PETITIONER: THE ASIATIC STEAM NAVIGATION CO., LTD. Vs. RESPONDENT: SUB-LT. ARABINDA CHAKRAVARTI DATE OF JUDGMENT: 12/01/1959 BENCH: ACT: Shipping-Collision-Negligence--" Standing on " vessel-Giving way " vessel-Rights an duties-Nautical assessors-Advice not binding on Court-Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60) Regulations of 1910, Arts. 21, 23, 25, 27, 29. HEADNOTE: On December 13, 1940, in the afternoon, a cargo ship, N, left Madras harbour bound for Calcutta heading for the open sea. She was being navigated in a swept channel outside the 980 harbour our and was on her proper, namely the starboard side of the channel. At that time a patrol ship, K, was on an opposite course making for Madras harbour and entered the channel at about 6-25 p. m. At 6-30 p. m. N decided to overtake K by going port on an erroneous assumption that K was going in the same direction as N and was not an on- coming ship. By about 6-45 P.m. when K sighted N on the port bow the two ships were opposite each other near about the mid-line of the channel, the distance between the two being then a little more than a mile. N continued her port course and went over the mid-line into the wrong side of the channel and at about 6-48 P. m. the distance between the two ships was less than a mile. K noticed at that moment that N was converging on her and accordingly in order to avoid a collision K turned to hard port and gave a signal to that effect. N, however, took starboard action to get back to the right side of the channel and get out of the way of K. At about 6-49 P. m. finding that a collision was imminent the commander of N ordered full speed astern, but it was too late and a collision took place at about 6-5I P. m. The appellant, the owner of N, instituted a suit for damages against the respondent, who was one of the officers in charge of and responsible for the navigation of K, on the plea that the collision was caused by the negligent navigation of K. The trial judge who had been assisted by nautical advisers, held that K wrongly altered her course at the moment when she did, and if any step had to be taken she should have altered not to port but to starboard, and if any other action was necessary, she should have put her engines full speed astern. On appeal, the High Court, which also had the assistance of two assessors, reversed the findings of the trial court and dismissed the suit. On appeal to the Supreme Court, the appellant contended that K should have anticipated that sooner or later N would correct her mistake and go to the starboard side of the channel and, therefore, as the " standing on" vessel, K should have kept her course and speed as required by Art. 21 Of the Regulations of 1910, made under the Merchant Shipping Act, 1894, and that if she had done so, there would have been no collision. As in the lower courts, this Court also had the assistance of two assessors. Held, that K was justified in taking port action at 6-48 p. m. when a collision seemed imminent, in view of Arts. 27 and 29 of the Regulations under which when a vessel finds herself so close to another vessel that a collision cannot be avoided by the action of the "giving way" vessel alone, she must also take such action as will best aid to avert collision. Held, further, that it was an act of negligence on the part of N to take hard starboard action, instead of following the provisions of Art. 23, as the " giving way " vessel, by slackening the speed of or reversing N between 6-45 p. m. and 6-48 p. m. "The Tioga ", (1945) 78 LI. L. Rep. 1 and " The Empire Brent ", (1948) 81 LI. L. Rep. 306, distinguished. 981 The function of nautical assessors is to advise the court upon nautical matters but the decision of the court rests entirely with the court and even in purely nautical matters the court is I not bound to follow the advice of the assessors, but on questions of nautical science and skill great attention must be paid to the opinion of the assessors since they are the only source of information on these points and some reason must be given for disregarding them. The assessors in an appeal court are not substituted for those consulted in the trial court ; they are additional to them; and if one adviser or two advisers are to be preferred, it is because in the judgment of the court the advice given is such as, in itself, is the more acceptable. The relevant articles of the Regulations of 1910, made under the Merchant Shipping Act, 1894, are set out in the judgment. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 229 of 1954.
Appeal from the judgment and decree dated February 28, 1952,
of the Bombay High Court in Appeal No. 34 of 1952, arising
out of the judgment and decree dated February 5, 1951, of
the said High Court in Admiralty Suit No. 1 of 1943.
S. C. Isaacs, P. N. Bhagwati, S. N. Mukherjee and B. N.
Ghosh, for the appellants.
E. E. Jhirad and T. M. Sen, for the respondent.
1959. January 12. The Judgment of the Court was delivered
by
S.K. DAS, J.-This appeal on a certificate given by the High
Court of Judicature at Bombay is from the decision of a
Division Bench of the said High Court in Appeal No. 34 of
1951, dated February 27 and 28, 1952, by which it reversed
the decision of a single Judge of the said High Court in
Admiralty Suit No. 1 of 1943 dated August 8, 1950.
The appellant, Asiatic Steam Navigation Company Ltd., is a
company incorporated in the United Kingdom with its
registered office in London and has an office in Calcutta.
The respondent is ex-Sub-Lieutenant Arabinda Chakravarti,
who at all material times was a commissioned officer in the
then Royal Indian Navy with its headquarters at Bombay. The
action which the appellant brought arose out of a collision
in
982
a swept channel, a little distance outside the Madras
harbour, on December 13, 1940, at about 6-51 p.m. The two
ships concerned in the collision were the cargo vessel, S.
S. Nizam of 5,322 gross tons and H. M. S. Kalawati, a patrol
ship of 1,185 tons. For the sake of brevity and
convenience, these two vessels will be referred to in this
judgment as the Nizam and Kalawati. At all material times,
the appellant owned the Nizam and the respondent, it was
stated, was one of the officers in charge of and responsible
for the navigation of the Kalawati . One F. C. H. Mason was
the Chief Officer of the Nizam and the Master was Malcolm
John McLure. Henry Lee was the Commander of the Kalawati
and Arabinda Chakravarti, as stated above, was one of the
officers in charge of and responsible for the navigation of
the Kalawati at the relevant time.
The case set out by the appellant in the plaint was this.
On December 13, 1940, in the afternoon the Nizam, which was
then under charter to the Ministry of Shipping, left Madras
harbour bound for Calcutta carrying a cargo. She was then
tight, staunch, strong, well manned and in every respect
sound and fit. A few minutes after 6-45 p.m. when the
weather was fine, clear but cloudy, the moon full, the wind
moderate, the sea calm and the set of the tide from north to
south, the Nizam was being navigated in a swept channel
outside the Madras harbour. The swept channel wag
approximately about one mile wide and seventeen miles long.
The Nizam was heading for the open sea on her proper course
to Calcutta and was being navigated in a proper and
seamanlike manner and was on her proper, namely the
starboard side of the channel. The Kalawati was on an
opposite course making for Madras harbour. The Nizam having
the Kalawati about one point on her starboard bow star-
boarded with the result that the two vessels were about one
mile apart on courses which would result in their passing
from -port to port with a distance of about half a mile
between them. At that time, the Kalawati made a ” light ”
signal to the Nizam; the signal was not legible and the
Nizam sent a signal
983
which asked for a repetition of the signal of the Kalawati.
