to have done, but that was not the cause of the accident; the cause was that the 'Margaret,' knowing where the 'Clan Sinclair' was, attempted to pass between it and the 'Zephyr' where there was not sufficient room. Lord Watson delivered judgment to the same effect. The principle of this decision has been many times applied. I shall only refer to one case. It is the case of H.M.S. "Sans Pareil," [1900] P. 267. It was held there by the Court of Appeal that as a matter of seamanship it was improper for the tug and tow which collided with the "Sans Pareil" to attempt in the circumstances, as they did attempt, to pass across and ahead of the fleet, of which the "Sans Pareil" formed part, but the appeal was dismissed on the ground that the common law doctrine of contributory negligence as applied in the "Margaret" (Cayzer v. Carron Company, 9 App. Cas. 873) applied here, and that though the tug and tow had been guilty of negligence in keeping on, yet the defender was not hampered by the other vessels of the fleet, and might by the exercise of ordinary care and diligence have avoided the collision. At page 283 of the report Lord Justice A. L. Smith referred to the law of contributory negligence as laid down by Lord Penzance in Radley v. London and North-Western Railway Company (1 A.C. 754), and said it was qualified thus, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result by the exercise of ordinary care and diligence have avoided the mischief which happened, the plaintiff's negligence will not excuse him." He said "the case of the 'Margaret' (9 App. Cas. 873) shows that the common law doctrine is case as that now applicable to such a before us.

Even, therefore, if I assume that the "Bogota" and her tug the "Samson" had transgressed one or more of the Clyde navigation rules, and were therefore guilty of negligence in getting into the position in the river in which they lay when the collision occurred, I have to ask myself, as Lord Blackburn had to ask himself, in the case of the "Margaret," was this negligence the cause of the collision? In this case the position of the "Bogota" must have been known to those navigating the "Alconda.' The "Bogota" had given the proper whistle to indicate that the river was blocked by her and her tug. The pilot on the "Alconda" heard the signal, knew what it meant, and communicated his opinion to the captain, yet with all this knowledge that the river was blocked the "Alconda" did not check her speed but recklessly steamed ahead as if the river in front of her was perfectly the chance clear, relying apparently on that she might have been able to pass 50 feet wide, which separthrough the gap, ated the tug "Samson" from the southern bank of the river. That was a wrong and reckless proceeding on her part. In the result her commander had not the skill or courage to effect his purpose. There was apparently nothing to prevent her slowing

down or stopping to give the “Bogota" time to get turned up stream and get out of her way. (See finding No. 21.) That might have amounted to the exercise on her part of ordinary care, caution, and diligence to avoid the consequences of the "Bogota's" contributory negligence which I have assumed existed, but the "Alconda" made no effort to do anything of the kind. The cause of the collision was therefore, in my view, the reckless and dangerous action of the "Alconda" in steaming up stream at the rate and in the way she did in utter disregard of the warning she had received. I therefore think that she was alone to blame, and the appeal fails and should be dismissed with costs.

LORD SHAW-In my view the construction placed upon rule 19 by Lord Dunedin is sound, namely, that the rule truly and only forbids vessels-even if one assumes them to be engaged in the operation of crossing the river-from getting into the way of upgoing or downgoing craft. Such a construction appears to me, further, to be consistent with the other provisions of the local code and with the fair requirements and combination of dock and river traffic, and its application will depend upon a fair view of all the facts as these may apply to an emergent vessel.

I cannot see my way to hold that the "Bogota," which had 285 feet of her length emerging into the river and 150 feet of her length still within the dock gates, the river being both up and down clear up to that point, was contravening the rule. I must, however, add that I would not see my way to hold that she was engaged in crossing the river towards the other side. She was in point of fact being manoeuvred in order to straighten up. Nor could I see my way to hold that such a vessel being towed out from her stern and not even free from the attaching ropes, handled from the dock side, and no proportion of her under steam being operated, can be reckoned to be a vessel crossing to the other side of the river under her own steam. So that upon both of these fundamental points I also hold that rule 19 would not apply to the situation under consideration. But in truth in the view which I take of this case it is really unnecessary to pronounce upon that rule.

