Adm.] McCowan v. Baine and others ; The ISTiobe. [H . opL.
troverted matter in the case. I t is said that there was a breach of the regulations by the S ir Garnet Wolseley in more than one respect. The first is that, although she showed pyrotechnic lights at a certain time, she did not do so early enough, that therefore she committed a breach of a statutory regulation, and that in consequence of that breach it may be that the accident happened, or at least i t is impossible to say that the breach did not in some way cause the collision, th a t gives rise to various considerations. First, one has to consider what is the meaning of the regulation as to showing pyrotechnic lights.
The words are these : That a “ white ligh t shall be shown from sunset to sunrise, and one or the red pyrotechnic lights shall be shown on approaching or on being approached by another ship or vessel in sufficient time to prevent collision.” That rule does not mean that under all circumstances, when a trawler and anot er vessel are approaching one another, i t is necessary to show the pyrotechnic lig h ts ; but what i t rea y means is that, when they are approaching one another under such circumstances that there exists a risk of collision, then there is thrown upon the traw ler the duty of showing t e Pyrotechnic light, and of showing it in time to prevent collision. What happened in this case was, that when the green hg was seen and not before the pyrotechnic ligh t was shown. Mr. Aspinall says that the red ligh being continuously seen four points on the por bow of the smack, and the green five,_ shows that there was risk of collision, the ships getting hearer and nearer, and that the pyrotechnic lights ought to have been displayed during time the red lig h t was seen. That is an ingenious argument i f the foundation is sound, but doubt i f i t is. The witness says, not that the rea lig h t was seen continuously four points,, nei er more nor less ; but he says that the red jig g a little broader on the port bow, and when he C° T to the green ligh t, he puts i t a. whole p broader. B u t we think that the witness under
stated his case in this respect; we th ink 1 >
impossible that her red ligh t should not av g considerably broader as it came on, an remained at four without alteration,
appears to the T rin ity Masters and myse >
u n til the green lig h t was seen, circumstances di not arise which cast under the rule the 8®
of showing the pyrotechnic lights on the smack That is one sufficient answer; but I am by n means sure that there m ight not be^°un t i,c answer. I am far from satisfied that, ev Pyrotechnic lights had been displayed w , S ir Garnet Wolseley saw the red lig h t ®PWoac"
ing, that she would have given the Onon any appreciable advantage or contnbut d
to prevent a collision. She Knew . £ were trawling, and knew from the
the wind substantially which way A ■ going, and she saw the white hgb* a„„mf-echinc I therefore greatly doubt that, if the py
lights had been displayed at an earher t im e A would have given her any advantage. A tonne Point was that, if the th ird hand instead of buromg a flare as he did, lasting some suxty-eight second^
and then calling the captain, should P . helm hard-a-port, and let go the miaen sheet as the captain did when he came on deck But the T rin ity Masters are of opinion that the time
Vol. V I I., N. S.
so short that, even supposing the man had had presence of mind to rush to the helm, put i t hard up and let go the mizen sheet, it could have made no appreciable difference. I think, therefore, that the Orion is alone to blame for this collision, and I decree in favour of the S ir Garnet Wolseley w ith costs.
Solicitors for the plaintiffs, Pritchard and Sons.
Solicitor for the defendants, Robert Greening.
H O U S E O F L O R D S . June 15 and July 27,1891.
(Before the Earl of Selborne, Lords Watson, Bramwell, and Morris.)
McCowanv. Baine and others ; The Niobe. (a) ON APPEAL FROM THE SECOND DIVISION OF THE
(COURT OF SESSION IN SCOTLAND.
Marine insurance—Collision clause— Construction
—Ship in tow—Collision with tug.
A ship of the respondents was insured at and from the Clyde (in tow) to Cardiff and (or) Penarth, while there, and thence to Singapore, &c., and the policy contained a clause “ i f the ship hereby in sured shall come into collision with any other ship or vessel, and the insured shall in conse
quence become liable to pay, and shall pay, to the persons interested in such other ship or vessel any sum or sums of money, &c.,” then that the underwriters would repay such sum to the in sured.
While the ship was being towed from the Clyde to Cardiff her tug came into collision with and did serious damage to another vessel, whose owners recovered damages both from the ship and the Held (affirming the judgment of the court below, tug.
