For these reasons I think that the Lord Ordinary was right when he decided that Mr Stevenson was not disqualified from acting as arbiter and that the pursuers' 7th and 8th pleas should therefore be repelled. In repelling the pursuers' 5th plea in law I do not understand that the Lord Ordinary intended to do more than affirm that prima facie the claims referred to in the action fall within the reference clause. Crawford Northern December 18, There is only one other word of explanation 1ST DIV. I would venture to make, stating my own view on a matter adverted to by your Lordship Bros. v. in the chair, viz. the question of whether this Commisdispute in view of the date of its emergence sioners of falls within the first branch of the arbitration Lightclause. I prefer to base my opinion on the fact houses. that the real dispute upon which the whole matter hinges emerged before the pursuers 1928. withdrew from the execution of the work Lord Cullen. I have come to the same rather than upon the ground that the contract conclusion. As your Lordships have pointed is to be regarded quoad hoc as still in the course out, the arbitration clause is a special one, of execution. With that qualification and inasmuch as it contains two separate references reservation I agree with your Lordship in the to different arbiters, operating at different chair. stages. The second of these covers disputed questions or claims arising after or consequent Counsel for Pursuers, D. P. Fleming, K.C., on the completion of the contract as executed, S. M'Donald; Agents, Fyfe, Ireland & Co., W.S., and the arbiter there named is Mr Tait. One and MacRobert, Son & Hutchison, Solicitors, of the arguments advanced for the pursuers Paisley.-Counsel for Defenders, Macmillan, was that the disputes which are involved in this K.C., Carmont; Agents, Waddell, M'Intosh & action fall under that reference to Mr Tait. Peddie, W.S. But it seems to me quite impossible to hold that that is so, in view of the words arising after or consequent on the completion of the contract as executed.' On the other hand, I think that the way in which this second stage of arbitration is defined throws light on the first, because it appears to me that the fair reading of the clause is that the scope of the reference to Mr Stevenson is intended to extend in time to the period when the reference to Mr Tait begins. On that footing, I see no escape from 25. Owners of S.S. "Rowan" v. Owners of 66 the defenders' contention that the questions here at issue fall under the reference to Mr Stevenson. With regard to the second point taken by the pursuers as to disqualification, it appears to me that, unsatisfactory as the result may be, the authorities in Scotland do not enable that point to be maintained. Lord Sands. I agree with your Lordship in the chair, subject to the reservation of opinion expressed by Lord Skerrington. I can quite conceive that in the course of the arbitration some matter will emerge which is appropriate for the determination of the Court, in which case, of course, the parties will return to Court and the sist will be recalled if it be made good that such a question has emerged. One of the English cases to which we were referred deals with the disqualification of the arbiter because he is a necessary witness. Now, I think that there may be room for discrimination between the case where the question, though a matter of fact, is one as to the condition of certain works, or the state of certain rocks, and the other kind of case where there is a sharp controversy as to some negotiation or arrangement with the arbiter himself. I desire to reserve my opinion on the question. HOUSE OF LORDS. M. D. (Lords Dunedin, Atkinson, Shaw of Dunfermline, 18th December 1923. S.S. "West Camak," et e contra. Ship— Collision — Fog- "Agony rule"-Delay esti mated at three seconds in giving correct order-Of HOUSE steamer "West Camak," the property of the OF LORDS. appellants. 66 'Rowan' 99 of S.S. 1928. It is satisfactorily proved that the second order superseded the first at so short an interval that Owners. The "Rowan was bound, carrying the mails, no alteration on the direction of the vessel was of S.S. from Glasgow and Greenock to Belfast, and was, effected by the starboard helm. It is also at the time of collision, steering a course S.W. admitted by all that the order given upon the v. Owners by S.S. The "West Camak," which had appearance of the red light was the proper "West come from America, was bound for Glasgow and, order. The account given by those on board Camak," at the time of collision, was steering N. There the "Rowan" was that the West Camak et e contra. was a dense fog at the time. The "West only appeared when a collision was obviously December 18, Camak had previously to the collision been imminent; that upon the appearance of the enveloped in fog for some time; the "Rowan " West Camak" the order was given to