I venture to hold that the action of the "Alconda" was wholly and solely to blame for the collision that occurred, and that for the following reason :-The "Bogota " had only partially emerged from dock as above described up to the moment when the river both up and down was clear. At that point, however, the "Alconda" hove into view, and at once the "Bogota" sounded four blasts signifying that she was an obstruction, the tug Samson" repeating these blasts. These signals were heard by the "Alconda." They were not mistaken, and it was known to the "Alconda" that de facto an obstruction was in the river. No question of collision came into play prior to that moment, and the problem only began to arise when the "Alconda came up the

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river to all intents and purposes regardless of the obstruction altogether.

The Court below most properly held in my opinion that the "Alconda was solely to blame. My opinion is that partial or contributory blame can only be assigned to the 'Bogota" if, subsequent to the given and accepted notice of her being an obstruction, the "Bogota" did something to contribute to or fail to minimise the collision which was being precipitated by the reckless advance of the "Alconda." It is not in the view which I take sufficient in law to say that the "Bogota" should not have been, on the view that rule 19 applies, crossing the river, for it is not suggested that she was crossing the river in any sense which was faulty, and, so far as the "Alconda " and the collision are concerned, the "Bogota" from the time that the vessels sighted each other was in the river as an obstruction, known by the "Alconda" to exist, and therefore to be avoided.

The principle does not apply to shipping law alone but to all the law of contributory negligence, from Davies v. Mann downwards; and I take the principle to be that although there might be - which for the purpose of this point I am reckoning that there was - fault in being in a position which makes an accident possible, yet if the position is recognised by the other prior to operations which result in an accident occurring, then the author of that accident is the party who, recognising the position of the other, fails negligently to avoid an accident which with reasonable conduct on his part could have been avoided. Unless that principle be applied it would be always open to a person negligently and recklessly approaching and failing to avoid a known danger to plead that the reckless approach to encountering of danger was contributed to by the fact that there was a danger to be encountered. There is a period of time during which the causal function of the act or approach operates, and it is not legitimate to extend that cause backwards to an anterior situation. The anterior situation may be brought about either innocently or by some mistake, but if it has nothing to do with the subsequent operations which contributed to produce an accident or collision, it is not legitimate to treat it as a contributory in liability for the result thus produced.

8.8.

In Admiralty Commissioner v. "Volute, [1922] I A.C. 136, Lord Birkenhead, then Lord Chancellor, in a valuable judgment applies this principle- "In all cases of damage by collision on land or sea there are three ways in which the question of contributory negligence may arise. A is suing for damage thereby received, He was negligent, but his negligence had brought about a state of things in which there would have been no damage if B had not been subsequently and severably negligent. A recovers in full." That appears to me completely to fit the situation of the "Bogota," even on the assumption that she had contravened rule 19, as I do not think she had. The whole cause of collision arose from a subsequent and severable negli

gence on the part of the "Alconda "--that is to say, negligence arising subsequent to the known existence of the obstruction, and severably caused by the "Alconda's " approach to and collision with that obstruction.

I therefore think it right to set down again the language of Lord Chancellor Selborne on this topic, used also in a case of shipping collision-Spaight v. Tedcastle (L.R., 6 (H.L.) 219)-" Great injustice might be done if, in applying the doctrine of contributory negligence to a case of this sort, the maxim causa proxima, non remota, spectatur were lost sight of. When the direct and immediate cause of damage is clearly proved to be the fault of the defendant, contributory negligence by the plaintiffs cannot be established merely by showing that if those in charge of the ship had in some earlier state of navigation taken. a course, or exercised a control over the course taken by the tug, which they did not actually take or exercise, a different situation would have resulted, in which the same danger might not have occurred. Such an omission ought not to be regarded as contributory negligence if it might in the circumstances which actually happened have been unattended with danger but for the defendant's fault, and if it had no proper connection as a cause with the damage which followed as its effect."

