Viscount Haldane.—I have had the advantage of reading the judgment of my noble and learned friend Viscount Dunedin. With his statement of the facts in the appeal, down to that of the result of the reclaiming note to the Second Division, I am in full agreement, and with his statement of the law which follows, so far as the principle is concerned. The question is whether, after the original fault which started matters, there has been a novus actus interveniens which was the direct cause the final damage. Here also I am in agreement with him. I think further that the question whether there was failure to use the engines of the “Baron Vernon” when she was on the north bank, in the first position, is purely one of fact.
But I do not agree that it has been proved that there was such a novus actus assuming the form of negligence on the part of those in charge of the “Baron Vernon” in not using the engines. Negligence was not established in the other particulars alleged against those in charge. Apart from the question of not using the engines, there were three other allegations of negligence made against those in charge of the “Baron Vernon,” when in the first position on the north bank. It was alleged at the trial that they should have obtained the assistance of tugs; next, that the steamer should have had her moorings out; and, thirdly, that she should have filled her aft ballast-tanks. If, contended the appellants, these precautions had been taken, the steamer would have remained in position No. 1, and could have been easily and inexpensively salved. But, on these three allegations, the Lord Ordinary, after hearing the evidence, exonerated them, and found the facts in favour of the respondents. It is only in the averment of negligence in not using the engines that he decided against the respondents, and the learned counsel for the appellants are stated in the judgment of the Lord Justice-Clerk to have abstained from challenging the judgment against them on the other grounds referred to.
I therefore turn at once to the crucial question in the case, Was there fault in those responsible for the ship in reference to the use of her engines when she was on the north bank? Now, this is a question of evidence, and, in weighing the evidence in order to draw the proper inferences, there are certain principles which have to be kept steadily in view. When a collision takes place by the fault of the defending ship, the damage is recoverable, in an action for damages, if it is the natural and reasonable result of the negligent act, and it will assume this character if it can be shown to be such a consequence as in the ordinary course of things would flow from the situation which the offending ship had created. Further, what those in charge of the injured ship do to save it may be mistaken, but, if they do whatever they do reasonably, although unsuccessfully, their mistaken judgment may be a natural consequence for winch the offending ship is responsible, just as much as is any physical occurrence. Reasonable human conduct is part of the ordinary course of things which extends to the reasonable conduct of those who have susstained the damage and who are seeking to save further loss: These propositions were laid down and applied by Lindley, L.J., and his colleagues in the Court of Appeal in the “City of Lincoln.” They are in accordance with what was said in 1857 by Dr Lushington in the “pensher.” It follows that the burden lies on the negligent ship to show by clear evidence that the subsequent damage arose from negligence of great want of skill on the part of those on board the vessel damaged. It is their duty to do all they can to minimise that damage, but they do not fail in this duty if they only commit an error of judgment in deciding on the best course in difficult circumstances. In the case of the “City of Lincoln” the steering compass, charts, log, and log glass of the damaged barque had been lost in the collision. The master made for a port, but, owing to the loss of his instruments, he was unable to calculate with accuracy the distance. He blundered, and his ship grounded and was lost. None the less his ship was held entitled to recover. In “H.M.S. London” the rule laid down was that, if the negligent act is the primary and substantial cause of the damage sustained by the plaintiff, the defendants will be responsible for the whole loss, even although it may have been increased by the introduction of the wrongful conduct of a third person as an outcome of the original negligent act.
The burden of showing that the chain of causation started by initial injury has been broken lies on the defenders. In order to charge this burden they must prove that the breach in the chain was due to unwarrantable action, and not merely to action on an erroneous opinion by people who have bona fide made a mistake while trying to do their best, which is all that is shown to have happened in the present case. This seems to me to be the standard in the light of which we must examine the evidence of what occurred in the position on the north bank. [His Lordship then examined the evidence as to the position in which the “Baron Vernon” grounded on the north bank]
The first question on which the appellants have to discharge the burden of proof which lies on them is whether the respondents were in fault in failing to secure the steamer in position 1. Was there reason to think that this could be more readily effected from a position on the north bank than from one on the south side of the river? I find no evidence which satisfies me that the prudent course was not to take the steamer, if possible, across to where the bank was softer and presumably safer. If this was so, it was not negligence to keep the steamer only for a short time on the north bank. In the hurry and confusion which followed the collision the respondents endeavoured to keep her there, but whether it was negligence which resulted in damage to let her slip across the river, I very much doubt.
