{"id":169719,"date":"1959-01-12T00:00:00","date_gmt":"1959-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-asiatic-steam-navigation-co-vs-sub-lt-arabinda-chakravarti-on-12-january-1959"},"modified":"2017-07-20T00:32:57","modified_gmt":"2017-07-19T19:02:57","slug":"the-asiatic-steam-navigation-co-vs-sub-lt-arabinda-chakravarti-on-12-january-1959","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-asiatic-steam-navigation-co-vs-sub-lt-arabinda-chakravarti-on-12-january-1959","title":{"rendered":"The Asiatic Steam Navigation Co., … vs Sub-Lt. Arabinda Chakravarti on 12 January, 1959"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Asiatic Steam Navigation Co., … vs Sub-Lt. Arabinda Chakravarti on 12 January, 1959<\/div>\n
           PETITIONER:\nTHE ASIATIC STEAM NAVIGATION CO., LTD.\n\n\tVs.\n\nRESPONDENT:\nSUB-LT.\t ARABINDA CHAKRAVARTI\n\nDATE OF JUDGMENT:\n12\/01\/1959\n\nBENCH:\n\n\nACT:\nShipping-Collision-Negligence--\" Standing on \" vessel-Giving\nway \" vessel-Rights an duties-Nautical assessors-Advice\t not\nbinding on Court-Merchant Shipping Act, 1894 (57 & 58  Vict.\nc. 60) Regulations of 1910, Arts. 21, 23, 25, 27, 29.\n\n\n\nHEADNOTE:\nOn  December  13, 1940, in the afternoon, a cargo  ship,  N,\nleft Madras harbour bound for Calcutta heading for the\topen\nsea.  She was being navigated in a swept channel outside the\n980\nharbour our and was on her proper, namely the starboard side\nof  the channel.  At that time a patrol ship, K, was  on  an\nopposite  course making for Madras harbour and\tentered\t the\nchannel\t at  about  6-25 p. m. At 6-30 p. m.  N\t decided  to\novertake  K by going port on an erroneous assumption that  K\nwas  going  in the same direction as N and was\tnot  an\t on-\ncoming\tship.\tBy about 6-45 P.m. when K sighted N  on\t the\nport  bow the two ships were opposite each other near  about\nthe  mid-line of the channel, the distance between  the\t two\nbeing then a little more than a mile.  N continued her\tport\ncourse and went over the mid-line into the wrong side of the\nchannel and at about 6-48 P. m. the distance between the two\nships was less than a mile.  K noticed at that moment that N\nwas  converging on her and accordingly in order to  avoid  a\ncollision  K turned to hard port and gave a signal  to\tthat\neffect.\t  N, however, took starboard action to get  back  to\nthe  right side of the channel and get out of the way of  K.\nAt  about 6-49 P. m. finding that a collision  was  imminent\nthe commander of N ordered full speed astern, but it was too\nlate and a collision took place at about 6-5I P. m.\nThe appellant, the owner of N, instituted a suit for damages\nagainst\t the  respondent,  who was one of  the\tofficers  in\ncharge\tof and responsible for the navigation of K,  on\t the\nplea  that  the\t collision  was\t caused\t by  the   negligent\nnavigation  of K. The trial judge who had been\tassisted  by\nnautical advisers, held that K wrongly altered her course at\nthe moment when she did, and if any step had to be taken she\nshould have altered not to port but to starboard, and if any\nother action was necessary, she should have put her  engines\nfull  speed astern.  On appeal, the High Court,\t which\talso\nhad  the assistance of two assessors, reversed the  findings\nof the trial court and dismissed the suit.  On appeal to the\nSupreme\t Court, the appellant contended that K\tshould\thave\nanticipated that sooner or later N would correct her mistake\nand go to the starboard side of the channel and,  therefore,\nas the \" standing on\" vessel, K should have kept her  course\nand  speed  as\trequired by Art. 21 Of\tthe  Regulations  of\n1910,  made under the Merchant Shipping Act, 1894, and\tthat\nif she had done so, there would have been no collision.\t  As\nin  the lower courts, this Court also had the assistance  of\ntwo assessors.\nHeld, that K was justified in taking port action at 6-48  p.