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In the present case accordingly I think that the question which is truly relevant on the point of partial liability is whether the conduct of the Bogota" and her tug in the river, subsequent to the stage when they were there recognised to be obstructions, did something to precipitate or partially to cause the collision. It is for this reason that I think the House is greatly helped by two findings which establish, first, that the "Bogota " even although she had been crossing the river did so leaving quite enough of room, namely, 100 feet, within which the "Alconda "if she was determined to pass her could have done so with complete safety; and secondly, that there was nothing which the "Bogota" or her tug did or could have done to avoid the collision so swiftly brought about by the "Alconda's approach. These findings are as follows: "That the collision occurred about 100 feet from the south bank, and that the Alconda' could have manoeuvred in safety to within 50 feet of that bank," and "that the 'Samson' from the position in which she was could not do anything to escape the collision, and was at the time doing her utmost to keep the 'Bogota's' stern to the north against the tide in conformity with her orders from the 'Bogota.'

It therefore appears to me that the judgment of the Court below was completely justified to the effect that the "Alconda" was wholly in fault.

Upon the point of procedure--this case having originated in the Sheriff Court, and raising the question as to findings in fact or mixed law and fact, and our duty in the House in such circumstances-I also fully agree with my noble and learned friend on

the Woolsack. I should add to the authorities which he cites the decision of Lord Kinnear in Black v. Fife Coal Company in this House.

I think that the appeal should be dismissed with costs.

LORD PHILLIMORE-I have read the opinion of the noble Lord, Lord Dunedin, and I concur with his conclusion and upon the whole with his reason for it. It may be a refinement of thought, but I should reach the same conclusion by a slightly different way more nearly resembling the reasoning of the noble and learned Lord, Lord Shaw.

All rules relating to navigation by one ship with reference to another ship (rules to prevent collision) assume the existence and the duty to know of the existence of the second ship as being sufficiently near in time and space to require consideration.

If there is no other ship in that part of the Clyde, a vessel may cross or proceed up or down in any part of the channel, may keep her course or change it, go ahead or astern, festoon herself with lights or proceed with none, scream with her whistles or be entirely silent,

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Now in this case when the "Bogota" started to leave the dock there was, according to the findings of the court below by which we are bound, no vessel in existence sufficiently close for the "Bogota" to have any duty towards her. Or one might qualify this by saying that if there was any such vessel in existence she had not given such notification of her presence as to make it the duty of the Bogota" to know of her existence. The " Bogota" therefore lawfully came out of dock, although the coming out of dock may have meant, as I should think, that she would be crossing the river and crossing under steam, and she was entitled to go on with her manoeuvre till the time came when it was her duty to be conscious of the existence of another vessel. That time, according to the findings (one may be allowed some private doubt whether they are correct but we are bound by them), did not arrive till the "Bogota" had got into such a position that she was helpless to do anything on her part to avoid a collision; and therefore though she may have been "crossing the river under steam," and therefore within the apparent compass of rule 19 she had never come under rule 19 before the time came when that rule was superseded by rule 3, and the duty of avoiding collision was shifted from her to the other vessel.

LORD BLANESBURGH-As explained by the noble Lord on the Woolsack the effect of the 40th section of the Judicature Act has been to withdraw from your Lordships' cognizance many matters which were in controversy between the parties in the Court of Session, and the appellants now face this House with the admission that unless they establish that rule 19 of the Clyde Regulations was applicable to the "Bogota when she first sighted the "Alconda," they can no longer contend with success that the "Bogota" was in any way responsible for the collision which ensued.

In the view which I take of the whole facts found by the Court below the appel lants would be no nearer success in their appeal if they were to establish the proposition on which they stake its fortunes.