The Nizam continued hard to starboard, but the Kalawuti
altered course to port with the result that the Kalawati was
converging on the course of the Nizam. The Nizam continued
to go to starboard and the Kalawati to port; thereafter,
when a collision seemed very imminent, the Nizam was put
full speed astern, but the Kalawati was navigated across the
bows of the Nizam and the result was that the starboard
quarter of the Kalawati came into collision with the bows of
the Nizam. The Kalawati then pivoted round the bows of the
Nizam and again came into collision with the latter. After
alleging the facts stated above, the appellant pleaded in
the plaint that the collision was caused by the negligent
navigation of the Kalawati and the following particulars of
that negligence were given: (a) alteration of the Kalawati’s
course to port so as to take her across the bows of the
Nizam; (b) failure of the Kalawati to stop or to go astern
and/or to put her helm hard a-starboard when there was yet
time for her to do so and avoid a collision; (c) in breach
of the Regulations for the Prevention of Collisions at Sea
the Kalawati failed to keep to her proper side, namely, the
starboard side of the channel, when it was her duty to do
so, and further the Kalawati failed to keep out of the way
of the Nizam when it was her duty to do so and (d) a proper
look-out was not kept on board the Kalawati. The total claim
which the appellant preferred forthe damage sustained was a
sum of Rs. 88,000 and odd and particlars of the claim were
set out in sch. B of the plaint.
In his written statement the respondent denied any liability
for the damage sustained by the Nizam. The case of the
respondent as set out in his written statement was, to put
it briefly, this. The respondent said that at about 6-45
p.m. on December 13, 1940, he was the officer on watch and
the Kalawati was steering a course north 800 west keeping to
the Kalawati’s proper side of the channel. The Nizam was
sighted at about that time, about 20′ on the port side and
about 2 1/2 miles away, heading for the open sea and
984
steering eastwards and running a parallel and opposite
course. Due to certain wartime regulations, the lights of
both the vessels were blacked out. According to the courses
which the Nizam and the Kalawati were then pursuing they
would have passed each other clear port to port and the
respondent signalled to the Nizam with a portable Aldis
Lamp, and asked for her identity. The Nizam replied with
one long flash indicating that she was ready to receive
signals from the Kalawati. As the respondent was about to
continue signalling, he noticed that the Nizam altered her
course to port in such a manner that she was converging on
and crossing the course of the Kalawati. The respondent
then stopped signalling and as the Nizam continued on the
wrong course taken by her until her bows were fine on the.
port bows of the Kalawati, a collision seemed imminent, the
two vessels then being about two cables apart. In order to
avert the imminent risk of collision the respondent ordered
the Kalawati to be put hard aport and simultaneously
indicated to the Nizam the alteration of the Kalawati’s
course. The Nizam, however, instead of keeping to the
course already taken by her and passing the Kalawati on the
starboard side, erroneously attempted to correct the earlier
wrong course taken by her and attempted to go back to her
proper side of the channel. The Nizam then altered her
course to hard starboard with the result that the two
vessels were in such a position that it was not -possible to
avert a collision either by slackening the speed of the
Kalawati or by going astern. In substance, the case of the
respondent was that the collision was caused by the
circumstances (a) that the Nizam failed to keep to her
proper side of the channel, (b) that she continued to -port
in such a manner as to put the Kalawati in a perilous
position and the Kalawati had to take avoiding action and
finally (c) the Nizam was negligent in altering her course
to hard astarboard after being made aware repeatedly that
the course of the Kalawati had been altered to port.
Therefore, according to the respondent, the action of the
Nizam in steering starboard after Kalawati had taken port
action, was the proximate and effective cause of the
collision.
985
On the pleadings’ stated above, several issues were framed
but the principal question for decision by the. learned
trial Judge was if it was the negligent action’ of the Nizam
or of the Kalawati which caused the collision. Issues 1, 2
and 3 were the issues which related to this question. A
further question was raised by issues 4 and 6 and that
related to contributory negligence, and in case it was found
that both the vessels were to blame for the collision, the
question raised was in what proportion the negligence of the
Nizam and of the Kalawati contributed to the collision. The
learned trial Judge found in favour of the present
appellant. on the principal question and expressed his
finding in the following words:-
” I have come to the finding that the first helm action was
taken-and rightly taken-at the crucial time by the Nizam
going hard astarboard, and the Kalawati turned to port when
there was no question of the imminence of any
collision……….. In these circumstances, as a standing
on vessel the Kalawati turned – and wrongly in my opinion –
to port and but for her turning to port, there was no
question of the two vessels coining. into a perilous
position. In these circumstances, I am of the opinion that
the Nizam was justified in starboarding. The Kalawati had
to keep her course under the rule being a standing on
vessel, and should have maintained her course in that manner
until the last safe moment, but to my mind she turned to
port much before any such occasion arose. On this point, I
may say that had the Kalawati to take any action at all, the
normal action would have been going to starboard, and this
would have completely avoided the collision. On this point
I may state that the nautical advisers whom I have had
occasion to consult are in agreement with the view I am
adopting.
I may also state that in my opinion the Nizam put its
engines full speed astern at the earliest opportunity,
looking to the situation. The Nizam was put full speed
astern at least 2 1/2 minutes approximately before the
collision took place, and even if the statement of
124
986
McLure that she was dead slow before the collision is a
slight overstatement it must follow that the back of the
momentum of the Nizam had already been wholly broken and
there is evidence that she was doing about 3 to 4 knots
instead of her 9 to 10 knots normal speed. On the other
band, I am clearly of the opinion that it was fundamentally
wrong for the Captain of the Kalawati not to put her engines
full speed astern immediately he saw the situation was
perilous. In fact, instead of doing so, he went full speed
ahead. To my mind, that was not only a wrong judgment but a
judgment inspired by desperation, namely, that by putting
them full spied ahead with a bit of luck, he would have
cleared himself of the nose of the Nizam.
I have, therefore, come to the conclusion that the Kalawati
wrongly altered her course at the moment when she did, and
if any step had to be taken she should have altered not to
port but to starboard, and if any other action was
necessary, she should have put her engines full speed
astern.” –
In view of the aforesaid findings, the learned trial Judge
expressed the view that the question of contributory
negligence did not arise, as also the question in what
proportion each contributed to the collision.The question of
damages was, by agreement, held over until the findings on
the question of negligence and, after the learned trial
Judge had given the necessary findings on the question of
negligence, the damage sustained by the Nizam was assessed
at Rs. 76,893-2-8 and a decree was passed for that amount
with interest thereon at four per cent. per annum from June
19, 1941.
