Cormack v Dundee Harbour Trustees. The "Colinton."
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1929 |
| Docket Number | No. 11. |
| Date | 22 November 1929 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Ld. Moncrieff.
HarbourDuties and liabilities of harbour trusteesNegligenceDefect in berth in tidal riverProgressive accumulation of debris from sewer in bottom of berthVessel necessarily taking ground on fall of tideDuty to take precautions for safety of berth.
In an action of damages brought by a shipowner against harbour trustees for injuries sustained by his ship through being given a foul berth in their harbour, it was established that the berth in question was in a tidal river; that debris discharged into the berth from a sewer formed a mound on the bottom of the berth which was a danger to ships taking the ground at the ebb of the tide; that when dredging the berth the defenders, in view of this tendency, made it their practice to dredge at the locus of the mound to a greater depth than at other parts of the berth, but that no regular system of examination existed; that the berth had in fact been dredged some three weeks before the ship arrived, but that no special precaution had been taken to ascertain its condition before assigning her to it.
Held that the defenders had failed to establish that they had taken reasonable care to make sure that the berth should be in a safe condition for vessels using it; and accordingly that, as the ship had been injured owing to the condition of the berth, the defenders were liable for the damage occasioned by their negligence.
On 29th March 1928 James Cormack, shipowner, Leith, the registered owner of the s.s. "Colinton" of Leith, brought an action against the Trustees of the Harbour of Dundee, incorporated by Act of Parliament, in which he claimed payment of 5000 in name of damage which he alleged the "Colinton" had sustained while berthed in the harbour of Dundee.
The pursuer averred that the "Colinton," upon her arrival on 10th October 1927, fully laden, in the River Tay, which is a tidal river, was assigned a berth on the river front; that the berth in question was a foul berth with an uneven bottom; and that in the course of discharge the vessel grounded at low tide on a hard mound in the berth, and received internal damage. He averred, further, that it was the duty of the defenders to take reasonable care to see that the bottom of the berth was reasonably safe for the vessel to rest on, and, if it was not safe, to assign her to another and safe berth; that the bottom was not safe for the ship to rest on, as she must do at low tide; that the defenders had failed to make any reasonable investigation of the state of the bottom of the berth; and that the damage sustained by the ship was due to the defenders' negligence.
The defenders denied liability, and pleaded, inter alia:"(3) The Colinton not having suffered any damage for which the defenders are responsible while within the defenders' harbour, the defenders should be assoilzied. (4) The injury not having been sustained through the fault or negligence of the defenders, they are entitled to absolvitor."
A proof was allowed and led, when the following facts bearing upon the question of negligence, the only subject-matter of this report, were established:About midway along the face of the berth, a sewer, which served one-fifth of Dundee, discharged into the River Tay. From soundings taken at the berth over many years, it was known to the defenders that debris discharged by this sewer tended to accumulate, and form with considerable rapidity into a mound. In view of this tendency of the debris to accumulate, the defenders had made it their practice to dredge one foot lower at the locus of the mound than at other parts of the berth, but they had no regular system of examination of the berth. It had in fact been dredged in September 1927. There had, however, been heavy rains in September after the dredging had been completed, and building operations on a large scale were being conducted in that part of Dundee which was served by the sewer. No soundings had been taken before the "Colinton" was allowed to enter the berth; but no evidence was adduced to show that, prior to the accident, the mound had increased at an unprecedented rate.
On 8th February 1929 the Lord Ordinary (Moncrieff) decerned against the defenders for payment to the pursuer of 3033, 11s. 8d.
At advising on 22nd November 1929,
LORD JUSTICE-CLERK (Alness).[After narrating the facts, and stating his conclusion that the pursuer had proved that the damage which the "Colinton" was alleged to have suffered in Dundee Harbour had been caused by the hard and uneven bottom of the berth which had been allotted to her]The second question in the case is whether, assuming the "Colinton" suffered damage in the berth assigned to her at the harbour in Dundee by the defenders, that damage is attributable to their negligence.
In approaching consideration of this question I desire to make two general observations. The first is thisthat the obligation upon a harbour authority, which, for purposes of profit, provide a berth for an incoming ship, although it falls short of insurance, is obviously and properly not a light one. The second is that, while a harbour authority may be deemed to know all about the condition of every berth in their harbour at every tide, an incoming ship knows nothing, and has no duty to know anything, about these matters. It is true that in this case the "Colinton" knew of the berth which she occupied, because she had occupied it on a previous occasion, and had requested that it should be allotted to her on the occasion in question; but of the precise condition of the berth and its bottom she did not know, and was not bound to know, anything.
Now, in finding a reply to the question which I have formulated, I am, on this branch of the case, entitled to make these assumptions(1) that the "Colinton" suffered damage at Dundee on 10th October 1927; (2) that that damage was caused by a foul berth; (3) that the berth was foul because of the presence in it of a large mound of hard material
which was discharged from an adjacent sewer; (4) that the defenders knew of the existence of the sewer, and knew that it might discharge hard material which might prove dangerous to ships; (5) that their servants knew that in fact the sewer discharged such material; and (6) that the defenders took no steps by soundings or otherwise to ascertain how much material had accumulated in the berth, and of what quality it was, before they assigned that berth to the "Colinton" on 10th October 1927.
It will thus be seen that the duty which lay upon the defenders was a duty created by the very special circumstances obtaining in and near the berth. The presence of, and the discharge from, the sewer were the special circumstances which raised a correspondingly special duty on the part of the defenders. It is idle for them to contend that there is neither averment nor evidence as to how other harbour authorities discharge the duties which lie upon them. The truth is that this berth presented a special problem, which demanded special treatment.
Should the defenders, then, have been aware...
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