Lord Bramwell dissenting), that the collision was a collision within the meaning of the policy, and that the underwriters were liable.
This was an appeal from a judgment of the Second Division of the Court of Session in Scot
land (the Lord Justice Clerk (Macdonald), Lord Young, Lord Butherfurd Clark, and Lord Lee), who had affirmed a judgment of the Lord Ordinary (Trayner).
The case is reported in 17 Ct. Sess. Cas. 4th series, 1016.
The respondents, the owners of the Niobe, had effected a policy of marine insurance w ith the appellant, an underwriter. The policy contained the following clause, making the underwriters liable:
I f the ship hereby insured shall come into collision w ith any other ship or vessel, and the insured shall, in consequence thereof, become liable to pay to the persons interested in such other ship or vessel, or in the freight thereof, or in the goods or effects on board thereof, any sum or sums of money, not exceeding the value of the ship hereby assured.
W hilst the Niobe was on her way to Cardiff in tow of the Flying Serpent, her tug came into colli
sion w ith the Valetta, causing her serious damage, so that she afterwards sank. The Valetta, after colliding w ith the tug, also came into contact w ith the Niobe, but without receiving any further
ra) Reported b y 0. E. Ma l d e n, Esq., Barrister-at-Law.
N
9 0
H. or L .] McCowan v. Baine a n; inju ry. In a suit before the A d m iralty Court of England i t was decided by Lord Hannen (then President of the Probate, Divorce, and A dm iralty Division) that the collision was due to the fault of the tug, which admitted lia b ility ,_ in not porting her helm in terms of the regulations, and that the Niobe was likewise to blame in respect of her failure to keep a look-out and to control and give proper orders to her t u g : (The Niobe, 59 L. T. Hep, N. S. 257; 6 Asp. Mar. Law Cas. 300;
13 P. Div. 55.) The respondents had in conse
quence paid 12,9091. to the owners of the Valetta, and they now sued one of the underwriters of the policy for his proportion of the sum, which they claimed by way of indemnity. The action was heard by Lord Trayner, and judgment was given for the owners of the Niobe, which was affirmed by the Second Division of the Court of Session.
The underwriter appealed on the ground that, as no actual collision occurred between the Niobe and the Valetla, he was not liable.
Finlay, Q.C. and J. Walton appeared for the appellant, and contended that the collision was not w ithin the policy, all the actual damage having been done by the tug. The contract should be construed according to the natural meaning of the language. The fact that the Niobe has been held liable in the action in the A d m iralty Division in England is irrelevant, so are the cases as to t ie lia b ility of a ship in tow. We do not dispute the lia b ility of the Niobe for the damage caused, but we say that there was no “ collision ” such as the parties had in view when the policy was signed. They referred to
The Quickstep, 63 L. T. Rep. N. S. 713 ; 6 Asp. Mar.
Law Cas. 603 ; 15 P. Div. 196 ;
The American and The Syria, 31 L . T. Rep. N. S. 42;
2 Asp. Mar. Law Cas. 350 ; L. Rep. 6 P. C. 127;
The Oleadon, 4 L . T. Rep. N. S. 57; 14 Moo. P. C. 92 ; 1 Mar. Law Cas. O. S. 41;
The Independence, 14 Moo. P. C. 103.
The Attorney-General (Sir R. Webster, Q.C.), Barnes, Q.C., and Lech, for the respondents, main
tained that the facts brought the case w ithin the meaning of the policy, which must, be taken to have been made w ith reference to the known p rin ciples of maritime law. “ Collision ” here means something different from actual contact, and the clause is intended to cover all lia b ility arising from any collision for which the Niobe was in fault. The construction contended fo r by the appellant is too narrow. See
Marsden on Collisions, 2nd ed., p. 101;
The Sisters, 34 L. T. Rep. N. S. 338 ; 3 Asp. Mar.
Law Cas. 122; 1 P. Div. 117 ;
The Wheatsheaf, 2 Mar. Law Cas. O. S. 292.