The respondent then preferred an appeal and the appeal was
heard by Chagla, C. J., and Bhagwati, J. Like the
trial Judge, the Judges who heard the appeal also had the
assistance of two assessors. On the principal question. as
to, whether- the collision was caused by the negligent
action. of ‘the Nizam or of the’ Kalawati, the learned
Judges who heard the appeal reversed the findings of the
learned trial Judge. They said:
“Therefore, in our opinion, on this evidence, we
987
must find as a fact that the Nizam did not alter her course
to starboard at 6-45 p.m., but she did so much later and
very likely at 6-48 p.m. when she gave one blast to indicate
the change of course. ‘Now, if that is the fact we find, we
have to consider what bearing that finding of fact has upon
the question of the defendant’s negligence. The question is
whether the defendant was justified in turning his ship to
port at 6-48 p.m. if at that moment the Nizam was still
steering to port. The question is whether at 6-48 p.m.
there was a reasonable probability of a collision which
justified the Kalawati in changing her course to port in
order to avoid that collision. We have the plan before us
and we have the evidence before us, but as this question of
fact involves a question of nautical skill we have availed
ourselves of the assistance of the assessors. Commander
Kale is emphatically of the opinion that at 6-48 p.m. if the
Nizam was pursuing the same course that she was doing from
6-38 p.m., there was a reasonable probability of a collision
which it was the duty of the defendant to avoid as best as
he could, and according to Commander Kale, the only way he
could have possibly avoided it was by steering his ship to
port. Capt. Malcolm does not agree with this view. He
takes the’ view that the Kalawati should have rather turned
to starboard than to port, and his opinion is based on the
consideration that the Kalawati should have assumed that at
sometime or other the Nizam would turn starboard and taking
that possibility into consideration she should have gone to
the right side and not to the wrong side. With respect to
Capt. Malcolm, we are inclined to prefer the opinion given
by Commander Kale as to what should have been done under the
circumstances… Now, as the Nizam was the ” giving way”
vessel, there was the primary obligation upon her if
necessary to stop the ship or to go astern, and on the
evidence it is difficult to resist the conclusion that the
order to go full speed astern, could have been given earlier
either by the Captain himself or by Mason. On this point
both the assessors have expressed their opinion that as a
matter of nautical skill
988
it would have been possible and indeed it should have ,been
done, viz., that the ship should have been ordered to go
full speed astern earlier than 6-49 p.m.
In our opinion, therefore, there are these two facts which
have definitely contributed to the collision taking place at
6-52 p.m. The first is the failure on the part of the Nizam
to give the signal that she was going starboard, even
assuming that we accept the plaintiffs’ case that she
starboarded at 6-45 p.m. If she had given the signal then it
would have given proper and full warning to the Kalawati as
to what the Nizam was doing or going to do at that moment.
The other fact which has also contributed in our opinion to
the collision is the failure on the part of the Nizam to go
full speed astern earlier than 6-49 p.m.” In the result, the
appeal was allowed and the action of the appellant was
dismissed with costs throughout.
We have already stated that the High Court of Bombay gave a
certificate of fitness under Art. 133 of the Constitution
and the present appeal has been brought to this Court in
pursuance of that certificate.
Two assessors, Capt. J. A. Cleeve and Commodore A. K.
Chatterjee, have assisted us. At the very outset, it is
necessary to clarify two points. Firstly, it appears that
the learned Judges who heard the appeal in the Bombay High
Court did not base their findings on the evidence of the
respondent or his witnesses; nor did the learned trial Judge
attach any great importance to the evidence of the
respondent or his witnesses. The learned Judges said:-
” We do not blame the learned Judge because, when the
evidence of both these witnesses was laid before us, we also
felt that the evidence was not given in a manner which would
inspire confidence.”
Learned counsel for the appellant has placed before us in
full the evidence of the appellant and its witnesses. He
has also placed before us such portions of the evidence of
the respondent and his witnesses as, in his opinion, support
the case of the appellant. In arriving at our conclusions
we have also proceeded on the footing that as the courts
below did not consider the evidence of the respondent’s
witnesses to be reliable,
989
the principal question of negligence must be decided on the
evidence of the appellant’s witnesses. The trial Judge took
one view of that evidence and the Judges’ who heard the
appeal took another view. There being no concurrent
findings, we allowed learned counsel for the appellant to
place the entire evidence of the appellant’s witnesses
before us in support of his contentions. The other point
relates to the assessors. It has not been disputed before
us that the function of nautical assessors is to advise the
court upon nautical manners and as Scott, L. J., said in The
Clan Lamont (1):
“………… their advice is expert evidence, admissible in
Admiralty Courts, on all issues of fact about seamanship.”
The decision of the case, however, rests entirely with the
court and even in purely nautical matters the court is not
bound to follow the advice of assessors, but on questions of
nautical science and skill great attention must obviously be
paid to the opinion of the assessors since they are the only
source of information on these points and some reason should
be given for disregarding them. In the Australia (2) Lord
Dunedin deprecated putting to assessors a question that is
tantamount to asking them whether they would find for the
plaintiff or the defendant and repudiated the idea that the
views of the assessors in an appeal court are entitled to
more respect than those of assessors below. The assessors
in an appeal court are not substituted for those previously
consulted; they are additional to them; and if one adviser
or two advisers are to be preferred, it is because in the
judgment of the court the advice given is such as, in
itself, is the more acceptable. There can be no question of
any appeal from one set of assessors to another. We have
followed the same principles with regard to the advice of
the assessors given in this case and we shall refer to such
advice in the course of this judgment when it has a bearing
on the questions at issue before us.
The principal point for determination in this case is which
of the two, the Nizam or the Kalawati, was
(1) (1946) 79 LI. L. Rep. 521, 524 (Lloyds List Law
Reports).
(2) [1927] A. C. 145.
990
responsible for the collision; and if both were responsible,
what is the extent of the responsibility of each ? For a
determination of these questions it is necessary first to
find what courses the aforesaid two boats were, following at
the relevant time and what changes of course were made by
them. These facts have to be determined first and in doing
so we must keep in mind some of the regulations made under
the, Merchant Shipping Act, 1894. It has been admitted by
counsel for both -parties that these Regulations apply, and
are concerned with the Regulations of 1910, namely, those
made by an order in Council dated October 13, 1910. They
embody rules which were to be followed at the relevant time
by all vessels upon the high seas, and in all waters
connected therewith navigable by sea-going vessels.
Articles 17 to 27 of the 1910 Regulations relate to steering
and sailing rules. Article 17 applies to sailing vessels,
and Art. 18 to steam vessels. Article, 18 says in effect
that when two steam vessels are meeting end on or Dearly end
on so as to involve risk of collision, each should alter her
course to starboard so that each may pass on the port side
of the other. Article 19 is in these terms:
Art. 19. “When two steam vessels are crossing, so as to
involve risk of collision, the vessel which has the other on
her own starboard side shall keep out of the way of the
other.”