put the had only recently arrived in the fog area. At helm hard a-port until immediately before the the time of the collision the 66 "" Rowan was collision, when the order was to put the helm going at full speed, which was 13 knots. The hard a-starboard in order to throw off her West Camak was going very slow, at from stern and minimise the blow. The engines 3 to 4 knots. The "Rowan was sounding no were maintained at full speed. The manœuvre signal, the West Camak was sounding her of the Rowan," so far as manœuvre is confog siren. Cross actions were raised by the cerned, is agreed to have been in the circumowners of the two ships and were conjoined. stances right. None the less the collision Lord Anderson, before whom the actions occurred some forty seconds after the West depended, after proof led, found that the Camak " had seen the white light. The "West Rowan was solely to blame for the collision. Camak's " bow struck the port side of the stern On a reclaiming note the First Division recalled of the "Rowan some 15 or 20 feet from the that interlocutor and found both vessels to end of the vessel. It is contended by the blame, but apportioned the loss two-thirds to respondents that the proper order for the the Rowan and one-third to the West West Camak to have given, the moment Camak." Appeal has now been taken by the the white light was seen, was the order subseowners of the "West Camak" to your Lord-quently given, namely, "helm hard a-port and ships' House. 66 66 For a vessel to proceed in fog at full speed without sounding her whistle or siren was clearly wrong, and the respondents have not sought before your Lordships to excuse themselves. The only point debated is whether the West Camak was also to blame. In the matter of speed and of sounding her signals there was no cause for blame. The whole point depends on the manœuvre immediately before the collision. Now the account of the incidents leading up to the collision as given by those on board the "West Camak is clear, and no question has been raised as to credibility. The Lord Ordinary believed the witnesses, and the learned judges of the Inner House are content with the story as told by them. It is as follows: engines reversed," and that the erroneous order of helm hard a-starboard," with no order to the engines, was a material contributing cause to the collision. Now so far as the helm is concerned, inasmuch as the "hard a-starboard order was countermanded before it had any effect on the vessel, that order may be disregarded. The point is therefore reduced to the simple question: Was the delay of three seconds from the time the white light was seen till the appearance of the red light in ordering the engines to be reversed such negligence on the part of the master as to infer liability on the part of the ship? I do not doubt that when a vessel is proceeding in fog and sees a white light ahead the proper order, however slow the vessel is going, is to stop and reverse. But it has been laid The master of the West Camak was on down again and again that when a situation the bridge. The ship was proceeding as suddenly occurs which demands a manœuvre, already mentioned cautiously on a north the person in charge of the ship at the moment course, when suddenly the look-out sounded cannot be condemned if he does not act quite three bells, indicating something ahead, and at instantaneously. He is entitled to an interval, the same time the master became aware of a however short, and it must be short, for his white light half a point on the starboard bow. mind to grasp the situation and to express This was, as it turned out, the masthead light itself in an order. This was laid down in of the "Rowan." He estimated it at about clear terms by Butt J. in the " Emmy Haase” 1200 feet away. The moment he saw it he ((1884) 9 P.D. 81), and the same was repeated gave the order Hard a-starboard." Almost in the Judicial Committee in the case of the immediately thereafter, the period elapsed being" Kwang Tung," ([1897] A.C. at p. 393). calculated at about three seconds, he saw a red light and he then instantaneously ordered "Hard a-port and stop and reverse engines." to exclude the idea of negligence in not having given it sooner. The respondents argue from the event that the ship was struck so very near the stern that three seconds would have made all the difference. That might have been so, though it would be difficult to affirm categorically that it would, but the only reason why this very short time would have made all the difference is to be found in the excessive speed of the "Rowan" itself. Accordingly, the "" Rowan is hit by a consideration analogous to that which prevailed in the well-known case of the "Bywell Castle" and many others; namely, that it is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in the danger. I am therefore of opinion that the judgment of the Lord Ordinary was right and should be restored. The respondents must pay the costs of the appeal. Lord Atkinson.