Ellerman Lines v Dundee Harbour Trustees
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1920 |
| Date | 27 November 1920 |
| Docket Number | No. 18. |
| Court | Court of Session |
Lord Blackburn, Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
ShipCollisionNegligence of masterShip striking submerged wreck in navigable channelWreck marked on master's chart with two lighted buoysWreck actually buoyed with one unlighted buoyFailure to observe buoyInsufficient look-outInference from not seeing two buoys that wreck had been removed.
A steamship arrived about midnight at the entrance to a navigable channel leading to a harbour, and anchored for the night. The channel was not within a compulsory pilotage area, but, as the master had not navigated the channel before, he signalled for a pilot on arrival, and again early next morning. By 10 o'clock in the morning no pilot had arrived, and the master, as he did not wish to lose another tide and as there was danger from drifting mines, decided to proceed without a pilot. Accordingly he weighed anchor and proceeded up the channel, the weather being clear.
His chart, which had been corrected down to three months before, showed a wreck lying submerged a short distance up the channel and marked with two green, conical, lighted wreck-buoys. Since the date of the corrections on the chart the buoying of the wreck had been changed, and on the morning in question it was buoyed with one green, can-shaped, unlighted wreck-buoy. The buoy, which was painted with the word wreck, was laid midway between the site of the two buoys shown on the chart. It rose about five feet above the water, and was visible without glasses at least a mile away.
From his anchorage at night the master looked for the lights of the two buoys shown on his chart, and again in the morning he looked for these buoys. As they were not there, and as he failed to observe the single unlighted buoy, he drew the inference that the wreck had been dispersed since the date of the markings on his chart, and steered a course which took his ship directly across the position of the wreck as shown on the chart, and the ship struck the wreck and was damaged. An ordinary general look-out was being kept by the chief officer and the carpenter, who were busy with other duties, and the buoy was seen by both of them. Neither of them knew of the existence of a wreck in the neighbourhood, and they did not observe the word wreck on the buoy, or report the buoy to the master.
In an action of damages by the owners of the ship against the trustees of the harbour, held, after a proof (rev. judgment of Lord Blackburn), that the accident was due to the fault of the master (1) in failing to keep a proper look-out; and (2) in improperly assuming that the wreck had been dispersed and steering over its position as shown on his chart; and defenders assoilzied.
HarbourDuty of harbour trusteesBuoying wreck in fairwayMethod and adequacy of buoyingEffect of altering number and type of buoysWreck-buoy as warning to mariners or as indication of direction to be takenHarbour trustees acting with knowledge of AdmiraltyResponsibility of Admiralty.
Opinion, per the Lord President, Lord Mackenzie, and Lord Cullen, that, by maritime practice and convention, a wreck-marking buoy was only a warning to mariners of the proximity of a wreck, and not, except with reference to a chart showing the wreck, an indication of the course which ships should take; and further, that a single unlighted wreck-buoy was, at any rate in daylight, an adequate warning of a wreck, even to shipmasters whose charts showed the wreck marked with two lighted buoys.
Opinion per the Lord President, Lord Mackenzie, and Lord Cullen, that, in order to relieve harbour trustees from liability for having buoyed a wreck in a particular manner by shifting the responsibility on to the Admiralty, it would be necessary for the trustees to prove an express order by the naval authorities as to the manner of buoying, and not merely their knowledge of, and acquiescence in, the method adopted by the trustees.
HarbourDuty of harbour trusteesPilotageProvision of licensed pilots in non-compulsory areaStations prescribed to pilots by bye-laws made by trusteesDuty to enforce bye-lawsDuty to provide steam or motor pilot-boats.