The vessel which has to keep out of the way of the other is
called the ” give way ” vessel and the other is called the ”
standing on” vessel. In the case before us there is no
dispute that the Nizam was the give way vessel and the
Kalawati the standing on vessel. Article 21 has some
bearing on the question at the issue before us and is in
these terms:
Art. 21. ” Where by any of these Rules one of two vessels
is to keep out of the way, the other shall keep her course
and speed.”
Article 23 says :
” Every steam vessel which is directed by these Rules to
keep out of the way of another vessel shall, on approaching
her, if necessary, slacken her speed or stop or reverse.”
991
Article 24 says inter alia that notwithstanding any. thing
in the Rules, every vessel overtaking another, shall keep
out of the way of the overtaken vessel. Article 25 is very
important for our purpose, as learned counsel for the
appellant has placed great reliance on it. This Article
must, be quoted in extenso.
Art. 25. ” In narrow channels every steam vessel shall,
when it is safe and practicable, keep to that side of the
fairway or mid-channel which lies on the starboard side-of
such vessel.”
There has been considerable difficulty in defining a ” narrow
channel “, and in the trial court the present respondent
denied that the swept channel outside the Madras harbour was
a narrow channel within the meaning of Art. 25 aforesaid.
The courts below proceeded, however, on the footing that the
channel in question was a narrow channel within the meaning
of the said Article and we have also proceeded on the same
footing. Article 27 is also important for our purpose. It
says:
Art. 27. ” In obeying and construing these Rules, due
regard shall be had to all dangers of navigation and
collision, and to any special circumstances which may render
a departure from the above Rules necessary in order to avoid
immediate danger.”
Articles 29 and 30 are two residuary Articles. Article 29
inter alia says that nothing in the Rules shall exonerate
any vessel from the consequences of any neglect to keep a
proper look out or of the neglect of any precaution which
may be required by the ordinary practice of seamen, or by
the special circumstances of the case, and Art. 30 says that
nothing in the Rules shall interfere with the operation of a
special rule, duly made by a local authority, relative to
the navigation of any harbour, river or inland waters.
We proceed now to a consideration of the evidence with
regard to those facts on which the determination of the
question of negligence depends in this case. We do not
propose to embark on a very detailed third review of the
evidence given in the case, but shall confine ourselves to
those salient points which, in our view, are determinative
of the principal question at
902
issue between the parties, namely, that of negligence ,for
the collision which took place at about 6-51 p. m. on
December 13, 1940. We shall for that purpose refer to the
evidence of Mason, McLure and Abdul Nabi, three witnesses
for the appellant. As to the effect of the evidence of
these three witnesses, the learned Judges who heard the
appeal in the Bombay High Court came to conclusions
different from those of the learned trial Judge and one of
the points for our consideration will be if the appellate
Court gave good and convincing reasons for differing from
the view of the evidence which the learned trial Judge took.
It may be stated here that the aforesaid three witnesses
were examined by Blagden, J., in April, 1945, and February,
1946, and that learned Judge made some notes as to the
manner in which the three witnesses gave their evidence.
Our attention has been drawn to those notes by learned
counsel for the appellant. Blagden, J., however had ceased
to be a Judge of the Court before the suit was tried. The
respondent and his witnesses were examined in 1950 by
Coyajee, J., who tried the suit and gave judgment in favour
of the appellant.
It appears from the evidence that at about 4-45 p.m. on
December 13, 1940, the Nizam took the pilot on board and
proceeded to sea. At about 5-22 p.m. the pilot was dropped
and she proceeded at full speed under McLure’s orders up the
swept channel, the speed being about 10 1/2 knots. McLure
handed over to Mason at about 5-55 p.m. and the Nizam was
then steering a course north 86 degree east, making some
allowance for the leeway to port for the set of the tide
from north to south. At about 6 p.m. the third officer re-
lieved Mason; Mason returned to the bridge at 6-30 p.m. and
took over from the third officer. Mason said that be had
checked the bearings of the Nizam just before he left the
bridge at 6 p.m. and she was then two cables on the proper
side of the channel. Soon after 6-30 p.m. Mason saw a
vessel about two points on the starboard bow of the Nizam at
a distance of about three miles. Mason’s evidence was that
he thought then that the Nizam was overtaking
993
that other vessel which must have been the Kalawati. At 6-
38 p.m. Mason altered the course of the Nizam 8 degree to
port, because he thought that the Nizam and the Kalawati
were on converging courses. At 6-43 p.m. the look-out on
the Nizam rang the bell twice indicating a vessel viz. the
Kalawati on the starboard side. Mason then said that at
about 6-45 p.m. the Kalawati was about one mile on the
Nizam’s starboard bow and was clearly seen to be crossing to
starboard port. The Kalawati then made an Aldis lamp signal
and Mason replied I.M.I. with a torch which asked for a
repetition of the signal. Mason then ordered bard astar-
board; he did this because under certain wartime orders a
merchant vessel had to turn away from any ship that
signalled. At 6-47 p.m. the Kalawati was several points on
the port bow of the Nizam and near about 6-48 p.m. the
Kalawati altered her course to port and indicated the
alteration by two short blasts. Mason replied by one short
blast indicating that the Nizam was turning to starboard.
At about 6-49 p.m. McLure came on board and he rang full
speed astern. By about 6-51 p.m., however, the collision
took place.
The above gives in brief a summary of the events which,
according to Mason, led to the collision. McLure’s evidence
was that he returned to the bridge at about 6-48 p.m. on
hearing two short blasts from the Kalawati, and on coming to
the bridge he saw that the Kalawati was turning to port.
McLure at once ordered full speed astern and caused three
short blasts to be given; but the collision occurred within
about two minutes. Abdul Nabi was the Quarter Master of the
Nizam. His evidence was to the effect that Mason came on
the bridge at about 6-30 p.m. and at that time the Nizam was
steering a course north 86 degree east. At about 6-40 p.m.
(Abdul Nabi said that it was ten minutes after Mason came on
the bridge) be received an order to steer 8 degree to port
and he did so. Some five or ten minutes after he received
another order to go to starboard, that is, to the Nizam’s
former course. Then came the last order to hard astarboard
and this was at about the time when Abdul Nabi board two
125
994
blasts from the Kalawati. It may be here remarked that
Abdul Nabi’s evidence differs essentially from that of Mason
as to the time when the Nizam went hard astarboard and also
as to the sequence of events which led to the alteration of
the Nizam’s course from north 86 degree east to 8 degree
port first, then to her former course and then again to hard
astarboard. We shall later return to these discrepancies.
