Windram v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 23 May 1905 |
| Date | 23 May 1905 |
| Docket Number | No. 122. |
| Court | Court of Session |
Lord Low, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Shipping Law—Collision—Departure from Collision Regulations—Onus—Regulations for Preventing Collisions at Sea, Articles 20, 21, 22, 23, and 27—Merchant Shipping Act, 1894 (57 and 58 Vict. c. 60), secs. 418 and 419 (4).—
The s.s. ‘Kyanite,’ finding herself in dangerous proximity to the ‘Buccleuch,’ a ship under sail, whose lights were inadequate, and being unable to tell what the course of the sailing ship was, starboarded her helm in order to turn away from the sailing ship, and continued to go full speed ahead. This brought the ‘Kyanite’ across the course of the ‘Buccleuch,’ and, two or three minutes after the ‘Buccleuch’ was first sighted by the ‘Kyanite,’ a collision took place, the stem of the ‘Buccleuch’ striking the ‘Kyanite’ on the starboard side, nearly amidships.
In cross actions of damages, held (1) that although the ‘Kyanite’ did in fact depart from the Regulations for Preventing Collisions at Sea, by crossing the course of the ‘Buccleuch,’ she, being wholly unaware of the course of the latter owing to her inadequate lights, was not chargeable with fault in respect of this departure from the regulations; but (2) that the ‘Kyanite’ was to be held at fault in respect that she had infringed article 23 of the regulations by failing to stop and reverse in the short space of time after she sighted the sailing ship, and had failed to discharge the onus which lay on her of shewing that her failure to comply with this article of the regulations was excusable, by proving either that her departure from the regulations was the only chance of escaping a collision, or that the risk of collision would have been increased by obeying the regulations.
In November and December 1903 George Windram and others, owners of the iron sailing ship ‘Buccleuch’ of Liverpool, and William Robertson, owner of the s.s. ‘Kyanite,’ of Glasgow, raised cross actions of damages, concluding respectively for £3000 and £10,000, on account of a collision between these two vessels, which occurred on 17th October 1903 in the English Channel between Folkestone and Dover. The actions were conjoined.
In the action at their instance the owners of the ‘Buccleuch’ averred that on the evening of 17th October 1903 the ‘Buccleuch’ was proceeding eastwards on a voyage from Falmouth to Amsterdam under all plain sail, and, about 7.45 p.m., in clear weather, those on board sighted the ‘Kyanite’ approaching her some miles off on the port bow. (Cond. 3) ‘The lights of the “Buccleuch” were burning brightly, and her port light was visible to any person keeping a proper lookout on the “Kyanite.”’ (Cond. 4) ‘The vessels were then approaching each other in a direction which seemed to involve a risk of collision if each kept on its course, and it was the duty of the steamer to keep out of the way of the sailing vessel. Nevertheless the “Kyanite” continued upon her course, by which she was being brought nearer to the “Buccleuch.” Thereupon, in order to still further warn those on board the “Kyanite” of the proximity of his vessel, the master of the “Buccleuch” burned a blue flare light on the port side of his ship …’ (Cond. 5) ‘When within about 150 yards of the “Buccleuch” the helm of the “Kyanite” was suddenly put to starboard, which had the effect of taking her directly across the bows of the “Buccleuch” and of making a collision between the vessels inevitable. The master of the “Buccleuch” tried to avert a collision by putting his helm hard-a-starboard; but before this operation could take effect upon his vessel's course the vessels collided,’ the stem of the ‘Buccleuch’ striking the ‘Kyanite’ on the starboard side nearly amidships.
The owner of the ‘Kyanite’ answered;—(Ans. 3) ‘Denied that the “Buccleuch's” lights were burning so as to be visible to any vessel approaching her. …’ (Ans. 4) ‘Admitted that the “Kyanite” kept on her course, as, owing to the absence of lights on board the “Buccleuch” those on board the “Kyanite” had no reason to anticipate any danger until the “Buccleuch” suddenly loomed up close on her starboard bow. Quoad ultra denied.’ (Ans. 5) ‘Admitted that immediately after seeing the loom of the “Buccleuch” the “Kyanite” starboarded her helm in order to try and run clear of the “Buccleuch,” which was then the only possible chance of safety for both vessels. Owing, however, to the proximity of the “Buccleuch,” and to the fact that the latter improperly starboarded her helm and came to port, the collision could not be avoided.’
