Truth

One argument which has always formed the basis of a good defence to a charge of negligence or contributory negligence, is the plea that the act alleged to be negligent was committed solely in the ‘agony of the moment’. Truth of this can override the general obligation to exercise due care and skill which is expected of a seaman when he finds himself confronted by a dangerous situation. For this defence to succeed, it must be shown that the Master had no time to think of imminent danger, no time to form a deliberate and properly calculated alternative form of action to avoid the critical situation with which he was confronted. In other words, we can see that the defence of ‘agony of the moment’ means that the defendant did not act unreasonably within the actual circumstances of his situation. In The Regina D (1992) a collision took place between the plaintiffs’ vessel and the defendants’ vessel – Regina D – in the River Scheldt, in dense fog. Each ship was being navigated by a licensed River Scheldt pilot. There was no doubt that at the moment of collision and while covering the preceding mile, Regina D was on the correct side of the channel. It was also clear that the plaintiffs’ vessel crossed onto the wrong side of the mid-channel about one minute before the collision and came into collision on the green side of the mid-channel. The plaintiffs conceded that their vessel was proceeding at excessive speed. The issues for decision were whether Regina D was also at fault and how blame for the collision should be apportioned. The Court of Appeal held that there was no ground upon which the findings of the Admiralty Judge, that the pilot of Regina D was not negligent, could be disturbed. His decision that the plaintiffs’ vessel was wholly responsible for the collision was correct. The pilot of Regina D had no warning in time to take the kind of crisis action which would necessarily involve damage to his own ship and which would not be taken by any prudent navigator until absolutely essential. There was no evidence of an wholly unjustifiable decision taken by the pilot of Regina D.