The three circumstances, however, which stand out from the
evidence of Mason are-(a) that the Nizam was on the proper
side of the channel at about 6-45 p.m.; (b) she turned to
hard astarboard at about 6-45 p.m. in order to present her
stern to the Kalawati in compliance with certain wartime
orders; and (c) the Kalawati turned to port at about 6-48
p.m. after she had seen the Nizam turn to hard astarboard
some three minutes earlier. If Mason’s evidence is correct
with regard to the aforesaid three circumstances and the
Kalawati turned to port after she had seen the Nizam turn to
hard astarboard and if at the time the Kalawati was on the
wrong side of the channel, then there can be very little
doubt as to where the responsibility for the collision
should lie. Coyajee, J., accepted Mason’s evidence with
regard to the aforesaid three circumstances and held that
the responsibility for the collision lay on the Kalawati,
because she turned to port at the time she did after having
seen the Nizam turn to hard astarboard some three minutes
earlier. The learned Judges who heard the appeal did not
accept as correct Mason’s evidence that the Nizam turned to
hard astarboard at about 6-45 p.m. in order to present her
stern to the Kalawati ; on the contrary, from the evidence
of McLure and Abdul Nabi read with the evidence of Mason,
they came to the conclusion that it was impossible to accept
the appellant’s case that the Nizam turned starboard at 6-45
p.m. and it was more likely that she turned to starboard at
about 6-48 p.m. after she had heard the signal of the
Kalawati that she was turning to port. In other words, the
learned Judges found that the Kalawati had turned to port
first in order to avoid an imminent risk of collision and it
was then that the Nizam
995
altered her course to starboard in order to get to the
proper side of the channel.
The question before us is which of these two views is
correct. On a careful consideration of the evidence and the
submissions made thereon by learned counsel for the parties,
we are of the opinion that the view of the learned Judges
who heard the appeal is the correct view. According to the
evidence of Mason, he checked the bearings of the Nizam
before he left the bridge at 6 p.m. and on checking the
bearings from the Madras Light House and a conspicuous white
house on the north side of the harbour, he found that the
Nizam was two cables on the proper side of the channel. It
appears that there should have been a dan buoy in mid-
channel to mark the mid-line. Mason said that he looked for
it , but did not find it. There was a fairway buoy at the
end of the channel, that is, near the mouth of the channel
from the open sea. It is not disputed that the Kalawati
entered the channel south of the fairway buoy and was at the
time of the entry into the channel on the wrong side. The
question, however, is what was the position of the two boats
at the relevant time, namely, at about 6-45 p.m. when the
distance between the two boats was about a mile or so.
Mason’s evidence itself shows that at about 6-45 p.m. both
the boats were near about the mid-line of the channel. It
is to be remembered that though the Nizam was about two
cables on the proper side of the channel at about 6 p.m.,
she had altered her course 80 to port, even according to
Mason, at about 6-38 p.m. Abdul Nabi’s evidence indicated
that the Nizam had altered her course to port by about 10′.
Even allowing for the set of the tide, if the Nizam had
continued in her port course in order to overtake the
Kalawati (as Mason was then under the impression that the
Nizam was overtaking the Kalawati), she would cross the mid-
line and go into the wrong side of the channel. It is
worthy of note that in the plaint there was no mention of
the circumstance that the Nizam altered her course to port
in order to overtake the Kalawati, on the wrong impression
that – both the boats were going in the same direction. But
be that
996
as it may, it is quite clear that the Nizam did alter ,her
course to port at about 6-38 p.m, and if she continued in
that course till about 6-48 p.m., she would be near the mid-
line of the channel or just across it at the relevant time.
Mason admitted this and said in cross-examination: ” At 18-
45 1 was just about in the mid-channel and the Kalawati was
then steering a crossing course “. Mason prepared a chart to
show the position of the two boats and this was marked as
Ext. A. This chart also showed that at about 6-45 p.m. the
Nizam was on the mid-line and if the Nizam had continued her
port course she would be on the wrong side of the channel at
about 6-48 p.m. Even though the Kalawati had entered the
channel south of the fairway buoy, which was her wrong side,
she was steering a course north 80 degree west, making an
allowance for a southerly drift of about 1 or 1.5 knots. By
steering that course the Kalawati would also be near the
mid-line of the channel at about, 6-45 p.m. She would be on
her right side of the channel at 6-46 p.m. This is also made
clear from the chart, Ext. A. Learned counsel for the
appellant repudiated the correctness of the chart, Ext. A,
but it is a chart prepared by his own witness and so far as
the position of the Nizam was concerned, the chart must have
been prepared on the position and course of the Nizam as
given by the appellant’s own witnesses. We see no good
reasons for discarding the chart, Ext. A. At our request
the assessors also prepared a chart showing the position of
the two boats on the following assumptions:.(a) Nizam’s
speed about 10.2 knots,(b) Kalawati’s speed about 11
knots, (c) the set of the tide about.71 knots and (d) length
of the swept channel about 18 miles. This chart also showed
that at about 6-45 p.m. the Nizam was on the mid-line and
the Kalawati had crossed the mid-line into her right side of
the channel. If the set of the tide was two knots or three
knots, as some of the witnesses said, then both the Nizam
and the Kalawati would be outside the swept channel, and if
the Kalawati was sighted two points on the starboard bow of
the Nizam she would be further south of the southern limit
of the
997
swept channel. On a consideration of the evidence in the
case it appears to us that at the relevant time, namely, 6-
45 p.m., both the boats were near about the mid-line, may be
a little on the right or wrong side of it, and the distance
between the two boats was about one mile at that time. The
very elaborate argument of learned counsel for the appellant
based on Art. 25, which requires every steam vessel in a
narrow channel to keep to the starboard side of the channel,
loses much of its force when we remember that at the
relevant time the two boats were near the mid-line of the
channel and, according to Mason, the Kalawati was then
crossing to starboard port. One of the assessors, Commodore
Chatterjee, gave as his opinion that if the Kalawati was
coming from the south, it would be easier for her to enter
the channel south of the fairway buoy and he would not
consider it as a breach of the rules of the road unless the
Kalawati was embarrassing another ship Coming out of the
channel. Capt. Cleeve said that as a merchant ship captain
he would never do it, but as a naval ship captain he might
do it and although it might be against the spirit of the
regulations, it would not be a breach of them. It is to be
remembered again that the Kalawati entered the channel at
about 6-25 p. m. and at the time the Nizam was about seven
miles away. We do not, therefore, think the circumstance
that the Kalawati entered the swept channel south of the
fairway buoy decisive on the issue of negligence. As we
have remarked earlier the decisive question is what was the
position of the two boats at the relevant time, namely, at
about 6-45 p.m.? The evidence leaves no room for any doubt
that at the relevant time the two boats were near about the
mid-line of the channel.
The question is what happened thereafter ? Mason said that
from 6-38 to 6-41 p.m. he assumed that he was overtaking the
Kalawati; from 6-41 to 6-45 p.m. he was in two minds and
when at 6-45 p.m. the Kalawati signalled the Nizam, then
Mason came to know that the Kalawati was steering a crossing
course. Mason said that he then changed to hard starboard.