Accordingly I hesitate to follow them in their argument. Their appeal must, I think, fail whether it is well founded or not, and if I do go into the question it is only out of deference to the fullness with which it was canvassed before your Lordships by counsel on both sides.

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Now, although one must be struck with the inaptness of the language of rule 19 to describe the operation in which the Bogota" was engaged at the time, I am prepared to hold as a mere matter of words that the "Bogota " was then crossing, proceeding under her own steam, towards the other side of the river. My own opinion, however, is that if you consider rule 19 in its relation to the other regulations of the Clyde Trustees you find it was not rule 19 with its attendant responsibilities but rule 18 with its implied attendant privileges that then applied to the "Bogota.'

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It must, I think, be agreed, as I have said, that the operation on which the Bogota" was engaged is not described with any aptness in rule 19. She was not in real truth crossing towards the other side of the river. She was in fact coming out of dock. For such a vessel as she it is rule 18 that makes provision.

The significance and necessity of such a general regulation as rule 18-to the terms of which I will presently return-is illustrated by the position of the "Bogota" at the moment when the "Alconda was sighted by her. She had then emerged from the dock stern first to the extent of from one-half to two-thirds of her length. She could have held on by her ropes still attached to the quay or she could proceed with her manœuvre. But one thing she could not do-and this is all important- she could not return to the dock nor withdraw from the northern half of the river any part of her hull which had passed into it. In other words, in the course of a common and ordinary evolution she was powerless to keep out of the way of any vessel coming down the river, and so soon as her stern had crossed the middle line of the stream she was powerless to keep out of the way of any vessel coming either up or down until her manoeuvre had been completed.

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Now rule 18 applies to all vessels coming out of any dock on the river. The Bogota" is 415 feet in length. There must be many vessels using graving docks on the Clyde of equal and even greater length. The river at Elderslie is 500 feet wide. There must be other docks on the Clyde where the river is no wider. This dock enters the river at an angle of 30 degrees to the west. There must, I should suppose, be other docks where the angle of approach is more direct. In other words, rule 18 deals with an operation which time and again cannot be completed without an obstruction quite unavoidable being occa sioned to the river traffic, both up and down, and as the emerging vessel can on

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these occasions only avoid causing obstruction by not emerging at all, the necessary assumption, in the absence of a regulation prohibiting all emergence whatever from a dock unless the river is clear in each direction, must be that the passing traffic is to keep clear of the emerging vessel, and this, as I read it, is the foundation on which rule 18 rests. The rule is as follows:"Vessels coming out of dock shall signify the same by a prolonged blast of the steam whistle of not less than five seconds duration, and in cases where a vessel is not under steam the tug boat in attendance shall make the same signal." The rule, it will be seen, is in the most general terms. Unlike rule 19 it applies indifferently to all vessels -whether sailing vessels or steamships, whether under steam or not under steam. It places no restriction upon a vessel's emergence from a dock, but it requires every such vessel to announce its approaching advent into the river by a prolonged warning blast. Why, it may be asked, is that obligation imposed? The answer surely is in order to give to all passing vessels an opportunity of keeping out of her way, and that as much if she is a steamship" under steam" as if she is not a steamship at all. But why again should these vessels be required to think of her, if being a steamship "under steam" she, upon the hypothesis that rule 19 applies to her, is bound to keep out of their way? The answer, as it seems to me, again must be that rule 19 has no application to such a case. Even standing alone the necessary implication of rule 18, I think, would be that to every vessel coming out of dock vessels navigating up and down the river and duly warned shall give place. But that that is its true implication is confirmed by rule 103 of the Clyde Regulations to which I have referred since the argument at your Lordships' Bar. That rule in its last sentence provides as follows:-"No vessel when being taken into or out of a graving dock, or ship basin, or to or off a slip dock shall be allowed unnecessarily to obstruct the navigation or interrupt the passing of other vessels." The right of such a vessel to obstruct or interrupt, so far as is necessary, is, it will be seen, there assumed.