The owners of the ‘Buccleuch’ further averred;—(Cond. 6) ‘The said collision was caused by the fault of those in charge of the “Kyanite.” Instead of directing their course so as to keep out of the way of the “Buccleuch,” as it was their duty to do, they navigated their steamer so as to bring her directly across the course of the sailing vessel, and thereafter, in breach of Rule 22 of the Regulations for Preventing Collisions at Sea, they attempted to cross ahead of her. Had they, instead of attempting to cross ahead, ported the “Kyanite's” helm instead of starboarding it, the pursuers believe and aver that the collision would have been avoided. Further, upon approaching the “Buccleuch,” it was the duty of the “Kyanite” to stop and reverse, which she failed to do. The pursuers also believe and aver that no proper lookout was kept on board the “Kyanite” prior to the said collision. The defender's servants were thus guilty of breach of the rules of good seamanship, and of the Articles for the Prevention of Collisions at Sea, particularly Articles 20, 22, 23, and 29.’*
The answer was in these terms;—(Ans. 6) ‘The collision was caused solely by the fault of those in charge of the “Buccleuch.” Her lights were defective, either being out altogether or having become invisible. In consequence, those in charge of the “Kyanite” were not aware of the proximity of the “Buccleuch” until it was too late to avoid a collision. Those in charge of the “Kyanite” did everything possible to avoid the collision by directing her course to port as aforesaid. The collision might have been avoided had it not been that the “Buccleuch” starboarded her helm immediately before the collision, and so ran into the “Kyanite.” Those in charge of the “Buccleuch” were thus guilty of breach of the rules of good seamanship and of the Regulations for the Prevention of Collisions at Sea, and particularly of Articles 1, 2, 5, 21, and 29 thereof.’
The owners of the ‘Buccleuch’ pleaded;—(1) The said collision having occurred through the fault of the servants of the defender on board the ‘Kyanite,’ and the pursuers having suffered damage thereby, the defender is liable in reparation.
The owner of the ‘Kyanite’ pleaded;—(1) The collision in question having been caused solely by the fault of those in charge of the pursuers' vessel, the defender is entitled to be assoilzied. (3) Separatim, the collision in question having, in any event, been contributed to by the fault of the pursuers, the loss falls to be apportioned according to Admiralty practice.
The record in the action at the instance of the owner of the ‘Kyanite’ was to a similar effect.
A proof was allowed in the conjoined actions. The proof disclosed that the ‘Kyanite’ before the time of the collision was proceeding on a course S.W. by W. half W., in charge of the mate, Fife. The course of the ‘Buccleuch’ was E. by N., the wind being northerly. The steamship ‘Ness’ was at the time holding the same course as the ‘Buccleuch,’ astern of her, on the south side, the other side from the ‘Kyanite.’ The other facts disclosed by the proof which are material to this report sufficiently appear from the opinions of the Lord Ordinary and the Lord President.
On 12th July 1904 the Lord Ordinary (Low) pronounced this interlocutor:—‘Finds that the collision between the sailing ship “Buccleuch” and the steamer “Kyanite” was caused by fault on the part of those in charge of both vessels,’ &c.*
The owners of the ‘Buccleuch’ reclaimed.
Argued for the owners of the ‘Buccleuch,’ on the question whether ‘Kyanite’ was at fault;—Those in charge of the ‘Kyanite’ were in fault in (a) starboarding her helm immediately before the collision, and (b) failing to stop and reverse her engines. The starboarding of the helm of the ‘Kyanite’ so as to attempt to cross ahead of the ‘Buccleuch,’ was a breach of Rule 22 of the Regulations for Preventing Collisions at Sea. Further, by failing to stop and reverse as they approached the ‘Buccleuch,’ those in charge of the ‘Kyanite’ were in breach of Rule 23 of these Regulations. Under Rules 20 and 21, the whole duty of keeping out of the way lay on the ‘Kyanite,’ which was a steam vessel, and the ‘Buccleuch,’ being a sailing ship, was entitled and bound to keep...
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