Boucher v The Clyde Shipping Company

• Jurisdiction: Ireland
• Judgment Date: 17 May 1903
• Date: 17 May 1903
• Docket Number: (1902. No. 1847.)
• Court: King's Bench Division (Ireland)

Boucher

and

The Clyde Shipping Co. (1).

K. B. Div.

(1902. No. 1847.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Collision — Claim for damages for personal injuries — Pilot — Regulations for preventing collisions at sea — Articles 10–21 — Both ships in fault — Division of loss — Merchant Shipping Act, 1894, sect. 419, sub-sect. 4 — Judicature Act (Ireland), 1877, sect. 28, sub-sect. 9.

The plaintiff sustained personal injuries in a collision at sea that occurred between a schooner in his charge as pilot, and the defendants' steamer. In an action in personam against the defendants, claiming damages in respect of such injuries, caused, as alleged, by the negligence of the defendants, the jury (inter alia) found that the defendants were negligent in not getting out of the way of the schooner, or stopping; and assessed the plaintiff's damages at £500. It was admitted that the schooner, which was being overtaken by the steamer, displayed no stern light, as required by article 10 of the statutory regulations.

On a motion to set aside the verdict and judgment entered for the plaintiff for £500 at the trial:—

Held, that the Merchant Shipping Act, 1894, c. 60, sect. 419, sub-sect. 4, is not confined to Admiralty cases, but applies to all Courts; that the schooner was in fault in respect of the said breach of the collision regulations; and, per Andrews and Gibson, JJ. (Boyd, J., dissenting), that the Admiralty rule as to division of loss applied; and that the plaintiff was only entitled to half the damages assessed by the jury.

New Trial Motion.

The action, which was tried before the Lord Chief Baron and a special jury of the city of Dublin during the Hilary Sittings, 1903, was brought by the plaintiff to recover damages for personal injuries sustained (as alleged) through the negligence of the defendants or their servants. The plaintiff was a certified pilot of the city of Waterford, and the defendants were the owners of the steamship Pladda. On October 4, 1901, about 8.30 p.m., a collision occurred in Waterford Harbour between the Pladda, of 510 tons register, proceeding to Waterford with a general cargo, and the schooner Cintra, of 162 tons register, proceeding

to New Ross with a cargo of coal. As a result of the collision, the Cintra which was in the charge of the plaintiff as pilot, foundered and sank, and the injuries complained of in this action were sustained by the plaintiff in escaping from the sinking vessel into a punt alongside. Shortly before the collision, and after the lights of the Pladda which was approaching and overtaking the Cintra had become visible to those on board the Cintra, the latter vessel, which was making towards the weir on the Waterford side of the harbour, on the starboard tack, came round on the port tack without finishing her course. There was some conflict of evidence as to the exact place where the Cintra went about, the change of course being (the plaintiff alleged) necessary by reason of the proximity of shallow water. It was admitted that the Cintra displayed no stern light as required by article 10 of the Regulations for Preventing Collisions at Sea, of November, 1896 (1).

The plaintiff by his statement of claim alleged that those on board the Pladda wrongfully and improperly neglected to keep a good look out; that the Cintra being a sailing vessel, the Pladda wrongfully neglected to keep out of the Cintra's way; that the Pladda at the time of the collision was on her wrong side of the river, and was proceeding at an excessive rate of speed; and that the collision and the injuries of the plaintiff were caused by the negligence of the Pladda, the defendants, their servants and agents.

The defendants by their defence denied negligence on their part, pleaded contributory negligence, and charged that the plaintiff, being in charge of the Cintra, negligently and wrongfully navigated her in an unskilful and unseamanlike manner, and failed to keep the Cintra on her course when the Pladda was overtaking her, and did not exhibit to the Pladda any proper stern light or flare-up light, or give the Pladda any warning of the position of the Cintra.

The following were the questions left to the jury, the answers to which are appended:—

1. Was the defendants' steamer out of its course, and was being so out of its course negligence which caused the accident? Answer—Defendants' steamer was not sufficiently out of its course to cause the accident.

2. Was the plaintiff guilty of negligence in respect of the following matters—(a.) In not having shown any stern light or flare-up light? Answer—We consider that the plaintiff should have exhibited a stern or flare-up light when the schooner was in stays. (b.) In having (as alleged) gone about in the fair way before she had finished her tack. Answer—No. (c.) In not having a look out? Answer—No. (d.) And if so, did such negligence contribute to the injuries complained of? Answer—No.