Now, if the necessary implication of rule 18 be what I have stated, it becomes apparent that a vessel under steam cannot be governed both by rule 18 and by rule 19 at the same moment. The rules are quite inconsistent. Her express obligation under the latter rule would be destructive of ard would render nugatory her privileges under the former. If, then, a choice must here be made between rule 18 and rule 19 as the rule applicable to the "Bogota," there can, I think, be no doubt where the choice lies. Rule 18 in terms covers her case; rule 19 only barely touches it.

A

This conclusion imports that rule 19, notwithstanding the apparent generality of its terms, is really restricted; in its range. perusal of the Clyde Regulations as a whole shows that this is the fact. A striking illustration may be taken from an observa

VOL. LXI.

tion made by the Sheriff-Substitute in the note to his interlocutor.

"Rule 19," he says, "is of course not limited to ferry boats." The learned Sheriff-Substitute, not perhaps unnaturally, assumed that the rule was primarily applicable to them. A perusal of the regulations, however, shows how far this is from being the case. Steamships on the Clyde have to keep clear of ferry boats at their peril. Regulation 102 provides as follows:-"Every master or other person in charge of a steam vessel when approaching any of the ferries on the river, shall, at least 200 yards from the ferry, slow the engines and proceed dead slow until the ferry is passed. It will, I think, be agreed that general as is the language of rule 19 it has much less relation to the operation in which the "Bogota' was engaged on this afternoon than it has to the crossing of a ferry boat. This last, however, is not apparently intended to be covered by it.

In regard to the position on the river of a vessel coming out of dock there is a passage in the Lord Justice-Clerk's judgment which is not without interest in this connection. It is where he refers to a statement made in evidence by the pilot of the 'Bogota” that in his experience he had never seen a vessel trying to pass another which was in course of coming out of dry dock. This statement of course, even if your Lordships could treat it as a fact found-and that is not open to your Lordships-could not affect the true construction of printed regulations. I refer to it only as describing what I may call the normal courtesy of the river extended to vessels more or less hampered in their movements in the course of an experience which every vessel is from time to time called upon to undergo. If so, this is not the first time that rules of courtesy have been based upon and go only a little beyond the rules of obligation, which by the regulations, as I construe them, are imposed upon these passing vessels. I mention, merely to show that I have not overlooked the fact, that the "Bogota" did not give a prolonged blast of the whistle before leaving the graving dock as prescribed by rule 18; she and her tug each gave three short blasts instead. It is found, however (finding 9), that the failure to give the long blast had no bearing on the subsequent collision. In other words, if rule 18 with its necessary implications is the rule applicable, the "Alconda" derives no advantage from the fact that its provisions were not in this respect observed by the "Bogota."

In the application therefore of rule 18 to the case you have a complete answer to the appeal.

But there is to my mind still another. There is, I think, in the stated circumstances enough to dispense the "Bogota from the obligations of rule 19 if, contrary to my own view, that rule really applied to her.

I have already stated what the position of the "Bogota" was at the moment when the Alconda" was first sighted by her.

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NO. XXX.

It results from that statement, if correct, that she was then in relation to any vessel coming down the river, in the language of rule 3,"out of command," if by the compelling force of rule 19 she stood bound by remaining stationary to keep clear of the "Alconda" coming up the river.