—I concur. Lord Shaw of Dunfermline [read by Lord Phillimore].-I entirely agree with the judgment pronounced by my noble and learned friend on the woolsack. The Rowan was to blame, grossly to blame, navigating as she was at full speed through a dense fog. That is admitted. The master of the "West Camak," suddenly discerning a white light slightly on his port bow and only 1200 feet away, in the agitation of the moment gave the order to starboard the helm and within three seconds gave the order, "Hard a-port and stop and reverse engines." The first order was erroneous, but it is proved beyond doubt that it did not deflect the course of the vessel, the second order having followed within three seconds. The case is accordingly one in which no act of bad seamanship brought the vessels together. With regard to the second and the correct order, the House has to judge not so much a question of seamanship as & question of psychology. The issue is whether the master of the "West Camak" should have given the order to port the helm and reverse the engines within a less time than three seconds from the moment when he suddenly discerned the white light. a HOUSE OF LORDS. of S.S. 1998. but gave that right order too late by the twentieth part of one minute. I do not see my way to hold in law that that brief and frag- Owners mentary period of time for consideration, or of S.S. before the correct order in the emergency was "Rowan " given, can be held to be blameworthy conduct Owners or legitimately entered as negligence contri- "West buting to the collision. I have always held the Camak," Bywell Castle (4 P.D. 219) to be a case of et e contra. the highest authority, and I will conclude my December 18, own opinion by saying that I think the language of the three great judges, namely, James, Brett, and Cotton L.JJ., may be said to apply in terms to the present case. For instance, Brett L.J. says (at p. 226): "I am clearly of opinion that when one ship, by her wrongful act, suddenly puts another ship into a position of difficulty of this kind, we cannot expect the same amount of skill as we should under other circumstances. The captains of ships are bound to shew such skill as persons of their position with ordinary nerve ought to shew under the circumstances. But any Court ought to make the very greatest allowance for a captain or pilot suddenly put into such difficult circumstances; and the Court ought not, in fairness and justice to him, to require perfect nerve and presence of mind, enabling him to do the best thing possible." How analogous in point of fact the "Bywell Castle was to this case may be seen from the language used by James L.J., namely: "Then there comes the very last thing that occurred on the part of the Bywell Castle,' which is that she, in the very agony, just at the time when the two ships were close together, hard a-ported. The judge and both of the Trinity Masters were of opinion that that was a wrong manœuvre. I understand our assessors to agree in that conclusion, but they advise us that it could not, in their opinion, have had the slightest appreciable effect upon the collision. That view, if adopted by us, and I think that it should be adopted, would be sufficient to dispose of the case upon the question of contributory negligence. But I desire to add my opinion that a ship has no right, by its own misconduct, to put another ship into a situation of extreme peril, and then charge that other ship with misconduct. My opinion is that if, in that moment of extreme peril and difficulty, such other ship happens to do something wrong, so as to be a contributory to the mischief, that would not render her liable for the damage, inasmuch as perfect presence of mind, accurate judgment, and promptitude under all circumstances are not to be expected. You have no right to expect men to be something more than ordinary men.' We are not dealing with the psychology of a superman but simply of a ship's captain. One is familiar only too often with cases of collisions being brought about by rashness owing to want of due consideration as to the order to be given, but the present case is different. It is ascribed to the opposite of rashness, and is so minute in its apportionment of blame as this, that the captain of the "West I have thought it right to cite these very Camak" gave the right order in an emergency authoritative judgments because, if the doctrine HOUSE there laid down be lost sight of, a region of OF LORDS. refinement is apt to be entered upon under Owners which the true responsibility for the substantial of S.S. wrongdoing may be improperly whittled down "Rowan" and a fanciful wrongdoing may be raised imof S.S. properly into the region of substance as a "West contributing cause. Camak," V. Owners et e contra. Lord Phillimore.