\nm. when a collision seemed imminent, in view of Arts. 27 and\n29  of\tthe  Regulations under which  when  a  vessel  finds\nherself\t so close to another vessel that a collision  cannot\nbe  avoided by the action of the \"giving way\" vessel  alone,\nshe  must  also take such action as will best aid  to  avert\ncollision.\nHeld, further, that it was an act of negligence on the\tpart\nof N to take hard starboard action, instead of following the\nprovisions  of\tArt. 23, as the \" giving way  \"\t vessel,  by\nslackening  the speed of or reversing N between 6-45  p.  m.\nand 6-48 p. m.\n\"The  Tioga  \", (1945) 78 LI.  L. Rep. 1 and  \"\t The  Empire\nBrent \", (1948) 81 LI.\tL. Rep. 306, distinguished.\n\t\t     981\nThe  function of nautical assessors is to advise  the  court\nupon  nautical matters but the decision of the\tcourt  rests\nentirely with the court and even in purely nautical  matters\nthe  court  is\tI  not bound to follow\tthe  advice  of\t the\nassessors,  but on questions of nautical science  and  skill\ngreat attention must be paid to the opinion of the assessors\nsince  they  are  the only source of  information  on  these\npoints and some reason must be given for disregarding them.\nThe  assessors\tin an appeal court are not  substituted\t for\nthose consulted in the trial court ; they are additional  to\nthem;  and  if\tone  adviser  or  two  advisers\t are  to  be\npreferred,  it is because in the judgment of the  court\t the\nadvice given is such as, in itself, is the more acceptable.\nThe relevant articles of the Regulations of 1910, made under\nthe  Merchant  Shipping\t Act,  1894,  are  set\tout  in\t the\njudgment.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 229 of 1954.
\nAppeal from the judgment and decree dated February 28, 1952,
\nof  the Bombay High Court in Appeal No. 34 of 1952,  arising
\nout  of the judgment and decree dated February 5,  1951,  of
\nthe said High Court in Admiralty Suit No. 1 of 1943.
\nS.   C. Isaacs, P. N. Bhagwati, S. N. Mukherjee and B. N.
\nGhosh, for the appellants.\n<\/p>\n
E.   E.\t Jhirad\t and T.\t M. Sen, for the  respondent.
\n1959.  January 12.  The Judgment of the Court was  delivered
\nby
\nS.K. DAS, J.-This appeal on a certificate given by the\tHigh
\nCourt  of  Judicature at Bombay is from the  decision  of  a
\nDivision  Bench of the said High Court in Appeal No.  34  of
\n1951,  dated February 27 and 28, 1952, by which it  reversed
\nthe  decision  of a single Judge of the said High  Court  in
\nAdmiralty Suit No. 1 of 1943 dated August 8, 1950.
\nThe  appellant, Asiatic Steam Navigation Company Ltd., is  a
\ncompany\t  incorporated\tin  the\t United\t Kingdom  with\t its
\nregistered  office in London and has an office in  Calcutta.
\nThe  respondent is ex-Sub-Lieutenant  Arabinda\tChakravarti,
\nwho at all material times was a commissioned officer in\t the
\nthen Royal Indian Navy with its headquarters at Bombay.\t The
\naction which the appellant brought arose out of a  collision
\nin
\n982<\/span>
\na  swept  channel,  a little  distance\toutside\t the  Madras
\nharbour,  on December 13, 1940, at about 6-51 p.m.  The\t two
\nships  concerned in the collision were the cargo vessel,  S.
\nS. Nizam of 5,322 gross tons and H. M. S. Kalawati, a patrol
\nship   of  1,185  tons.\t  For  the  sake  of   brevity\t and
\nconvenience,  these two vessels will be referred to in\tthis
\njudgment as the Nizam and Kalawati.  At all material  times,
\nthe  appellant\towned the Nizam and the respondent,  it\t was
\nstated, was one of the officers in charge of and responsible
\nfor the navigation of the Kalawati . One F. C. H. Mason\t was
\nthe  Chief Officer of the Nizam and the Master\twas  Malcolm
\nJohn  McLure.  Henry Lee was the Commander of  the  Kalawati
\nand  Arabinda Chakravarti, as stated above, was one  of\t the
\nofficers in charge of and responsible for the navigation  of
\nthe Kalawati at the relevant time.\n<\/p>\n
The  case set out by the appellant in the plaint  was  this.
