Petrie v Owners of Ss. "Rostrevor"

• Jurisdiction: Ireland
• Judgment Date: 22 February 1898
• Date: 22 February 1898
• Court: Court of Appeal (Ireland)

Petrie

and

Owners of SS. “Rostrevor” (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Negligence — Navigation — Tidal river — Oyster beds laid down by trespasser — Grounding of ship without negligence — Standard of care and skill required in the avoiding of damage to the property of a trespasser.

The Newry Navigation Company were a corporation established by statute for carrying on the navigation in the Newry River, and through Carlingford Lough to the sea. The river from Newry to Warrenpoint, where it enters the Lough, is about seven miles long, and the bed had been deepened by dredging for the purposes of navigation by the Company.

The plaintiff had laid down some oyster beds in the Newry River on the southern shore. In 1889 and in 1894 he took portion of the fore-shore from the tenants of lands abutting on the river, but he had no title to any part of the bed and soil of the river, and in the opinion of the Court of Appeal, on the evidence, he was not even lawfully in possession of the site of the oyster beds. He twice applied to the Fishery Inspectors for a license to lay down oysters, but his applications were refused. A correspondence ensued between him and the Navigation Company, for the purpose of obtaining a lease of the beds from them. The Company refused to grant a lease, and more than once warned him to take away his oysters, as they were about to commence dredging operations.

On the 10th December, 1895, the “Rostrevor,” a screw steamer the property of the defendants, while proceeding down the Newry River, accidentally went ashore at the place where the plaintiff had laid down his oysters, and her bow stuck in the ruins of an old beacon. it was two hours after high water and she lay there till the return of the high water. Shortly before the return of high water the captain got her off, and in doing so he used the propeller as well as a hawser attached to a post on the opposite shore. The captain deposed that he was ignorant of the existence of the oyster-beds, but it was proved by some witnesses that at low water, portion of the vessel was high and dry, and the oysters were visible all round her. The plaintiff's oysters were damaged very considerably by the vessel in taking the ground, and still more so in getting her off:—

Held, that there being no sufficient evidence of recklessness or gross negligence on the part of the captain, the plaintiff was not entitled to recover damages for the injuries to the oysters.

The standard of care and caution by the owner of a ship lawfully using

the water way of a navigable river towards a trespasser thereon considered, and the analogous authorities upon negligence discussed.

Per Lord Ashbourne, C. The captain was entitled to get off his ship, by any reasonable exercise of seamanship that his own reasonable knowledge might suggest. He was bound not to be reckless or careless, so as to injure the oysters; but within that he was entitled to do anything that he reasonably could, to effect what was necessarily his primary object and purpose, viz. to get away his ship safe, exercising his skill and judgment bona fide, and fairly avoiding, as far as he could, any reckless, negligent, or careless action that might be detrimental or dangerous to the oysters.

Per Fitz Gibbon, L. J. The captain was entitled to use all reasonable means, according to the best of his judgment, to take his ship out of the position in which she lay; and though he was bound to the plaintiff, in using those means, not to recklessly or wilfully injure the oysters, his first duty and right was to do everything which seemed reasonable to get his own ship off.

The Newry Navigation Company was established for the purpose of carrying on the navigation in the Newry River and Carlingford Lough, and for that purpose had procured certain Acts of Parliament, commencing with 10 Geo. 4, c. cxxvi. and going down to 47 & 48 Vict. c. cxxxviii. The Newry River, portion of their property, flows from Newry to Warrenpoint, separating the county of Down from the counties of Louth and Armagh, a distance of about seven miles, where it enters Carlingford Lough, and it was vested in the Company by the provisions of these statutes.

The plaintiff was a fish merchant in Liverpool, who had laid down some oyster beds in the Newry River, at Cornamuckla, on the southern or county Louth shore. In 1889, he first took portion of the foreshore from the tenants on portions of the lands abutting on the river; he took further portions down to 1894, and he had been in possession ever since. He twice applied to the Fishery Inspectors for a license to lay down oyster beds in portion of the Newry River, but he was refused upon both occasions. A correspondence ensued between the plaintiff and the Newry Navigation Company commencing in September, 1892, in which the Company warned the plaintiff against laying down the oysters in the river, and that as they were going to commence dredging operations the plaintiff's oysters were there at his peril. Notwithstanding promises by the plaintiff to remove his oysters, he continued to lay down oysters, and finally on the 3rd July, 1893, the plaintiff, through his solicitor, wrote to the Company and asked for a lease of the portion of the shore where his oysters were deposited. This offer was refused.

