8th October 1960
'On October 8, 1960, MacBrayne's Lochiel sank after it struck a rock when trying to enter West Loch Tarbert
Alexander McCutcheon had travelled across to the mainland on the Thursday, two days before the Lochiel's fateful trip and finding that he needed his car, he arranged for his brother-in-law, Peter McSporran, to send his Ford Popular over.
When he arrived at the pier at Port Askaig, Peter McSporran handed over the car to the company's official and, after paying the agreed freight charge, he left, holding a receipt for the money, but wasn't asked to sign a "risk note".
Both Peter McSporran and his brother-in-law Alexander McCutcheon were used to sending goods to the mainland using the MacBrayne vessel and had on other occasions signed a "risk note" limiting the company's liability by incorporating the printed conditions into the agreement but, on this occasion, nobody in the MacBrayne office had asked for any signature or even mentioned a "risk note".
It was the time of the autumn cattle sales in Tarbert, the weather was calm and the visibility good and, as the Lochiel was making her way up West Loch Tarbert full of cattle and sheep, a rippling tremor ran through the ship.
Several plus-foured members of the gentry were sipping tea in the comfort of the forward lounge when the door of the engine room emergency escape route that opened into the saloon burst open to reveal a dripping second engineer. 'My God we're sinking !' he shouted, and disappeared towards the bridge. After a few moments silence there was the sound of a cup being replaced onto its saucer. 'I suppose we should go and see to the dogs', someone said.
The little ship had run into Sgeir Mhein, an unmarked skerry submerged at high water about a mile from West Loch Tarbert Pier , which normally merited a dogleg in the otherwise straight in up the loch.
In absent-mindedly steering by eye rather than by chart and compass, the vessel struck the rock a glancing blow with her port side, opening up a huge gash in the engine room. The cattle sales had nothing to do with the cause of the accident, but was rather the direct result of the regular helmsman being away, singing at the Mod.
The master did his best to make for the pier, but as water rose over the main engine air intakes, she stopped and drifted into the mud just north-east of Eilean da'Ghallagain. There was no immediate danger since the vessel had sunk as far as she was going to and the main-deck was still above water, the mess-room boy, left behind in the mess-room having his tea, decided that there was something wrong when he felt water round his feet.
Passengers wandered around in bemused fashion as the crew frantically tried to disturb the lifeboats comfortably settled on their chocks since the last Board of Trade inspection and someone with a compassionate turn or mind released seventy-five sheep from their pens, the relieved animals adding to the surreal scene as they scampered around the decks.
The bar was in those days in the forepart of the vessel, the part which was disappearing under water. The valiant barman stuck to his post, with water nearly up to his armpits, salvaging the contents of the bar and handing out bottles of booze to all comers although the sea was lapping their waists, prompting one daily paper to headline the event 'Drinks for All As The Ship Goes Down'.
Within an hour, lifeboats rowed by some of the crew and some happy passengers ferried Tarbert fire-brigade men and pumps to the ship. One elderly seaman summed up the situation: 'Yon was a terrible experience altogether. I jumped into a lifeboat and there was no room for me, it was full of passengers and sheep'.
The fire-brigade pumps were raised aboard by the ship's derrick and swung in through the forward windows and, in time, the pumps achieved enough reduction in water level to allow the watertight door between the engine room and the propellor shaft tunnel to be shut.
Among the items lost or irretrievably damaged was Alexander McCutcheon's car . On every occasion, whether he was doing it for himself or on behalf of his employer, Alexander McCutcheon had been required to sign a "risk note" imposing conditions on the contract of freight and seeking to restrict the shipping company's liability but, not on this occasion for the car had been delivered to MacBrayne's Port Askaig office by Alex's brother-in-law, Peter McSporran and Peter, after paying the agreed freight charge and handing over the car to the company's official, had left, holding a receipt for the money, but hadn't been asked to sign a "risk note".
MacBrayne's conditions of carriage were displayed in the office on Islay as well as elsewhere and most regular users of the service were aware of there being such a notice but few probably had troubled to read it or to consider its meaning.
The sinking of the Lochiel was entirely due to the negligence of members of her crew and Alex McCutcheon now endeavoured to recover the cost of his Ford Popular from the vessel's owners, its value agreed at £480 but the shipping company refusing to pay, they pointing out that both Mr McCutcheon and Mr McSporran were well aware of the conditions of carriage and Alexander McCutcheon then taking his case to court.
At the initial hearing of the case before Lord Walker it was established that Clause II of the printed provisions was sufficiently clear in its terms as to exclude any claim for the loss of the car even if it arose from the company's employees' negligence. The crucial question was whether the conditions of carriage applied when Mr McSporran had not, on this occasion, signed a "risk note".
The ferry owners contended that as both men knew the basis on which cars and other goods were transported the fact that for once no "risk note" had been completed did not matter. The presence of clear notices on the pier and in the ferry office meant, in their view everybody knew of and accept restriction of liability.
Mr McCutcheon's lawyers maintained that the previous dealings of either Mr McSporran or their client had nothing to do with what happened. This was, they argued, a new agreement under which David McBrayne Limited agreed to port the car to West Loch Tarbert and in return received payment from Mr McSporran acting as agent for his brother-in-law. No special conditions were agreed to nor accepted and no document was signed changing the normal rule that a negligent party should pay for any loss caused by carelessness.
After hearing evidence and considering all the documents, Lord Walker rejected the ferry company's contentions and awarded Mr McCutcheon £480. They however appealed and two years after the Lochiel sank three judges listened to two days of legal argument before agreeing that Mr McCutcheon was bound by the normal conditions of carriage and that accordingly David McBrayne Ltd could escape any liability. Poor Mr McCutcheon was now faced with a massive bill for both sides' legal expenses and no recompense for his lost car.
In the hope that the adverse decision could be reversed, the car owner sought and obtained leave to take his case to The House of Lords. There for a further two days the issues were closely debated and reference made by both QCs to numerous legal authorities and text books.
The issue was however summarised by one of The Law Lords when he pointed out that had the company's form been signed by Mr McSporran there would never have been any claim. However, "by a stroke of ill luck. . . . . . upon this day of all days they omitted to get him to sign. What difference does that make ?"
The answer, said Lord Devlin, would be a short and simple "None" if the Judges were able "to escape from the world of make-believe which the law has created into the real world in which transactions of this sort are actually done".
Fortunately for Mr McCutcheon, Lord Devlin and his four colleagues felt unable to look beyond the fact that Mr McSporran on this one occasion had not accepted the "risk note". They therefore held that no contract existed preventing David McBrayne Ltd being liable for the incompetent navigation of the crew of the Lochiel.
The ferry company had to pay for the lost car as well as the cost of five days in court. This had involved six firms of solicitors as well as four counsel. There can be little doubt that October 8, 1960, was an unlucky day for the ferry operators. Not only did they lose their vessel due to a blunder by members of the crew, they also incurred a substantial liability because another employee forgot to ask Mr McSporran to sign a form.
Their feeling of frustration must have increased when they saw Lord Devlin's comment that the form which would have saved them was "not meant to be read, still less understood !"
The Lochiel, her hull full of mud, was eventually salvaged by the salvage vessel from the ex-boom defence base in Greenock and returned to service the following spring with a black line inside her engine room, which marked the high watermark on the day of the 1960 autumn sales at Tarbert.
The master lost his job and fetched up as pier-master at Lochaline, not quite the West Highland equivalent to being exiled to Siberia and the Lochiel chugged happily up and down West Loch Tarbert for most of the next decade. '