-I have a lingering suspicion December 18, that all was not so well on board this American 1923. vessel as appears. But on the findings at which the Lord Ordinary has arrived, which the Court of Session has accepted and which your Lordships are in no position to disturb, the conclusion to which the Lord Ordinary came was right, and his judgment should be restored. Lord Blanesburgh [read by Lord Dunedin].I have had the advantage of seeing in print the judgment just delivered by the noble Lord on the woolsack. I entirely concur with it.. Counsel for Appellants, Butler Aspinall, K.C., Carmont; Agents, Beveridge, Sutherland & Smith, W.S.; Fyfe, Maclean & Co., Writers, Glasgow; Thos. Cooper & Co., London.-Counsel for Respondents, The Dean of Faculty (Sandeman, K.C.), Bateson, K.C., Normand; Agents, J. & J. Ross, W.S.; Maclay, Murray & Spens, Writers, Glasgow; Botterell & Roche, London. Process-Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), as amended by the Sheriff Courts (Scotland) Act, 1918 (2 & 3 Geo. V. cap. 28), First Schedule, Rules 22, 34, and 35-Sheriff Court-Irregularity of procedure Execution of citation on principal writ bearing date 7th September 1922-On service copy date erroneously given as 6th September 1922Prior to expiry of induciæ defender exhibiting to sheriff-clerk service copy writ and lodging notice of appearance On case being called on first Court day after expiry of induciæ com mencing on 6th September 1922 (15th September 1922) no appearance made for pursuer-Case accordingly dropped from roll, and defender, in belief that pursuer had abandoned her action, taking no further steps-On first Court day after expiry of induciæ commencing on 7th September 1922 (29th September 1922) case called at instance of pursuer, who was ignorant of the proceedings on 15th September 1922, and, in respect of no appearance for the defender, decrees subsequently pronounced against him-Pursuer charging upon said decreesDefender bringing note of suspension-Held that said decrees were obtained illegally and prayer of the note granted. Note of Suspension. On or about 5th September 1922 Annie Gorman, of 9 Shawhill Street, Pollokshaws, Glasgow, raised an action in the Sheriff Court there against William Wilson, junior, 32 Maxwell Street, Pollokshaws, Glasgow, for, inter alia, payment of inlying expenses and aliment in connection with the birth of an illegitimate child of which she alleged the said William Wilson was the father. After sundry procedure, the Sheriff-Substitute on 11th October 1922 pronounced decree as craved, and on 1st December 1922 decerned for the taxed amount of the expenses. Both decrees were extracted, and the said William Wilson was charged to make payment of the sums therein contained. 66 On 23rd February 1923 the said William Wilson presented the present note of suspension in the Bill Chamber craving the Court simpliciter to suspend the said pretended decrees and charges and whole grounds and warrants thereof and all that may follow thereon. Answers were lodged on behalf of the said Annie Gorman, and on 15th June 1923 the Lord Ordinary officiating on the Bills passed the note and granted interim sist of execution on caution or consignation. A record was thereafter made up and closed, and the case was heard in the Procedure Roll on 29th November 1923. The facts of the case are sufficiently set forth in the opinion of the Lord Ordinary. The Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), as amended by the Sheriff Courts (Scotland) Act, 1913 (2 & 3 Geo. V. cap. 28), enacts: First Schedule, Rule 5. Actions shall proceed upon seven days' warning or inducia when the defender is within Scotland. First Schedule, Rule 22. If a defender intend to state a defence he shall (except in a summary cause), before the expiry of the induciæ, exhibit to the sheriff-clerk the service copy of the writ and lodge with him a notice of appearance in the following terms: First Schedule, Rule 34. Where appearance has been entered the sheriff-clerk shall enrol the cause for tabling on the first court day occurring after the expiry of the induciæ. First Schedule, Rule 35. An action which has not been tabled, and in which protestation has not been craved, shall drop from the roll, but within three months the sheriff may direct it to be again enrolled for tabling under such conditions as to notice, or re-service, or expenses, or otherwise as he shall think fit. On 6th December 1923 the Lord Ordinary granted the prayer of the note. Lord Morison.