Was she so bound? I have some difficulty in seeing how to a vessel so placed rule 19 continued to apply. Like all similar rules the rule must be reasonably construed. Its proper sphere, as I hope I have shown, is a narrow one. But of it this can, I think, at least be said, that the rule implies that the crossing steamer, which is by its terms obliged to keep out of the way of all vessels whether navigating up or down the river, shall not be entitled to require any of these vessels to keep out of her way, shall not be entitled, in other words, to hold them up. For, note the consequences if the rule applies to a vessel so entitled. However crowded the traffic in her own half of the stream, however insignificant the traffic in the other half, it would remain her duty indefinitely to block the first flow of traffic, in order that under the rule the second trickle might have free course and passage. The rule does not, in words, cover such a state of things. On the contrary, it imposes upon the crossing vessel obligations which negative its exist. ence, and if, for instance, the approach to the Elderslie Dock on this afternoon of the Spanish steamer the "Artivi Mendi " coming down the stream had, instead of preceding, synchronised with the approach of the "Alconda" coming up, I cannot myself doubt that it would under rule 3 have been the duty of the "Artivi Mendi" to keep clear of the "Bogota" - which thereupon became dispensed from any obligation under rule 19 of keeping clear either of her or of the "Alconda." In the present case, however, there was no vessel actually coming down the stream at the time. The "Bogota" delayed coming out of dock until the river was clear in both directions, and by the time she was committed to her manoeuvre it was a vessel coming up the river and not one coming down that first presented itself. Does this fact alter the whole case? For myself, I think it should not. I take the effect of rule 19 to be that where a manoeuvre, such as the "Bogota's," has in propriety been commenced, and where it has so far proceeded as to make withdrawal to the status quo ante out of the question, the possibility even of approaching traffic on her own side of the river from which she is neither able nor bound to keep clear except by completing her manoeuvre is sufficient, on due warning under rule 3 being given, to exclude her from the obligations of rule 19 in relation to all vessels whether coming up or down. I cannot doubt that it was on this view of her position that the “Bogota acted when she sounded her four blasts and proceeded with her manoeuvre, and I am not surprised that those on board the "Alconda" apparently without hesitation conceded that position to her. I am of opinion therefore that for one reason or

another rule 19 is out of the case.

But I fully recognise that in this matter there is room for difference of opinion. I will accordingly now assume, contrary to my own view, that the "Bogota" on this occasion was bound by rule 19, and that in view of the "Alconda's" approach she was in fault under that rule in advancing over the middle line of the river. Even so, as I have already indicated, I am of opinion that the "Alconda " was on the facts stated by the Inner House alone to blame for the subsequent collision between herself and the Samson." These facts have already been set forth. I need not repeat them.

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There is no dubiety as to their effect. They show on the part of the “Alconda” a complete appreciation of the position of the "Samson and her tow-an acquiescence in their claim after signal given to block the river, and a decision notwithstanding to go on at the same speed instead of stopping as was quite feasible. And all this was done in the belief that the "Alconda" could pass to the south of the two vessels in safety. The collision was the direct result either of the failure on the part of the "Alconda" to stop and hold back, as she could and ought to have done if there was no room to pass, or it was due to her negligent navigation in not taking advantage of the passage sufficiently wide to enable her to pass in safety. Her liability, this passage being sufficiently wide, differs in degree and not in kind from what it would have been had the stern of the "Samson" been to the north of the middle line of the river, and had the "Alconda negligently starboarded into

her.

The "Volute," in your Lordships' House ([1922] 1 A.C. 129) is now the locus classicus on this subject. It has made no alteration in the law as previously understood in relation to facts like these. My noble and learned friend Lord Shaw has referred to the passage from the Lord Chancellor's speech in which he reaffirms the law. Applying that language, I cannot doubt on the facts stated that even if the "Bogota were originally at fault "there would here have been no damage had not the 'Alconda been, as she was, subsequently and severably negligent." She is therefore liable for the whole damage.

I have only to add that had I felt constrained to hold that the "Bogota" was partly to blame for this collision I should in restoring the order of the learned SheriffSubstitute have desired to modify it, as suggested in the opinion of Lord Ormidale, with whom alone in the Second Division the contentions of the "Alconda" found favour. On any view of the case the fault of the "Bogota," as contrasted with that of the "Alconda," was venial and slight. From first to last the proceedings of the "Alconda." whether they be regarded subjectively or objectively, were without justification or excuse. The blame attaching to her greatly preponderated, and I should have agreed with Lord Ormidale in thinking that she should bear three-fourths of the resulting damage.

On the whole, however, I am of opinion