998
This part of the evidence of Mason is flatly contradicted by
Abdul Nabi and is -further not supported by several
circumstances to which we shall presently refer. It is true
that none of the witnesses gave the time with the precision
of a watch and what they said about time was more or less
approximate. Abdul Nabi was, however , very definite that
Mason first ordered the Nizam to steer 80 to port; then
there was a second order to go to the former course and
lastly there was an order to go hard astarboard. If Abdul
Nabi is telling the truth, then even making due allowance
for the approximate nature of the times which he mentioned,
the evidence of Mason that he changed the course of the
Nizam to hard astarboard at about 6-45 p.m. cannot be
correct. Then, take the following circumstances one by one.
If Mason had changed the course of the Nizam to hard
astarboard, why did he not give a signal to indicate the
change of course ? The evidence is very clear on this
point. It was the Kalawati which gave two short blasts at
about 6-48 p.m. to indicate that she was changing to port.
Thereafter the Nizam replied by one short blast indicating
that she was changing to starboard. If the Nizam had
changed to starboard three minutes earlier, why was no
signal given ? It is necessary to refer here to Art. 28
which says that when vessels are in sight of one another a
steam vessel under way shall indicate the course taken by
her. Mason made an attempt to say in his evidence that Art.
28 was not adhered to in wartime; but then he had to admit
that only a few minutes after, the Nizam did give one short
blast in reply to the two short blasts of the Kalawati. It
is obvious that Art. 28 was not abrogated during wartime and
it was the duty of the Nizam to indicate by one short blast
that she was changing to starboard, if she actually did so
at 6-45 p.m. We are, however, of the opinion, in agreement
with the learned Judges of the appellate Bench, that the
Nizam did not change her course to starboard at 6-45 p.m. as
Mason wants us to believe; on the contrary, the Nizam
continued her port course till about 6-48 p. m. and she
changed to starboard only after she had heard the two blasts
from
999
the Kalawati. This, we think, is clear from two very
important circumstances. McLure admitted in his evidence
that at the speed and under the conditions prevailing
immediately before the collision, it would take the Nizam
about 2 1/2 minutes to swing 90′ with her helm hard over.
If actually Mason had altered the course of the Nizam to
hard astarboard at 6-45 p.m., then she would be heading back
towards Madras at the time’ when the collision took place.
Even McLure said: ” If Mason’s statement is correct, I
should have expected my ship to be heading at right angles
to her former course.” That was not, however, the position
of the Nizam when the collision took place. The assessors
were agreed that once the wheel had been placed hard
starboard, it was not possible to put the wheel further to
starboard. If actually more than five minutes had passed,
after the Nizam had been put hard starboard, she would be
swinging starboard all the time and she would take a turn of
about 180′ within five minutes. In any event, by about 6-48
p.m. she would be at right angles to her former course, as
stated by McLure. We think that McLure’s evidence on this
point destroys the case of Mason that he had altered the
Nizam’s course. to hard astarboard at 6-45 p.m. Then there
is the second important circumstance that McLure admitted
that he knew nothing about any helm action of the Nizam from
5-55 p.m. to 6-48 p.m. McLure said :
” First I heard at 6-43 p.m. two bells indicating an object
on the starboard bow. I was still in my cabin at the time.
I was reading Admiralty messages. I heard two blasts from
the other ship at 6-48 p. m. I have no recollection of
feeling any helm action of my ship before that. I
immediately went up on the bridge. The Nizam did not sound
one blast till I had reached the top of the ladder. That
would normally suggest that the Kalawati had turned to port
first “. McLure further said that when a ship alters course
and signals, the alteration and the signal must be
simultaneous. It would be surprising indeed that McLure
would not notice the helm action to hard starboard if
actually the Nizam had been put hard
1000
starboard at 6-45 p.m. The assessors were asked about this
matter and Commodore Chatterjee said that if the helm was
put hard over, be would feel it even if he was asleep.
Capt. Cleeve said that the master of a fast ship would feel
the helm action sooner than the master of a slow ship,
probably twenty to thirty seconds sooner. McLure, however,
felt no helm action at all up till 6-48 p.m. This also shows
that the story of Mason that he changed the course of the
Nizam to hard astarboard at 6-45 p.m. was not correct.
The reason which Mason gave for altering the course of the
Nizam hard a-starboard at 6-45 p. m. was an alleged war-time
order that a merchant vessel when challenged must turn away
from the challenging vessel. This reason is far from
convincing. No such war-time order was produced in
evidence. In Ex. C (Surveyor’s report dated January 27,
1941) the reason for the starboard action was stated thus:-
” At 6-45 p. m. the other vessel appeard to be about one
point on the starboard bow and about one mile distant and to
be beading to cross the bows of s. s. ” Nizam “. The helm
put bard astarboard in order to pass astern of the other
vessel.”
There was no reference to any wartime order or regulation
then. McLure said in his evidence:
” The rule about turning away from a challenging vessel was
a secret matter and I did not think it fit to mention it
even to my Managing Agents. Mason told me he originally
steered to starboard in order to pass port to port.”
Even Mason was far from being firm as to the reason which
led him to turn hard astarboard at 6-45 p. m. Having said
that the only reason was the alleged wartime order, he
changed and said that he turned hard starboard because he
was dazzled with the Aldis lamp signal and the Kalawati was
too close. He admitted that he knew then that the Kalawati
was a patrol vessel which was not hostile; yet he wanted to
turn astern, as the Nizam had a gun mounted astern! Again,
he changed and gave a third reason for going hard starboard,
namely, he wanted to get out of the way of the Kalawati. In
this state of the evidence, it is
1001
impossible to place implicit reliance on Mason’s evidence
that he turned hard starboard at 6-45 p. m. for the reason
that a so-called war-time order required him to do so.
Learned counsel for the appellant drew our attention to the
respondent’s evidence on this point. The respondent said:
” When a ship is challenged she gives her name and turns
round but not in the swept channel or in the harbour.
I do not agree that in the swept channel when a ship was
challenged to give her name she would have to turn round. I
did state before the Marine Enquiry that when a merchant
ship is challenged she would turn about necessarily by
starboard movement and give her name and the turning about
would be action preparatory to running away and that owing
to war these regulations were in force. I gay that I was
trapped into giving answers by vague questions.”
We agree that the respondent’s evidence is not very
ingenuous; but it cannot be accepted as an admission which
relieved the appellant from proving the existence of a war-
time order or regulation of the kind and nature suggested by
Mason in his evidence. Mason’s evidence taken as a whole
seems to indicate that the order to turn hard starboard came
much later than 6-45 p. m. and the reason for the order was
to get back to the right side of the channel and to get out
of the way of the Kalawati, if possible. Unfortunately, the
action was taken too late and after the Kalawati had already
turned to port. On the evidence, we are unable to hold that
the Nizam took starboard action before the Kalawati turned
to port.