On the 10th December, 1895, the “Rostrevor,” a screw steamer, was proceeding down the Newry River, on a voyage to Swansea. At Cornamuckla there is a bend in the river, and the captain of the “Rostrevor” instead of keeping in the centre of the fair-way of the river, directed his course straight from point to point. At that moment a squall struck the vessel on her port bow, and she took the ground at a place on the foreshore where the plaintiff had laid down oysters. The channel was there about 120 feet wide, and the “Rostrevor” was 120 feet long. After grating over some yards of the foreshore, her bow stuck in the remains of an old beacon. There was no mark, or post, either on the land, or in the water to show where the oyster beds were, and the captain of the “Rostrevor” did not know of their being there. At low water the vessel was lying on the shore, and there was no water round her. Two witnesses for the plaintiff deposed that the oysters were then plainly visible. It was high water that morning at 5.11 a.m., and the vessel went ashore about 7 a.m. She lay there till between 4 and 5 p.m., lying broadside to the river. As the tide was ebbing the captain resolved not to attempt to get off till high water. About 5 p.m. he ran out a kedge to the opposite side of the river, and attempted to get her afloat by the use of the steam winch and two warps. There was a severe strain on the warps, one of which parted. Fearing that she would not get afloat before the tide turned, the captain reversed the propeller and the steamer was got afloat. Some of the blades of the propeller were broken in getting her afloat, and the track by which she was moved over the ground to get afloat was different from the place where she took the ground. In going ashore, and also in getting her afloat a large number of the oysters were destroyed. Petrie brought a suit in the Queen's Bench Division (Admiralty) against the owners of the “Rostrevor” for the damage done by the grounding of the vessel (1).

(1) The following judgment was delivered by Johnson, J., in the Queen's Bench Division (Admiralty):—

The statement of claim alleges that the plaintiff was possessed of an oyster bed sufficiently marked out and known, being part of the foreshore of the Newry River where the tide ebbs and flows, at Cornamucklagh, county of Louth, with oysters on it; and (1st) that the defendants' ss. “Rostrevor,” while steaming down the river, by the negligence and want of skill of defendants by their servants, left the fairway and ran aground on the oysters and injured them; and (2nd) that afterwards defendants by their servants so negligently and unskilfully moved the steamship from the place where she grounded that she damaged other parts of the oyster bed and oysters.

The defendants, by their statement of defence, traverse all averments, and allege that while the steamship was being navigated with reasonable skill and care she grounded; that she was removed from the oyster bed with reasonable care and skill; that the grounding was an inevitable accident: and that there was no damage.

The Newry River is a public navigable river, of which the bed and soil (including the place where the “Rostrevor” went ashore) is, by the Newry Navigation Acts, 1829 and 1884, vested in the Newry Navigation Commissioners, subject to the public right of navigation on payment of specified tolls, which are applied in the improvement and maintenance of the navigation of the river. The tide ebbs and flows from Warrenpoint to the head of Carlingford Lough to Newry, and is controlled by locks. For many years tenants of landowners adjoining the river foreshore (including the locus in quo) were in the habit of dredging up the natural oysters from the bed of the stream, placing them on the foreshore adjoining their holdings, and selling them. The plaintiff is an English merchant possessing capital and energy, and this local practice appears to have suggested to him the establishment in the locality of a regular oyster bed. Accordingly, he obtained lettings of foreshore for short periods from the tenants of adjacent holdings, first, in 1889, and later in 1894, and laid down oysters in those places annually, in March or April, and lifting oysters from the bed and exporting them to England up to the ensuing November, but having oysters all the year round in the bed. These tenants had no title to make such lettings, and I am disposed to think that the plaintiff took them more with the...