Parker v North British Railway Company

JurisdictionScotland
Judgment Date01 July 1898
Docket NumberNo. 171.
Date01 July 1898
CourtCourt of Session (Inner House - Second Division)
Court of Session
2d Division

Ld. Stormonth-Darling, Lord Justice-Clerk, Lord Trayner, Lord Moncreiff, Lord Young.

No. 171.
Parker
and
North British Railway Co.

Ship—Harbour—Harbour-Master—Dangerous condition of Harbour—Reparation.—

A sailing ship about to enter a harbour was hailed by the harbour-master, who then gave steering orders. She stranded on a bank of sand and received injuries. Held after a proof that she was under the charge of the harbour-master from the time when he began to give orders, and that the proximate cause of the accident was fault committed by him in giving wrong steering orders, and therefore that the proprietors of the harbour, his employers, were responsible for the damage, the Lord Justice-Clerk being further of opinion that the dangerous condition of the harbour contributed to the accident.

Observed(per Lord Moncreiff) that ‘if the entrance to a harbour to which large vessels are invited to resort is kept in such a dangerous condition that even when steered by an experienced pilot they run a serious risk of taking the ground, there is much to be said for the view that the owners of the harbour are responsible when a vessel grounds, even although the pilot might, by the exercise of exceptional skill or good fortune, have been able to avoid the sandbanks.’

Ship—Pilot—Compulsory Pilotage—Responsibility for Pilot.—

The proprietors of a harbour in a compulsory pilotage district, in order that a pilot might always be at hand to bring vessels into their harbour, arranged with one of the licensed pilots to pay him a weekly sum as wages, and that he should account to them on the other hand for all the fees drawn by him as a pilot. They provided him with a pilot boat.

Opinions on the question whether these facts made them liable as employer of the pilot for fault committed by him in the course of his duties as a pilot.

On 28th March 1896, the sailing ship the ‘Genista’ of Liverpool, a vessel of 1718 tons registered tonnage went aground on a bank of sand while entering Silloth Harbour. The harbour was the property of the North British Railway Company.

Thereafter Evelyn Stuart Parker, owner of the ‘Genista,’ raised an action against the North British Railway Company for £5000 damages in respect of the injuries which she had received. The pursuer averred that when the vessel came within the jurisdiction of the harbour-master at Silloth, who was the defenders' servant, he took charge of her and gave directions as to her navigation, that his directions, instead of keeping her on the fairway, brought her head towards the jetty, and that he culpably allowed her to remain so long on a port helm that it was impossible thereafter to get her on a proper course, and that he ordered the helm to be put to starboard after it was too late to prevent her taking the ground.

Alternatively the pursuer averred that the fault was that of the pilot, James Richardson, in not taking the fairway at the proper angle, or in the proper manner, and that the defenders were responsible for him.

The pursuer stated that the defenders were also in fault in having failed—contrary to their duty to maintain the harbour in an efficient state—to remove the bank of sand on which the ‘Genista’ grounded. He averred that the bank was of great length, and that it was not properly marked, that it constituted a danger to navigation, and that the defenders were well aware that it was so, especially at certain states of the tide, and to large vessels like the ‘Genista.’

The pursuer pleaded that he was entitled to damages as concluded for, in respect that he had ‘suffered loss and damage to the extent sued for through the fault of the defenders, or of those for whom they are responsible. …’

The defenders denied that the harbour-master was in fault. They stated that the ship answered slowly to her helm, that the fairway was clear and unobstructed, and that it was the pilot's duty to bring the ‘Genista’ up to the entrance of the fairway at the pier head with her bow pointing straight up the fairway. Assuming the pilot to have failed in his duty, they stated that they were not responsible for him.

They pleaded;—(2) The pursuer's vessel having suffered no loss or damage through the fault of the defenders or those for whom they are responsible, et separatim, the defenders not being responsible for any faults of the said pilot, decree of absolvitor should be pronounced. (3) The pursuer's vessel having stranded owing to its failure to answer its helm, or its stranding having been materially contributed to through said failure, the defenders should be assoilzied.

A proof was led. The following facts were established: The ‘Genista,’ a sailing ship of 1718 tons burden, 270 feet long, and 39 feet broad, which had come from Portland, Oregon, with wheat for Silloth, arrived off Maryport at the mouth of the Solway Firth on 27th March. She then entered a district in which pilotage was compulsory for vessels from foreign ports. She took on board a pilot named Richardson, who was licensed for the Port Carlisle pilotage district. The two harbours in that district were Silloth and Annan. Gavin Mundell, the harbour-master at the date of the accident, a witness for the defenders, gave the following evidence as to Richardson's position,—‘I am one of the subcommissioners of Trinity House in connection with pilotage. There are three pilots in the Port Carlisle district. In 1896 when the stranding of the “Genista” occurred the pilots were James Richardson, Coulthard, and Kea. Richardson had nothing to do except pilot ships; that was the only work he did for the railway company. … Richardson was guaranteed a wage by the railway company, which amounted latterly to 33s. a-week. That was paid to him by the cashier at Silloth. Richardson accounted to me for the pilotage dues which he was entitled to receive, and which he received from vessels. He accounted to me not only for the pilotage dues for vessels coming into Silloth, but also for vessels going to Annan. … Cross.—Richardson, Coulthard, and Kea were under my orders. I employed them for such work as I had to do in connection with the harbour. Kea generally acted as mate of the “Solway,” and I also employed him to pilot vessels in and out of Silloth. Coulthard was also employed occasionally to pilot vessels in and out of Silloth. Richardson was employed as a pilot all over, and as a pilot only. Richardson's wages were paid just like the wages of the railway company's officials. The railway company provided the boat which he used at Maryport. Sometimes the fees which he earned came to more than his wages, and on other occasions to less. When they came to more I retained the excess, and when they came to less I made up the difference. The only three pilots in the district were in the employment of the railway company.’

On the morning of 28th March the ‘Genista’ left Maryport for Silloth in tow of a tug, another tug being afterwards attached to her quarter. She proceeded into the Solway in Richardson's charge, and got into the fairway for Silloth harbour. Vessels going into the harbour required to take a somewhat sharp turn. When the ‘Genista’ got near to the pier, Mundell, the harbour-master, who was standing on the pierhead, called out orders which were obeyed. The ‘Genista’ however ran on the bank of sand on the north side of the channel near the pier head, and received serious injuries.

There was a conflict of evidence as to the cause of the accident. The witnesses for the pursuer considered that the ‘Genista’ was under the care of the harbour-master from the time when he began to call out orders; that he kept her too long on a port helm; that he then without steadying her helm, called out, too late, to starboard the helm, with the consequence that the ‘Genista’ ran on the sandbank. On the other hand, the witnesses for the defence gave evidence that when coming into the fairway the vessel was taken by Richardson the pilot too far to the eastward, and in consequence ‘touched or smelled’ the ground on the north side of the channel or fairway, and so, not having at the time sufficient steerage way, sheered off to starboard just when she was brought into position to take the harbour and so came over against the bank on the south at the place at which...

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