I f a ship is negligently manoeuvred so that, in order to avoid a collision, another ship is put into such a position that i t sustains damage, this is damage from collision. The contract _ must be taken to have been made subject to thiB known lia b ility, and i t is too narrow a construction to restrict i t to actual contact. Secondly, the tug is the servant of the ship, and the tu g and tow must be considered as one. See
The Ticonderoga, Swa. Ad. 215.
Finlay, Q.C. was heard in reply.
A t the conclusion of the arguments their Lord- ships took time to consider their judgment.
July 27.—Their Lordships gave judgment as follows :
The Earl of Selboune.—M y L o rd s : I cannot
others ; The Nio b e. ______ [H . or L.
help thinking that, in construing such a mercan
tile contract as this, there is as much danger of error in extreme literalism as in too much, lati- tu de ; and though I do not adopt the argument that a contract of indemnity against the conse
quences of collision can be extended to a case m which there has been no collision, but only damages caused by measures properly taken to avoid a collision, I th in k a construction which makes i t cover all damages consequent upon an actual collision, for which the assured is liable, is more reasonable and more in accordance w ith the probable intention of the parties, i f the words w ill bear it, than one which does not. In the present case the Valetla was sunk by an actual collision, for which the owners of the Niobe have been held liable. But the impact which caused the_ loss of the Valetta was not of the h u ll of the Niobe, but of the steam-tug F lying Serpent, which was tow
ing the Niobe on a part of her insured voyage, described in the policy of insurance a s “ m tow from the Clyde to Cardiff or Penartb.” The words of this contract are : “ I f the ship hereby insured shall come into collision w ith any other ship or vessel, and the insured shall, in consequence thereof, become liable to pay to the persons in terested in such other ship or vessel, or in the freight thereof, or in the goods or effects onboard thereof, any sum or sums of money, not exceed
ing the value of the ship hereby assured.” I f a ship cannot be said to “ come into collision w ith any other ship” except by direct contact, causing damage between the two hulls, including under the term h u ll all parts of a ship’s structure, there was in this case no such contact, and the appellants ought to succeed. But I cannot adopt so narrow a construction of those words. I should hold them to extend to cases in which the in ju ry was caused by the impact, not only of the h u ll of the ship insured, but of her boats or steam- launch, even if those accessories were not (as m this case) insured, as being, in effect, parts of the ship. I should also hold them to cover an in
direct collision, through the impact of the ship insured upon another vessel or thing capable of doing damage, which m ight by such impact be driven against the ship suffering damage. 1 should take the same view, as against insurers in similar terms, Of a tug towing one or more barges (in which case the barge-owners would not be liable for a collision) if damage to any vessel were caused by the barge or barges being driven against it through the improper navigation of the tug, although there m ight have been no impact of the tug itself upon the injured vessel. And, after fu ll consideration, i t seems to me to be no more than a reasonable extension of the same principles to include w ithin them such a case as the present.
Where a ship in tow has control over, and is answerable for, the navigation of the tug, the two vessels—each physically attached to the other for a common operation, th at of the voyage of the ship in tow, for which the tug supplies the motive power—have been said, by high authority, to be for many purposes properly regarded as one vessel. Lord Kingsdown’s words in the case of The Independence (14 Moo. P. 0. 103) were that the tug “ may for many purposes be considered as a part of the ship to which she is attached,”
and he went on to repeat the reason given in the earlier judgment reported in the same volume (The Oleadon, 14 Moo. P. C. 92), to which he was
m a r i t i m e l a w c a s e s
.
91H. or L .] McGowan v. Ba in e and others ; Lh e Nio b e. [H . or L.