Whether this be so or not, it seems to me that it has not been proved that the respondent steamer was in a position such that by using her engines she could have been maintained in it. [His Lordship examined the evidence and gave his reasons for this conclusion, and also indicated a doubt whether, looking to the position in which the vessel was lying, it would have been safe to use the engines at all.]
The conclusion at which I have arrived is based on the principle which requires the appellants in a case such as this to discharge the burden of proof, and also on a survey of the evidence. If that conclusion is right as regards position 1, I think that it is a fortiori right as regards positions 2 and 3. I am therefore of opinion that the interlocutor of the Second Division was correct, and that the appeal ought to be dismissed, with costs.
Viscount Dunedin.—[After the narrative quoted supra]—I shall now say a few words on the law of the case, as to which I believe there is no substantial difference of opinion. The “Metagama,” having been in fault for the collision, is liable for the damage occasioned thereby, and, if the ship with which she collided sinks subsequently to the collision, she is, if no more is to be said, liable for that sinking. That is what Dr Lushington said in the cases of the “Mellona” and the “Pensher.” But it is always the duty of the person who is damaged to do his best to minimise his loss. This is really the same thing as to say that, if he might reasonably have avoided any part of the damage he has suffered, to that extent the damage is not such as arises directly from the act complained of. In many cases the question is stated as to whether, after the original fault which started matters, there has been a novus actus interveniens which was the direct cause of the final damage. Novus actus interveniens may be the act of a third party, so that in this case I think the best way of stating the question is, Was the pursuer guilty of such negligence after the collision as to make that negligence the direct cause of the final damage?
The learned Dean of Faculty for the appellants strongly urged the proposition that, if a person owes a duty to another and is negligent in the performance of that duty, then it is for him to show—the onus is on him to show—that the result of such negligence had no effect on the ultimate loss, and he cited the cases of Davis v.Garrett and Alexander Turnbull and Co. v. Cruickshank and Fairweather. I have no fault to find with his proposition, but I do not think those cases necessarily apply, for in Davis's case deviation was undoubted negligence, and in Turnbull's case the failure to pay the fees for keeping up the patent was undoubted negligence. Now, here the negligence alleged is the failure to use the engines to maintain the vessel's position on the north bank. Whether this failure to use the engines was negligence is a question of fact. In the whole circumstances, it is, indeed, what is usually termed a jury question, and it is, therefore, not very surprising that there should be difference of opinion on the matter. If that failure was in the circumstances negligence, then the cases cited apply, but, if it is not, then the basis of those cases fails. The whole point, therefore, in my view, on which: the case turns is, Was it negligence of the persons in charge of the “Baron Vernon” not to use the engines to keep the vessel on the north bank?
So far, I believe, in what I have said I will have the adhesion of all your Lordships; but I now come to more contentious matter. I think it very necessary to state quite precisely what my view of the facts is, for the facts must be precisely settled before the law can be applied. I take the view which the Lord Ordinary, who tried the case and saw the witnesses, took, that there was real negligence. [His Lordship referred to the evidence, and in particular to that of the master and pilot of the “Baron Vernon.”] I have come to the conclusion, with the Lord Ordinary, that very little would have been needed to keep her where she was for the one critical but short period when the tide turned, and that that little could have been easily given by using the engines—that the non working of the engines was negligence. I am not insensible to the view that a mere error of judgment in choosing between two courses ought not to be counted negligence; but an error in judgment is one thing, supine inaction another, and the latter is what, in my view, ruled on this occasion. If, by the negligence of the pursuers, the ship left its safe position, then all subsequent damage is attributable not to the original fault but to that subsequent negligence.
After the vessel assumed her position on the south bank the pursuers did what they could to keep her there, using a tug and then getting anchors to which to moor her. No doubt here a mistake of judgment was made. The mooring was such as secured that the stern should not drift outwards, but there was no provision against the stern swinging inwards, which came to the same thing. Here, however, I think the defenders (though in the view I have taken as to position No. 1 this is immaterial) cannot be held to blame, because they consulted the best authority they could, namely, the harbourmaster, and he gave the opinion that the ship was securely moored. I think this comes directly within what was said by Lord Collins in clippens Oil Co. v. Edinburgh and District Water Trustees, when, justly correcting a remark which I had made in the Court of Session, he said:—“I think the wrongdoer is not entitled to criticise the course honestly taken by the injured person on the advice of his experts, even though it should appear by the light of after events that another course might have saved loss.”
