On 19 October 1941, the steamship Tower Field, in the charge of a compulsory pilot, grounded and was damaged while proceeding up a channel from the sea to the Prince of Wales Dock in Workington Harbour. As a consequence of the grounding, the harbour was also damaged.

The plaintiff, the owners of the Tower Field, brought an action for damage to its ship. The defendant, the Workington Harbour and Dock Board, denied liability and counterclaimed for damage to the harbour.

The plaintiff's claim was based on: (1) a breach of the defendant's duty imposed on it by statute and at common law to take reasonable precautions that the approaches to the port and harbour were safe for the Tower Field to navigate in, or to give warning that no such care had been exercised; (2) a breach of contract or warranty by the defendant that the condition of the harbour was in accordance with a statement inserted at its request on the appropriate Admiralty Chart from 1933 onwards.

The defendant based its counterclaim on the alleged negligence of those in charge of the Tower Field in causing the ship to become stranded or, alternatively, in the absence of negligence on the part of those in charge of the Tower Field, on s 74 of the Harbours, Docks, and Piers Clauses Act 1847 (the 1847 Act).

Wilmer J concluded that although the plaintiff proved a want of reasonable care on the part of the defendant, the grounding was solely due to the pilot's negligence and thus dismissed the plaintiff's claim and found in favour of the defendant on its counterclaim. The plaintiff appealed to the Court of Appeal.

One of the issues was whether the plaintiff was prevented from suing by reason of s 15 of the Pilotage Act 1913 (the 1913 Act):

(1) Notwithstanding anything in any public or local Act, the owner or master of a vessel navigating under circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the vessel or by any fault of the navigation of the vessel in the same manner as he would if pilotage were not compulsory.

(2) This section shall not take effect until the first January, 1918, or such earlier date as His Majesty may fix by Order in Council, certifying that it is necessary to bring the section into operation in order to enable His Majesty to comply with an international convention.

(3) As from the date of the coming into operation of this section, Sect. 633 of the Merchant Shipping Act, 1894, shall cease to have effect.

Held (Scott, Asquith LJJ; Bucknill LJ dissenting): Appeal allowed.

The majority: The course erroneously set by the pilot was induced by the harbour authority's breach of duty to convey essential and crucial information concerning the navigable channel to the pilot. Furthermore, there was a contractual relationship between the parties. The defendant breached the implied warranty that, in the absence of notice of obstruction, the advertised particulars contained in the Admiralty Chart had been maintained. Therefore, the defendant's common law defence alleging contributory negligence by the pilot did not operate as an answer to the plaintiff's claim.

In addition, the contention that the damage did not flow from the breach but solely from the plaintiff's own act could only be established by proof that the compulsory pilot was the plaintiff's servant, even for the purposes of an action in contract. A compulsory pilot was not the shipowner's servant at common law. The issue, therefore, is whether, even in contract, the compulsory pilot is to be treated as the servant of the shipowner under s 15 of the 1913 Act.

Section 15 was introduced to comply with the Collision Convention 1910, brought into UK law by the Maritime Conventions Act 1911 (the 1911 Act). Article 5 of the Collision Convention 1910 called for the alteration of the law as then defined by s 633 of the Merchant Shipping Act 1894. Article 5 provides that '[t]he liability imposed by the preceding articles attaches in cases where the collision is caused by the fault of a pilot, even when the pilot is carried by compulsion of law'.

The Collision Convention 1910 was only concerned with what English common law calls 'torts' and English admiralty law calls 'fault', and what Continental law, based on the Code Napoléon, calls by the French word 'faute'. The Collision Convention 1910 had nothing whatsoever to do with contract. The word 'answerable' in s 15(1) of the 1913 Act prima facie means answerable as defendants to a claim; but the purpose of giving effect to art 5 of the Collision Convention, in the sense undoubtedly intended by the Convention, outweighs that consideration. The main difference between English and Continental law was that in the English Court of Admiralty, where both ships were to blame, the damages suffered by each were added together and then arbitrarily divided in half, and liability was apportioned accordingly. The Continental principle was the proportional rule, and the main object of the Collision Convention 1910 was to make that rule universal. Therefore, the conception of the word 'answerable' extends to the plaintiff ship and the defendant ship.

It was concluded that s 15 of the 1913 Act would apply in the litigation, in regard to the cross-claims in tort, if the plea of contributory negligence were established. However, there was no justification to extend s 15 to the case of a shipowner suing, as in the present action, in contract. Therefore, judgment was entered for the plaintiff on the claim and counterclaim.

Bucknill LJ: Both the pilot and the harbour authority were negligent. The plaintiff was precluded from recovering in an action in tort by reason of s 15 of the 1913 Act. One of the objects of s 15 was to abolish compulsory pilotage as a defence in order to bring the law of England into line with the laws of other nations.

Section 1(1) of the 1911 Act (based on art 1 of the Collision Convention 1910) provides that, where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels to their cargoes or freight or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault. The intent of this section is that where damage is caused to ship A by the fault of ships A and B, and the fault of A is that of its compulsory pilot, the liability to make good the damage to A falls upon the owners of both ships in proportion to the degree in which each vessel was at fault.

Section 1(1)(c) of the 1911 Act states that 'nothing in this section shall affect the liability of any person under a contract of carriage or any contract, or shall be construed as imposing any liability upon any person from which he is exempted by any contract or by any provision of law, or as affecting the right of any person to limit his liability in the manner provided by law'. Such an exemption from liability would arise in the case of compulsory pilotage before s 15 of the 1913 Act came into force. It is contrary to the object of the 1911 Act to construe s 1(1)(c) so as to entitle the shipowner to exemption from the burden of paying for part of the damage when its ship was partly to blame through the negligence of its compulsory pilot.

Even if there was any warranty by the harbour authority as to the state of the channel, there was also a breach by the plaintiff of the implied term that the ship should follow the line of the leading beacons. The defendant could not claim compensation under s 74 of the 1847 Act where the damage resulted wholly or partly from the harbour authority's own negligence. Therefore, both the claim and counterclaim should be dismissed.