also a party, where i t was said: “ The Cleadon being in tow of the tug, i t is admitted she and the tu g must be considered to be one ship, the motive power being in the tug and the governing power in the ship that was being towed. 1 ttunli the Flying Serpent and the Niobe may be s0 A®' garded for the purpose now in question, in e principle on which the Niobe has been held liable for the collision seems to me to go far towards that conclusion. That the Niobe should be in tow from the Clyde to Cardiff or Penarth was, in the present case, part of the contract, i t in the construction ought to be the same, so tar a relates to that voyage, as i f the words in margin had been “ i f the ship insured, wnue tow between the Clyde and Cardiff or Penar , shall come into collision w ith any other vesse ,
&c. I f the contract had been so ex pres se , should have thought i t arbitrary and not reaso - able to exclude a collision by the impact o _ tug during that voyage upon another vesse , o the consequences of wiiich the owners of the i_
were liable. I am, for these reasons, of opinion that the interlocutors appealed from are rig ,
and ought to be affirmed. ... „
Lord Wa t s o n.—M y L o rd s: The Niobe, a sailing ship belonging to the respondents, was cohere by a policy of insurance “ at and from the y (in tow) to Cardiff and (or) Penarth, while there and thence to Singapore, and while m port th irty days after arrival.” Provision was ® » e for indemnities against liabilities arising r collision by a marginal clause, upon tne struction of which the result of this appeal must depend. W hilst the Niobe was on her way to Cardiff in tow of the F lying Serpent her tug came into collision w ith the Valetta, causing serious damage. The Valetta, after colliding w ith the tug, also came into contact witn Niobe, but w ithout receiving any injury, suit before the A d m iralty Court of England, i was decided by Lord Hannen that the c was due to the fault of the tug in not P“ r * &
helm in terms of the regulations, and t Niobe was likewise to blame in respect failure to keep a look-out, and to °on steerage of her tu g : (The Niobe, 59 L. • • N. S. 257; 6 Asp. Mar. Law Cas. 300, 1 _•
L iv . 55.) The respondents have i
quence paid 12,9091. odd to ^he owne . ^ Valetta, and they now sue one of the un 1 <
of the policy for his proportion of the . ^ they claim by way of indemnity. wn ich lia b ility of the Niobe, and the facts Pgident of i t rests, as these were found by the t ual the A d m iralty Division, are matters of mutua1 admission in this case. Whether the collision between the Flying Serpent_ and t margi nai a collision w ithin the meaning matter of clause of the policy is the only f u^ fc; X se is controversy. The material part of ^ in these terms : “ And i t is further
the ship hereby insured shall com insured w ith any other ship or vessel, and t ie insured shall in consequence thereof te(j i n s^ucli and shall pay, to the persons in t thereof or other ship or vessel, or ^ the freight thereof,^or in the goods or effects on ^ ° ar . assured, not exceeding the value of the shin ? nropor- we w ill severally pay the assur P in^the tion,” &c. Then follows a stipulation that, in t same events, in cases where the lia y
ship has been contested w ith their consent in w riting, the insurers w ill also pay a proportion of the expenses incurred or paid by the insured.
Lastly there is a proviso to the effect that the clause shall not extend to any sum which the assured may become liable to pay or shall pay
“ in respect of loss of life or personal in ju ry to individuals for any cause whatsoever.” The clause is certainly not conceived in the terms in which one would have expected i t to be if, as was argued, i t was the intention of the parties to include in the indemnity all liabilities arising from collision which the Niobe could possibly incur. The condition which must be fulfilled before any obligation can attach to the under
writers is, “ that the ship hereby insured shall come into collision w ith ” another ship or vessel.
These words in their literal sense import that there must be contact between the Niobe and such other ship or vessel, causing damage to the latter.
There are many ways in which a ship under sail may, without being herself in collision, become liable to bear the whole damages resulting from a collision. Her unjustifiable manoeuvre may occasion the colliding of two or more vessels, other than herself, without any blame on their p a rt; and in that case the offending ship, and she alone, is responsible for the consequences of her fault." In such a case I should not be prepared to hold that the Niobe had, in the sense of the policy, “ come into collision w ith ” the vessels which'she caused to collide, because there would be no ground in fact or law for the suggestion that the Niobe ought to be identified w ith any one of them. So far as I can discover, none of the
There are many ways in which a ship under sail may, without being herself in collision, become liable to bear the whole damages resulting from a collision. Her unjustifiable manoeuvre may occasion the colliding of two or more vessels, other than herself, without any blame on their p a rt; and in that case the offending ship, and she alone, is responsible for the consequences of her fault." In such a case I should not be prepared to hold that the Niobe had, in the sense of the policy, “ come into collision w ith ” the vessels which'she caused to collide, because there would be no ground in fact or law for the suggestion that the Niobe ought to be identified w ith any one of them. So far as I can discover, none of the