The question now arises-why did the Kalawati turn to port at
about 6-48 p. m. and in doing so, did she commit an act of
negligence or an act which in any way contributed to the
collision? On behalf of the appellant, it has been argued
that even if we find on the facts that the Kalawati took
port action first, this action was wholly unjustified and
wrong and, in any event, the Kalawati could and should have
gone to starboard to avoid the collision; therefore, she was
wholly to blame. Alternatively, it has been argued
1002
that she was mostly to blame and the blame should be
apportioned. Ike shall deal with the alternative argument
at a later stage.
The question is-why did the Kalawati turn to port at about
6-48 p. m. ? We think that Mason’s own evidence furnishes an
answer to the question. We know from the Kalawati’s log
book that she entered the swept channel at about 6-25 p. m.
south of the fairway buoy and she was then steering a course
of north 80′ west; by about 6-45 p. m. she was on the mid-
line of the channel when she sighted the Nizam on the port
bow. The Nizam had already altered her course to port.
Mason summarised the position at 6-45 p. m. thus: ” At 18-45
she (meaning the Kalawati) was about one mile on my
starboard bow and was crossing to starboard port.” Capt.
Cleeve thus explained the meaning of the aforesaid
statement: “That means that the distance between the two
boats was one mile, and she (Kalawati) was a mile, off to my
(Nizam’s) starboard bow and she was crossing from my
starboard ‘to my port. ” Mason further clarified the
position by saying that the two boats were then steering
crossing courses and it was not correct to say that if both
ships had kept their course and speed as it was at 6-43 p
m., they would have passed port to port. Mason also said
that ” the two boats were on converging courses at 18-45
hours “. ,Obviously, there would have been a collision, if
no avoiding action was taken. by either boat. That is why
Mason was at pains to point out in his evidence that he took
starboard action at 6-45 p. m. to get out of the way of the
Kalawati and if both. the ships, had kept their courses as
they were immediately after Mason had starboarded at 6-45 p.
m., they would have passed port to port with about half a
mile to spare. We have found, however, that Mason’s
statement that he had starboarded at 6-45 p. m. was not
correct. The position, therefore, was that. the two boats-
were on crossing courses in a, narrow channel and when the
Kalawati signalled with the Aldis lamp, she found that the
Nizam was still steering to port. The Aldis lamp has a
small telescope attached to it and from a demonstration made
in Court, it became obvious that
1003
the respondent was in a position to see through the
telescope what course the Nizam was taking. At? about 6-48
p. m. the distance between the two boats was less than half
a mile, and unless the Kalawati took avoiding action, a
collision was imminent. Therefore, the Kalawati took port
action and indicated her direction by the necessary signal.
The justification for the port action of the Kalawati was
the continuance of the Nizam on a port course–a course
which was not only taking the Nizam over the mid-line into
the wrong side of the channel but was also making her
converge on the course of the Kalawati. The Kalawati was
the standing on vessel, and it was the duty of the Nizam to
get out of the way. Instead of doing that, the Nizam
persisted in her port course and changed to hard starboard
after the Kalawati had justifiably taken port action to
avoid an imminent risk of collision. It has been argued
before us that the Kalawati should have anticipated that
sooner or later the Nizam would correct her mistake and go
to the starboard side of the channel and, therefore, as the
standing on vessel, the Kalawati should have kept her course
and speed as required by Art. 21, and if she had done so,
there would have been no collision. This argument fails to
take note of the perilous position in which the Kalawati was
placed by the continuance of the Nizam in a port course till
about 6-48 p. m. and furthermore ignores Arts. 27 and 29
under which when a vessel finds herself so close to another
vessel that a collision cannot be avoided by the action of
the giving-way vessel alone, she must also take such action
as will best aid to avert collision. The Kalawati was,
therefore, justified, in taking port action at 6-48 p. m.
when a collision seemed imminent and perhaps the collision
would have been averted if the Nizam had not taken the
unfortunate action of hard starboarding after the Kalawati
had taken port action. McLure realised the position as soon
as he came on the bridge at 6-49 p. m. and ordered full
speed astern. Unfortunately, it was too late then. If
Mason had followed the provisions of Art. 23 and had
slackened the speed of or reversed the Nizam between 6-45 p.
m. and 6-48 p. m. the collision might have been averted.
1004
Instead, however, he ordered the Nizam to be put hard
starboard at about 6-48 p. m. This, in our opinion, was an
act of negligence, which was primarily responsible for the
collision. The findings of the learned trial Judge were, in
our view, vitiated by reason of the circumstance that be
accepted as correct Mason’s evidence that he had put the
Nizam bard astarboard at 6-45 p. m. in the teeth of
circumstances which showed clearly enough that Mason’s
evidence about starboarding at 6-45 p. m. could not be
correct. These circumstances were-(I) if Mason had put the
Nizam hard starboard at 6-45 p. m., the Nizam would be 90′
to her former course by 6-48 p. m. and by 6-49 or 6-50 p. m.
she would be turning towards Madras; (2) McLure did not feel
any such helm action at 6-45 p. m.; (3) the Nizam gave no
signal of starboarding at 6-45 p. m. but gave such signal
after the Kalawati had turned to port soon after 6-48 p. m.;
and (4) the reason which Mason gave for starboarding at 6-45
P. m. did not stand the test of scrutiny. In the court of
appeal below, one of the assessors, Commander Kale, said
definitely that the only war-time restrictions in 1940 were
with regard to lights and wireless communication. He said
that signals bad to be given by ships when they decided to
change their course, and the more so when ships were in
restricted waters and there was another vessel coming ahead.
We think that the learned Judges who heard the appeal
rightly emphasised the importance of the circumstances
stated above, and having given them due weight, rightly
reversed the findings of the learned trial Judge.
To summarise our conclusions now: (1) we accept the position
that the Kalawati entered the channel at 6-25 p. m. on the
wrong side and the Nizam was two cables on the right side at
about 6 p. m.; but by 6-45 p. m., the two boats were
opposite each other near about the mid-line of the channel,
the distance between the two being then a little more than a
mile; (2) the Nizam did not take any hard starboard action
at 6-45 p. m.- rather she continued to steer to a port
course till about 6-48 p. m. and probably went over the mid-
line into the wrong side of the channel ; (3) when the
Kalawati signalled with the Aldis lamp, she
1005
noticed that the Nizam was steering to port and was on a
course converging on the Kalawati and at about 6-48 p. m.
the Kalawati took avoiding action by turning hard to port
and gave a signal to that effect; (4) the Nizam then took
starboard action to get back to the right side of the
channel and get out of the way of the Kalawati; and (5) when
McLure came on the bridge at about 6-49 p. m. he ordered
full speed astern -but it was too late and the collision
took place at about 6-51 or 6-52 p. m.