On the whole matter I would allow the appeal and restore the judgment of the Lord Ordinary.
Lord Shaw of Dunfermline.—After a full consideration of this case I am of opinion that the judgment of the Second Division of the Court of Session is correct, and that the appeal should be dismissed.
The general narrative as to the movements of this ship is clearly given in the opinion of my noble and learned friend who has preceded me. I think with him, and with possibly all your Lordships, that no negligence has been established against the “Baron Vernon” in regard to the events which occurred after that vessel, in her wounded condition, slipped off the north bank of the Clyde. In her subsequent proceedings those in charge of her acted upon advice which, concurring with their own opinion, proved that there was a case of erroneous judgment but not of negligence.
The difference which arises on the bench concerns the single remaining case of what is called position No. 1, that is to say, what was done or not done after the “Baron Vernon,” rammed to the water line on her port bow, made the attempt, which only partially succeeded, to ground on the north bank of the river. The strength of her engines only carried her so far ashore and up the bank; with the turn of the tide she, after forty minutes, slipped into the water again. That this effort to ground her even in that position was a praiseworthy effort no one doubts. Had it succeeded the damages would have been limited to somewhere about Â£5000 When the action, however, was instituted, the “Metagama” set up a case the main elements of which had really nothing to do with the point now before this House. The appellants in defence maintained that the “Metagama” was not to blame; that defence has been abandoned, and blame is now admitted. It was only nineteen months thereafter, namely, in March 1925, that the appellants first suggested that the loss sustained was not directly due to the collision, but was occasioned by the improper handling of the “Baron Vernon” after that event. A series of allegations were made, including the important one that the “Baron Vernon” should have summoned a tug to assist her in keeping in position on the north bank. All of these averments have now been given up except one, namely, that in position No. 1 the engines of the “Baron Vernon” should have been kept going, This allegation and afterthought have been much amplified in argument, and amount now undoubtedly to a charge of negligence against the “Baron Vernon.” As upon this matter there is difference not only in the Courts below but in your Lordships' House, I propose, first, to state as briefly as possible how the facts appear to me to stand, and, in the second place, to apply the law which appears appropriate to these facts. [His Lordship examined the evidence and stated that, in his opinion, it would have been improper and dangerous to keep the engines going.]
In these circumstances I put to myself the question—What would have been said, the ship having slipped off into deep water, if the fact had been that the engines had been put or kept going? Then indeed the defenders would have had a substantive case, and would no doubt have made the most of it. They would have said, “Your ship was safe. At least the law of chances was greatly in its favour, She was gripping the land, and she lost her grip. Why did you disturb both land and water? Why did you do that?” Here would have been definite and positive proof, it would have been maintained, of a novus actus interveniens, and of active contributory negligence. It is right to put this point, because in the narrow issue which is before the House as to whether or no, not a mere error of judgment has been committed but actual negligence, it is right to look at the considerations which affect the matter from both sides. So viewing it, and quite apart from all questions as to heavy onus of proof resting on the defenders, I do not find it to be in any way established, affirmatively, that there was negligence in the navigation or handling of this vessel.
As to the law, the judgment of Lord Chelmsford in the case of “Flying Fish” still remains of outstanding authority. He confirms the opinion of Dr Lushington as to how such a case stands when a master of the vessel has been put into a position such as the master of that “Baron Vernon” was on this occasion. “It is quite true,” observes Lord Chelmsford, “as the learned Judge [Dr Lushington] has said, that ‘if there was a reasonable doubt on the part of the master whether the measure proposed, or any other measure, would have been successful, he was justified in declining to run the risk, and would not be guilty of nautical ignorance or gross negligence.’” And Lord Chelmsford himself puts the general question in this form: “Taking the whole of the evidence on both sides into consideration, can it be said that the conduct of the captain of the ‘Williem Eduard,’ after he had run his vessel on shore in consequence of the collision, did not exhibit a want of nautical skill and a gross neglect of duty?” It is quite possible to excise the word “gross” as going beyond the necessities of the proposition, but when that is done there remains a large ground in law, as I think there is in reason, for a Court of law refraining from blame, in cases of urgency and emergency, when a variety of courses may occur to the mind of those in charge. This is especially so where the interest of such persons is all in favour of saving the vessel, if that is humanly possible. I am of opinion that the Second Division came to a sound conclusion in declining to attribute such blame. Whether there was error in judgment—a point upon which I have great doubt—it is not necessary to determine, but that there was culpable, or anything sufficiently approaching culpable, negligence on the part of the pilot or the captain, I disbelieve.