3. Were the Pladda and the Cintra proceeding in such directions as to involve risk of collision. Answer—No, if proper precautions had been taken.

4. Did the defendants take due care to keep out of the way of the Cintra? Answer—No.

5. Could the defendants by either getting out of the way of the Cintra or by stopping before the collision have avoided the consequence of the plaintiff's negligence and the injuries complained of, and if so, were they (defendants) negligent by not getting out of the way or stopping? Answer—Defendants were negligent in not getting out of the way or stopping.

6. If so, assess the plaintiff's damages? Answer—Damages £500.

Upon these findings the learned Judge entered judgment for the plaintiff for £500 and costs; and the defendants now moved that the verdict and judgment so had at the trial should be set aside, and that judgment should be entered for the defendants, or for a new trial.

Hume, K.C., Chambers, K.C., and Boyd, for the defendants:—

1. [They contended that the answers of the jury to questions 2, b, c, and d. and 3,4, and 5, were against the weight of evidence, and that the Cintra was alone to blame for the collision by reason of her having stayed where she did.]

2. Under the Merchant Shipping Act, 1894, sect. 419, sub-sect. 4 (1), the Cintra must be deemed to have been in fault owing to her breach of articles 10 and 21 of the Regulations for Preventing Collisions at Sea, 27th November, 1896 (2). It cannot be contended that departure from the regulations was necessary, or that the breaches thereof could not possibly have contributed to the collision. The principle laid down in Tuff v. Warman (3) no longer applies: Merchant Shipping Act of 1873, sect. 17. The true construction of that section is determined in The Fanny M. Carvill (4), followed in The Duke of Buccleuch (5). The regulations must be strictly followed; necessity alone excuses their non-performance: Stoomvaart Maatschappy Nederland v. Peninsular and Oriental Steam Navigation Company (6). The Merchant Shipping Acts are not limited to Admiralty cases, and their provisions must be given effect to in every Court. Consequently, the Cintra being in fault, the plaintiff can recover nothing, as the Admiralty rule as to division of loss does not apply to cases of personal injuries; if, on the other hand, that rule does apply, the plaintiff can only recover half the damages assessed by the jury.

Serjeant Dodd and Rice, for the plaintiff:—

Section 419 of the Act of 1894 relates only to a matter between ship and ship, and not as between man and ship. “Deemed to be in fault” is a technical phrase in Admiralty, and has no application to an ordinary common law action founded upon negligence, such as the present. It is submitted that the plaintiff's case comes within the principle of Tuff v. Warman (3) and Davies v. Mann (7), and that sect. 419 being inapplicable, the plaintiff is entitled to the full amount of the damages assessed by the jury, if entitled at all.

2. There is no finding that the Cintra infringed any of the

regulations. This Court cannot draw inferences of fact to that effect, it not being the Court “before whom the case is tried.” The plaintiff is, at the worst, entitled to half damages.

Boyd, in reply.

[The following cases were also referred to during the argument:—The Englishman (1); The Lapwing (2); The Main (3); The Voorwaarts and The Khedive (4); The Benares (5); The Memnon (6); The Vera Cruz (7); The Bernina (8); Thorogood v. Bryan (9); The Bushire (10).]

Cur. adv. vult.

Hume, K.C., Chambers, K.C., and Boyd, for the defendants:—

Serjeant Dodd and Rice, for the plaintiff:—

Gibson, J.:—

The learned Judge at the trial acted on Tuff v. Warman(11). If that case applies, the verdict must stand, as there was evidence to support the finding that the proximate cause of the collision was the negligent navigation of the Pladda. The question with which I propose to deal is the effect of the Merchant Shipping Act, 1894, and whether the infringement of statutory regulations by the plaintiff is a defence to the action.

Two articles of the code are said to have been violated—article 10, as to stern lights, and article 21, that the sailing vessel should keep her course and speed. As to the alleged infringement of this latter article, I express no opinion. The duty of maintaining course and speed depends on reasonable possibility of doing so, the proximity of land, the wind, etc. The evidence was contradictory, and the place where the Cintra went about, and the reason of doing so, were in controversy, and were not found by the jury.

I turn to article 10, the operation of which is explained in The Main (3). The obligation to show the stern light arose if and when the Cintra saw the Pladda approaching and overtaking her on a course likely to lead to a position of danger. It was the duty of the Cintra, on the evidence, to exhibit a...