, but continued to cross the course of the Gala, and eventually, notwithstanding that shortly before the...
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