Firth Shipping Company v Earl of Morton's Trustees
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1937 |
| Docket Number | No. 13. |
| Date | 17 December 1937 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Keith.
HarbourFree portDuty of grantee of free port containing pier to expend harbour dues in providing safe berth at pierDuty to warn shipping where dues insufficient to maintain berth in safe condition
A landed proprietor was the grantee of a right of port and harbour in a small harbour adjoining his lands. The harbour contained a pier, and the grantee collected dues from shippers loading at the pier. Owing to the shallowness of the water at the pier, shippers loading there had to lie on the bottom when the tide was out. A ship lying at the berth while engaged in loading suffered damage, when she took the ground, in consequence of the existence of a ridge of sand across the berth. This ridge had been scooped up by the propellers of previous ships, and had existed for some time. It constituted a danger to a ship grounding at the berth.
The shipowners having sued the grantee of the harbour for the damage sustained by the ship, the defender maintained that his duty to maintain the harbour was limited to the expenditure thereon of any sums received by him as harbour dues. He further maintained that the amount of these dues, the free surplus of which in his hands at the date of the accident was about 23, was insufficient to provide for a service of inspection and maintenance of the berth.
Held that the defender was liable for the damage sustained by the ship, in respect thatwhile he was not bound to expend more upon maintenance of the harbour than he received in duesif the dues were insufficient to provide for adequate inspection and maintenance, it became his duty to warn shipping, by notice on the pier or otherwise, that such inspection and maintenance had not been carried out.
Observed that the duties and liabilities of a grantee of port and harbour might be different where the harbour was left in its natural condition, without the addition of a pier or other works inviting the use of the harbour by ships.
The Firth Shipping Company, Limited, shipowners, Newcastle-on-Tyne, brought an action against the Honourable Charles William Sholto Watson Douglas and another, the trustees acting under a deed of trust granted by the late Earl of Morton, concluding for payment of 400, subsequently increased by amendment to 520. This sum represented the damage averred to have been suffered by the pursuers' steamship "Moray Firth" while berthed in the harbour of Aberdour.
The circumstances of the case, as established at a proof, (which are fully narrated in the opinions of the Lord Ordinary and Lord Carmont), were shortly as follows:The defenders are grantees of the right of port and harbour of Aberdour. The harbour is a small one, and is not much used by shipping. It contains a pier, and the depth is such that at low water the berth at the seaward end of the pier is dry. On 21st May 1935 the pursuers' steamship "Moray Firth" arrived at Aberdour under charter to load a cargo of stone there. She berthed at the end of the pier about 5.30 a.m., at high water. She began to load about 8 a.m., and she took the ground as the tide fell. She was constructed to do this in normal circumstances without damage. About 9.30 a.m., when she was lying on the bottom, she showed signs of straining, and loading was stopped. When the bottom became visible it was found that a ridge of sand was lying across the berth, causing the ends of the ship's keel to overhang without support. This ridge was not a natural feature of the ground. It was agreed by both parties that it had been caused by the action of a ship's propeller scooping up the sand at or about the berth. It was held to be proved that the ridge was not caused by the "Moray Firth's" propeller, and that it must have been in existence for at least three weeks, and probably longer. It was conceded that the ridge constituted a danger to a ship lying at the berth. The defenders, as grantees of the right of port and harbour, collected dues from shippers loading at the pier. These dues were of small amount, and they had in the past been partly expended on repairs to the pier. The surplus of dues for recent years in the defenders' hands on 21st May 1935 amounted to about 23.
The pursuers pleaded, inter alia:"(1) The pursuers, having suffered loss, injury and damage through the fault and negligence of the defenders, are entitled to reparation therefor."
On 14th July 1937 the Lord Ordinary (Keith), after a proof, sustained the first plea in law for the pursuers and granted decree for payment of 475.
At advising on 17th December 1937,
LORD CARMONT.The pursuers in this case are the owners of the steamship "Moray Firth." The defenders, the trustees of the Earl
of Morton, are the grantees of the right of the port and harbour of Aberdour in Fife, and they are proprietors of the lands and estates of Aberdour, including a pier in the said harbour. This pier, which is on the west side of the harbour, is an old artificial structure built of stone. The defenders demand and receive payment of dues on all cargoes landed and loaded at the pier. The s.s. "Moray Firth," which was on charter, made a voyage to Aberdour, there to load a cargo of stone. The harbour consists of a small inlet lying between a headland on the east and the foresaid pier on the west. The pier is shaped like a top boot. The leg is in a south-south-east direction, the foot lying north and south, which gives the sole of the boot an east frontage. The Dour Burn flows into the natural inlet, and the bottom is part of the firm sandy bed of the River ForthThe "Moray Firth" arrived off Aberdour about 4.30a.m. on 21st May 1935. The defenders have no harbour-master or other servant in attendance at the harbour. Those in charge of the navigation of the "Moray Firth" observed that the end of the pier (the sole of the boot above referred to) showed signs of having been previously used as a stone loading berth, and the "Moray Firth" was brought alongside the end of the pier with her port side to the quay, about 5.30 a.m., which was just about high water. It was the time of spring tides, and there was a depth of about 14 feet of water at the berth in question. The "Moray Firth" drew about 10 feet 6 inches aft and about 4 feet 6 inches forward. The shipper came down to the pier about 7 a.m., and before 8 loading had begun. When the tide fell the vessel took the ground. She was constructed to do so, and had frequently taken the ground elsewhere without sustaining any damage. About 9.30 a.m. on the same day, when the water had nearly left the vessel, the vessel was found to be straining and was being damaged. Loading was suspended. On examining the bottom of the berth, it was found not to be level, and in particular that there was a ridge of sand at right angles across the berth. This ridge or hump was not a natural feature of the ground, and it constituted a danger to the ship, as it caused part of the vessel's keel to overhang without support. The hump had been formed from the sand which had been scooped out of a hollow made somewhat to seaward, and the parties are agreed that this displacing of sand, and its consequent heaping up, was due to the action of a ship's propeller. About 20 or 25 tons of material had been displaced from the hollow and thrown up elsewhere. The pursuers' vessel sustained damage amounting to 475, and they sued the defenders to make good their loss, on the allegation that it had been caused through the defenders' negligence. The pursuers maintained that the berth was a foul one, that it had been in a defective condition for at least a month, and that the defect was visible on several occasions before the arrival of the "Moray Firth," which had an implied invitation to come to the harbour. The pursuers contended that the defective condition of the berth was easily remedied, but that, if for any reason the defenders were unable to put the berth in proper order, they were bound to put up a notice board, or otherwise give notice either intimating the dangerous state of matters at the place in question, or warning vessels that they must look out for their own safety. The defenders maintained that they were not liable.
The Lord Ordinary found that...
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