In these circumstances I am for dismissing the appeal with costs.
Lord Phillimore (read by Viscount Dunedin).—The details of this case have been so adequately stated by the noble Lord, Viscount Dunedin, that it is unnecessary that I should repeat them. I may, however, state in outline the nature of the question which is submitted to us. [His Lordship narrated the facts and examined the evidence, and expressed his opinion that those in charge of the “Baron Vernon” were negligent in that they had not taken the precaution of keeping their engines going, a course which in all probability would have kept the vessel on the north bank.]
For these reasons I am of opinion that it was the fault of those in charge of the “Baron Vernon” that the vessel slipped from position No. 1, where she would have been safe, into position No. 2.
In the case of the “City of Lincoln” a sailing ship suffered such damage by a collision that it was necessary to make for a port of safety, while the collision had deprived the master of his proper instruments of navigation, and the Court of Appeal held that the striking of the vessel on a shoal might be deemed to be due to the loss of his instruments, and to be the consequence of the collision. On the other hand, we have the “Flying Fish,” a case not unlike the present. There, as here, the ship got ashore in consequence of the collision; but the fault lay in not getting her off, not, as in this case, in not keeping her on. In that case the Privy Council, reversing Dr Lushington, held that the loss which followed was not to be attributed to the collision. The Privy Council thought that he had been wrong in requiring the defendants to prove “gross nautical ignorance or gross negligence,” and concluded that there had been an omission to take a plain means of saving the ship. The judgment is, think, valuable in giving a warning against stating these cases with an assumption that subsequent damage is prima facie the result of the collision—in other words, that post hoc is propter hoc. It the “City of Lincoln” be accepted as good law, you have in it the high-water mark, as you have in the “Flying Fish” and in S.S. “Singleton Abbey” v. S.S. “Paludina ” the low-water mark, of the doctrine of consequential damage.
Whether the burden of proving that the subsequent damage followed upon the collision lay upon the pursuers, or whether it was for the defenders to disprove the consequence—which seems to me rather a question of degree than of law—I cannot assent to the view of the Lord Justice-Clerk that it was for the defenders to prove their case “beyond all reasonable doubt.” And I was glad to hear from counsel for the pursuers that they did not put their case so high. The proof, if it had to be given by the defenders, was proof of the same kind as that accepted for ordinary matters in a Court of justice. Neither can I agree with the Lord Justice-Clerk that “the ‘Baron Vernon’ was … relegated to a choice of remedies.” In my humble judgment there was no choice to make, and none was made. A duty which was reasonably plain was omitted to be discharged.
As I agree with the Lord Ordinary in his finding that it was due to the negligence of those on board the “Baron Vernon” that she moved from position No. 1 to position No. 2, so I agree with him that on the whole there was not negligence in the “Baron Vernon” getting from NO. 2 to No. 3, and that this movement may be deemed the natural consequence of her being in No. 2
It is true that this particular movement might have been prevented if there had been a heavier anchor out astern, or if a tug had been employed to tow astern during the strongest part of the flood tide. It is also true that it does not seem to have occurred to anyone that, if the “Baron Vernon” sheered inward, she would move her bow or wedge her stem outward, as, unfortunately, she did. But at this time the harbourmaster and his deputy were on the spot; and, although they were not in charge of the ship, nor did the captain cease to be in charge, as the Lord Justice-Clerk seems to have thought, and although they gave no orders, but only advice, still I think that, on the question of the direction in which the anchors should be laid, and the number of anchors, they might have given orders, and their advice, therefore, came with great weight. There was present also another adviser of nautical experience, Captain Burns, and all three gentlemen concurred in what, was being done and in not requiring anything more. True it is that they had nothing to say as to the propriety of having a tug, and this may be said not to concern them. But it is a point that no one of them recommended the employment of a tug; and, more important still, no one of them anticipated that any mischief would result from her stern swinging in. I think that the movement to No. 3 may be taken as the natural consequence of her getting into position No. 2.