-In September of last year the respondent put forward a claim against the complainer for the aliment and inlying expenses of a female child to which she had given birth on 14th August 1922. She alleged that the respondent was the father of the child, and on 6th September presented an initial writ in the Sheriff Court of Lanarkshire in which she asked decree for the sum of £2, 2s. of inlying expenses and £11, 14s. of aliment against the complainer. On the 11th October 1922 the SheriffSubstitute, in the absence of the complainer, held him as confessed and decerned against him as craved and found him liable in expenses. A decerniture for the taxed amount of the expenses followed on 1st December. Both decrees were extracted and the respondent was charged to make payment of the various sums decerned for. In February last the complainer presented in the Bill Chamber a note of suspension asking this Court to suspend the decree and charges simpliciter. On the 15th June thereafter the Lord Ordinary on the Bills passed the note and granted an interim sist of execution on caution or consignation limited to £15. The complainer's case admits of simple statement. He says that when the pursuer's petition was served upon him he entered appearance to defend; that he attended the next Court day thereafter, prepared to lodge defences in obedience to any order that was made; that the respondent did not attend this Court, and that the subsequent stages of the procedure were conducted without his knowledge and without any intimation to him, and were not carried out in terms of the rules prescribed by Schedule I. of the Sheriff Courts Act, 1907. In result he says that he has been condemned unheard and without having had any opportunity of being heard-and that through no fault of his own. The facts of the case do not clearly appear from the record, and after hearing the views expressed by learned counsel on both sides I do not think that parties are at issue on any material point. A warrant for service of the respondent's Sheriff Court writ was obtained on the 5th of September. The petition was served on the complainer as the execution bears-by post on the 7th of September. The service copy of the petition bears erroneously the date of the 6th September. As required by Rule 22 of the Sheriff Courts Act, 1907, the complainer, prior to the expiry of the induciæ, exhibited the service copy of the petition to the sheriffclerk and lodged with him a notice of appearance to defend the action. As the service copy of the writ bore that it had been served on the 6th, the sheriff-clerk, under Rules 22 and 34 December 6, 1923. of the schedule, enrolled the case for tabling OUTER on the 15th September. As the petition had House. not been served until the 7th the respondent Wilson v. believed that the case ought not to have been Gorman. enrolled for tabling until the first sitting of the Court after 15th September, viz. 29th September. Accordingly, when the case was called on the 15th, no appearance was made for the respondent, and the complainer, not unnaturally, concluded that the respondent was not proceeding with her petition and took no further steps. In the meantime the respondent's agent, who was unaware of the proceedings at Court on the 15th September, exhibited the execution of citation upon the complainer (dated 7th September) to one of the sheriff-clerk's assistants, and the case was enrolled for tabling and was tabled on the 29th September. No notice of this procedure was given to the complainer. He did not appear at the calling on the 29th and did not know of the order for defences then made. Decree passed against him in absence on the 11th October thereafter. I am quite willing to accept Mr Walker's explanation that the respondent's agent did not know of the mistake in the service copy of the writ and was unaware of the enrolment of the case at the Court on the 15th September. This explains why the Sheriff was not informed, at the calling of the case on the 29th September, of the complainer's appearance to defend the action. If this information had been given to the Sheriff or sheriff-clerk at the time, I have no doubt that notice of the enrolment for tabling would have been given to the complainer in terms of Rule 35 of the First Schedule to the Sheriff Courts Act, 1907, and the complainer would then have had the opportunity of lodging his defences and of having the case tried. Mr. Walker, in his very clear and able argument for the respondent, pointed out that a number of points relied on by the complainer were untenable. I agree with his argument so far, that a party cannot appear in Court in answer to a citation and then argue that his citation is inept because of an error which it contains. I think also that the execution returned upon the writ is, until it is reduced, conclusive evidence of the facts which it sets forth. It is well settled also that the execution cannot be set aside simply on evidence that its terms differ from the terms of the citation actually served upon the defender. But the real difficulty in the respondent's case arises in consequence of the irregularities connected with the tabling of the case. The complainer contends that the decree pronounced against him was illegal-in respect that it was granted contrary to the rules in the First Schedule to the Sheriff Courts Act, 1907. |