On the aforesaid findings there is little difficulty left in
adjudging where the responsibility lies for the collision.
As we have said earlier., the responsibility lies with the
Nizam.
It is necessary to notice now, very briefly, two decisions
on which learned counsel for the appellant has relied: ” The
Tioga ” (1) and the ” Empire Brent ” (2). In the Tioga the
question for consideration was the liability for damages in
respect of a collision which occurred in the swept channel
of the N. E. Coast of England between the Pundit, a ship in
the port column of a south-bound convoy of eight ships, and
the Tioga, an independent north-bound ship. The decision
proceeded on the footing that south bound ships were under a
strict duty to keep within the western half of the channel
and north-bound within the eastern half, thus passing each
other port to port. Down the centre of the channel there
was a line of flashing buoys four or five miles apart.
There was a general prohibition of navigation lights, which
made the strict observance of the; rule of the road in the
swept channel exceptionally imperative. The night was
overcast and dark, and there was drizzling rain diminishing
visibility. In those circumstances, it was found that the
Pundit, instead of keeping to her right water, trespassed
into the Tioga’s water, and furthermore when she first saw
the Tioga’s red at a quarter of a mile away, her instant
duty was to starboard out of the Tioga’s way so as to pass
port to port. This the Pundit failed to do. Therefore, the
Pundit was held responsible on two grounds, which Scott, L.
J., explained in the following words:-
(1) (1945) 78 Ll. L. Rep. 1 (Lloyd’s List Law Reports).
(2) (1948) 81 Ll. L. Rep. 306 (Lloyd’s List Law Reports).
1006
” The two ships were either meeting or crossing; and in
either case it was the Pundit’s duty to pass the Tioga port
to port. If they were crossing ships it was also her duty
to keep out of the way of the Tioga and go under her stern;
if meeting ships, simply to starboard her helm. In
addition, there was the special duty of the Pundit in that
channel to regain her right water. She had been blundering
out of it and endangering north bound traffic; and I
entirely agree with the learned Judge’s view that for that
reason alone she was seriously to blame; and that position
of itself would entitle the Tioga to expect her to be
actually on a starboard helm, correcting her error, at the
moment she put her lights on “.
We do not think that the decision in the Tioga is of any
great assistance to the appellant. On our findings, it was
the duty of the Nizam to keep out of the way of the
Kalawati; and at 6-48 p.m. the Nizam was in all probability.
in her wrong water and the Kalawati in her right water – at
any rate – both were near the mid-line of the channel, and
in these circumstances, the Nizam’s action in starboarding
after she had seen the Kalawati, turn to port cannot be
justified either on the principles laid down in the decision
aforesaid or on the provisions of the rule of the road in a
narrow channel.
In the Empire Brent the collision took place in the river
Mersey between the steamship Starmont and the steamship
Empire Brent. It was found that so far as the Starmont was
concerned, she deliberately set a course which meant that
for most of the way up the river she was necessarily
proceeding on the wrong side of the river for her. The
Empire Brent had just left the Princes Landing Stage when
she had to cope with the situation created by the approach
of the Starmont. In these circumstances it was held that
the Starmont was wholly in the wrong for coming up on the
eastern side of the river and for breaking in that way the
narrow channel rule which prevails in the Mersey. Willmer,
J., said:-
” I find it difficult to find words sufficiently strong to
condemn the action of a man who persists in coming up on the
wrong side of the river–especially as this
1007
action of the Starmont was quite deliberate and was merely
for the purpose of her own convenience.”
Dealing with the alternative case that the starboarding
action of the Empire Brent was the whole cause of the
collision even if the Starmont was wrong in coming up on the
eastern side of the river, the learned Judge observed:
” That alternative way of putting the case has become
academic, having regard to my finding that the vessels were
green to green at any rate up to the time when they were
about three – quarters of a mile apart. But, lest it should
be thought that I agree with it, I should like to take the
opportunity of saying that I regard that contention as
wholly wrong. As I understand the principles which apply in
narrow channels, it has been laid down for many, many years
that, although the crossing rule does from time to time have
to be applied in narrow channels (when, for instance, a
vessel which is crossing the channel has to act in relation
to a vessel which is proceeding up or down the channel),
nevertheless, when vessels are approaching each other,
navigating respectively up and down the channel, it is Art.
25 of -the Collision Regulations which applies and applies
exclusively. There is no room in such a situation for
applying the provisions of the crossing rule. at the same
time as the provisions of the narrow channel rule, because
the requirements under the rules are different. I have no
hesitation in saying that as between a vessel coming up and
a vessel going down, approaching each other in that way in a
narrow channel like the Mersey, the narrow channel rule, and
the narrow channel rule only, is the rule which has to be
applied. However, that is a digression, because, having
regard to my findings of fact, the point is academic.”
Learned counsel for the appellant has placed strong reliance
on the aforesaid observations and has contended that in the
present case also the provisions of the narrow channel rule
should apply and not those of the crossing rule. We do not
see how a strict or exclusive application of the narrow
channel rule will help the appellant in the present case.
We have found that the Nizam was in her right water at about
6 p.m.
1008
but she had altered her course to port later and at about
6-45 p.m. she was near the mid-line and at 6-48 p.m. when
she starboarded in answer to the Kalawati’s port action, she
was in all probability in the wrong water. The Nizam
cannot, therefore, say that if the narrow channel rule only
applied, she is bound to succeed. We do not, therefore,
think that the ratio of the decision in the Empire Brent
helps to establish the case of the appellant.
In view of our findings, we consider it unnecessary to deal
with the alternative claim of the appellant as to an
apportionment- of the blame for the collision in question.
We do not think that the Kalawati was to blame for taking
port action when she did, and we have already stated our
reasons therefor. There is a further difficulty in the way
of the appellant. It is true that the question of
contributory negligence was one of the issues before the
learned trial Judge, but in the view which he took of the
evidence, he considered it unnecessary to decide it. The
appeal was decided on the footing that the Kalawati was not
guilty of negligence and the entire liability for the
collision was that of the Nizam. The appellant has no doubt
contested the correctness of the findings arrived at by the
learned Judges of the appellate bench; but neither in the
memorandum of appeal nor in the statement of the case
presented to this Court did the appellant raise the
alternative claim which it has now raised. During the
course of the hearing of the appeal in this Court, a
petition was made for adding a fresh ground of appeal in
order to raise the alternative claim of an apportionment of
liability for the collision under the rules for the division
of loss prescribed under the Maritime Conventions Act, 1911.
We do not think that the prayer for an alternative claim can
be allowed at this stage, because on our findings there is
no case for an apportionment of the blame.
In the result, the appeal fails and is dismissed with costs.
We have already passed orders for the payment of the fees of
the two assessors, and no fresh orders thereon are
necessary.
Appeal dismissed.