[After dealing with a subsidiary matter, his Lordship continued]—It was suggested that, if the “Baron Vernon” had been placed by those in charge of her in position No. 2 immediately after the collision, and had then undergone the same misfortunes which she afterwards underwent, those in charge of her would not have been held guilty of negligence in so placing her, and her owners might have recovered for a total loss. This might have been so, because an error in judgment in a moment of sudden danger produced by a fault of the “Metagama” would not constitute negligence in those in charge of the “Baron Vernon,” as was decided in the “BywellCastle” and many similar cases by sea and land. In those circumstances there might have been no cause of complaint against those in charge of the “Baron Vernon.” They could not well help what happened. The complaint here is that, when the ship was in a position of safety, she was allowed by their supineness to slip out of it. I cannot put the matter better than by borrowing some of the homely words of an old ditty: “Had this ship remained upon the ground, she would not have been drowned.”
I am in favour of recalling the interlocutor of the Second Division and restoring that of the Lord Ordinary, with the variation in respect of interest and costs which was accepted as the outcome of the discussion at your Lordships' bar.
Lord Blanesburgh.—[His Lordship stated that he concurred in the opinions already expressed that, as regarded position No. 2, those in charge of the “Baron Vernon” had not been guilty of negligence. As regarded position No. 1, his own view was that it did not matter whether it was, or was not, due to negligence that the vessel had slipped from her position, because she could easily have been replaced in that position had it appeared to those concerned that position No. 1 was more desirable than position No. 2. In his view no one at the time was dissatisfied with position No. 2. He then continued as follows]—But while this view of the case would justify my adherence in its result to the judgment of the Second Division, I am conscious that it is a view which has commended itself to myself only. It behoves me therefore to express my opinion upon the question discussed by all your Lordships—the question, namely, whether the failure by the respondents to use the engines of the “Baron Vernon,” while she remained in position 1, amounted to negligence, to which, and not to the collision, are attributable all the consequences which followed.
This aspect of the case has been so fully dealt with by your Lordships who have preceded me, that I can express my own conclusion upon it very briefly. I observe, at the outset, that the fundamental difference here between the Lord Ordinary and the learned Judges of the Second
Division is a legal one. In the opinion of the Lord Ordinary it was necessary only for the appellants, on this point, to make out a Prima facie case of negligence against the respondents. That done, it lay upon respondents to establish that the use of the engines not only might, but would or must, have been of no avail. If this is correct in point of law, then it cannot, I think, be disputed that, assuming a prima facie case of negligence to have been made, the respondents did not succeed in proving what was required of them. On the other hand, the view of the Second Division on this point is well expressed in the judgment of the Lord Justice-Clerk, where he says that the onus was on the appellants to prove affirmatively that precautions, e.g., the use of the engines, should have been taken which were neglected, and that these precautions, if taken, would probably have been effective. If this proposition be correct in point of law, then the Lord Ordinary, as I read his judgment, would not dissent from the view that the appellants had not succeeded in affirmatively establishing what was thereby required of them.
Now, for myself, taking the. well-known case of Davisv. Garrett and later authorities which have followed it as guides, I would prefer to state the true rule in a form which lies, perhaps, between these opposing views. These authorities, I think, show that it is not sufficient for the appellants in a case like the present merely to show, as the Lord Ordinary seems to have thought, that the negligence and the injury that might flow from it did exist. It was necessary for them—and here I choose a form of words somewhat more definite than that employed by the Lord Justice-Clerk—in addition to show that the injury would in ordinary course flow from the negligence. If less is shown, the act of negligence must be regarded as otiose—as inoperative to cause or contribute to the subsequent injury. Now, this is for me a critical matter. I am in agreement, if I may say so, with Lord Dunedin in the view which he has expressed with reference to the evidence on this point of the master and the pilot of the “Baron Vernon.” The case of the respondents is, I think, prejudiced by that evidence. But, nevertheless, the appellants have not, in my judgment, succeeded in showing that, if her engines had been kept going, there was more than a remote possibility, a mere chance, that the “Baron Vernon” might thereby have been prevented from slipping. With the further help of tugs, yes; but without a tug, no. Here the appellants suffer, and I think rightly suffer, for their delay in raising this question, a delay which has indefinitely aggravated the difficulty of ascertaining with any precision the exact position of the “Baron Vernon” at the time and the details of the other factors which affect the result. On the whole case, therefore, I am of opinion with the noble Viscount on the woolsack that this particular charge in relation to position 1 has failed, as have all the others. Accordingly, I also am for dismissing the appeal.