A body of harbour trustees maintained a service of licensed pilots for navigating ships up a channel which was not within a compulsory pilotage area. The trustees made bye-laws which, inter alia, required the pilots at all times to be on the look-out for signals from vessels entering the channel, and to proceed with all dispatch to take charge of such vessels, and further required the pilot cutters to keep as near to the entrance of the channel as practicable, both by day and night. The bye-laws were published, and in the North Sea Pilot, a publication circulating among mariners, it was stated that the pilot-vessel, unless driven in by stress of weather, was always at anchor or under weigh near the buoy at the entrance to the channel. During the war the pilots, owing to maritime risks, had been accustomed to lie for shelter behind a headland about 4 sea miles above the entrance to the channel. After the armistice the harbour trustees issued definite instructions to the pilots to keep their station as required by the bye-laws. Five days later the pilots were driven by stress of weather to shelter for the night behind the headland. A ship arrived off the entrance to the channel about midnight the same night, and the master, who had never entered the channel before but was in possession of the North Sea Pilot, signalled for a pilot. The probable time of the ship's arrival had been previously reported to the trustees. As no pilot came she anchored for the night, and early next morning again signalled for a pilot, also sending a wireless message which did not reach the trustees until 10 o'clock. The signal was observed by the pilot about 9 o'clock at about seven miles distance, and he at once proceeded in his cutter in the direction of the ship, but, owing to adverse tide and lack of wind, could only make slow progress. The master of the ship, not wishing to lose another tide and being in danger from drifting mines, decided not to wait longer, and entered the channel without a pilot. Shortly after she started on her course the ship struck a submerged wreck and was damaged.
Opinions per the Lord President, Lord Mackenzie, and Lord Cullen, that harbour trustees who publicly offered the services of licensed pilots and professed to supply them at a particular station would be responsible for damage which was the natural and reasonable consequence of their acquiescence in the desertion of that station by the pilots, but that, in the circumstances, no such breach of duty was proved.
Opinions further, that the harbour trustees were not in fault in failing to supply steam or motor boats for the use of the pilots.
On 17th July 1919 the Ellerman Lines, Limited, owners of the s.s. City of Naples, brought an action against the Trustees of the Harbour of Dundee concluding for 250,000 as damages sustained by the City of Naples owing to her striking a submerged wreck in the channel leading to Dundee Harbour.
The defenders denied fault, and averred that the accident was caused, or at least materially contributed to, by the negligent navigation of the master of the ship.
The following narrative of the facts of the case is taken from the opinion of the Lord President:
The City of Naples, bound for Dundee, arrived off the entrance to the Firth of Tay on the morning of 15th April 1919, and anchored about 3 sea miles to the S.E. of the Fairway Buoy at 12.37 a.m., apparent ship's time, or 1.37 a.m. British summer time.
The following local circumstances appear from the Admiralty chart which was in the master's hands, and are necessary to the understanding of the incidents which led to the present action. The entrance to the Firth of Tay is opposite Buddon Ness, and is approached from the sea by a buoyed fairway, whose general direction is E.S.E. from Buddon Ness but inclining more to the E. as it proceeds, until, about 11/2 sea miles from Buddon Ness, it turns due E. The buoys employed to indicate the limits of the fairway are black can buoys to the southward, and red conical buoys to the northward. The furthest seaward pair of black and red buoys defines the entrance into the buoyed fairway from the sea. The entrance is 3/5ths of a sea mile (3400 feet) wide. Its middle point is distant from Buddon Ness 3 sea miles to the E.S.E., and is on the projection of a line known as the line of leading lights, drawn through the high and low lights of Buddon Ness. On, or just to the northward of, the projection of this same line to seaward, at a point 3/4ths of a sea mile from the middle point of the entrance into the buoyed fairway, there is placed a lighted bell buoy, painted in black and red horizontal stripes. This is what is known as the Fairway Buoy, or (on the chart) the Tay River Buoy. It will be seen that it is situated about 33/4 sea miles E.S.E. from Buddon Ness, and therefore about 13 sea miles from the port of Dundee. It is the first sea mark which presents itself to the eye of the mariner who approaches the Firth of Tay from the sea; and, provided always that its local significance is known to him from prior experience of navigation in the estuary or from information gathered from charts or sailing directions, it is an important aid to him in finding his way to the entrance of the buoyed fairway, and so into the Firth. The bar of the Tay estuary, which connects the Gaa Sand and the Gaa Spit on the north with the Abertay Spit and the Abertay Sand on the south, crosses the buoyed fairway, a little inside the entrance, diagonally from N.E. to S.W. The minimum depths of water on the bar occur on this diagonal, 20 feet of depth south of the line of leading lights, 23 feet of depth north of it.
The master of the City of Naples had never been up the Tay to Dundee before. Pilotage is not...
To continue reading
Request your trial
-
Ellerman Lines v Dundee Harbour Trustees
...Held that, in the circumstances, the allowance made by the Auditor was sufficient, and objection repelled. (See previous reports—1921 S. C. 169, and supra, House of Lords Cases, p. 79.) On 17th July 1919 the Ellerman Lines, Limited, owners of the s.s. ‘City of Naples,’ brought an action aga......