\nOn December 13, 1940, in the afternoon the Nizam, which\t was
\nthen under charter to the Ministry of Shipping, left  Madras
\nharbour\t bound for Calcutta carrying a cargo.  She was\tthen
\ntight,\tstaunch,  strong, well manned and in  every  respect
\nsound  and  fit.   A few minutes after 6-45  p.m.  when\t the
\nweather was fine, clear but cloudy, the moon full, the\twind
\nmoderate, the sea calm and the set of the tide from north to
\nsouth,\tthe  Nizam was being navigated in  a  swept  channel
\noutside\t  the  Madras  harbour.\t  The  swept   channel\t wag
\napproximately about one mile wide and seventeen miles  long.
\nThe Nizam was heading for the open sea on her proper  course
\nto  Calcutta  and  was\tbeing  navigated  in  a\t proper\t and
\nseamanlike  manner  and\t was  on  her  proper,\tnamely\t the
\nstarboard  side\t of  the channel.  The Kalawati\t was  on  an
\nopposite course making for Madras harbour.  The Nizam having
\nthe  Kalawati  about one point on her  starboard  bow  star-
\nboarded with the result that the two vessels were about\t one
\nmile  apart on courses which would result in  their  passing
\nfrom  -port  to port with a distance of about  half  a\tmile
\nbetween\t them.\tAt that time, the Kalawati made a ” light  ”
\nsignal\tto  the Nizam; the signal was not  legible  and\t the
\nNizam sent a signal
\n983<\/span>
\nwhich asked for a repetition of the signal of the  Kalawati.
\nThe  Nizam  continued hard to starboard,  but  the  Kalawuti
\naltered course to port with the result that the Kalawati was
\nconverging on the course of the Nizam.\tThe Nizam  continued
\nto  go\tto starboard and the Kalawati to  port;\t thereafter,
\nwhen  a\t collision seemed very imminent, the Nizam  was\t put
\nfull speed astern, but the Kalawati was navigated across the
\nbows  of  the Nizam and the result was\tthat  the  starboard
\nquarter of the Kalawati came into collision with the bows of
\nthe Nizam.  The Kalawati then pivoted round the bows of\t the
\nNizam and again came into collision with the latter.   After
\nalleging  the facts stated above, the appellant\t pleaded  in
\nthe  plaint that the collision was caused by  the  negligent
\nnavigation of the Kalawati and the following particulars  of
\nthat negligence were given: (a) alteration of the Kalawati’s
\ncourse\tto  port so as to take her across the  bows  of\t the
\nNizam;\t(b) failure of the Kalawati to stop or to go  astern
\nand\/or\tto put her helm hard a-starboard when there was\t yet
\ntime  for her to do so and avoid a collision; (c) in  breach
\nof  the Regulations for the Prevention of Collisions at\t Sea
\nthe Kalawati failed to keep to her proper side, namely,\t the
\nstarboard  side of the channel, when it was her duty  to  do
\nso,  and further the Kalawati failed to keep out of the\t way
\nof the Nizam when it was her duty to do so and (d) a  proper
\nlook-out was not kept on board the Kalawati. The total claim
\nwhich the appellant preferred forthe damage sustained was  a
\nsum  of Rs. 88,000 and odd and particlars of the claim\twere
\nset out in sch.\t B of the plaint.\n<\/p>\n
In his written statement the respondent denied any liability
\nfor  the  damage sustained by the Nizam.  The  case  of\t the
\nrespondent  as set out in his written statement was, to\t put
\nit  briefly, this.  The respondent said that at\t about\t6-45
\np.m.  on December 13, 1940, he was the officer on watch\t and
\nthe Kalawati was steering a course north 800 west keeping to
\nthe  Kalawati’s proper side of the channel.  The  Nizam\t was
\nsighted\t at about that time, about 20′ on the port side\t and
\nabout 2 1\/2 miles away, heading for the open sea and
\n984<\/span>
\nsteering  eastwards  and  running a  parallel  and  opposite
\ncourse.\t  Due to certain wartime regulations, the lights  of
\nboth the vessels were blacked out.  According to the courses
\nwhich  the  Nizam and the Kalawati were then  pursuing\tthey
\nwould  have  passed each other clear port to  port  and\t the
\nrespondent  signalled  to the Nizam with  a  portable  Aldis
\nLamp,  and asked for her identity.  The Nizam  replied\twith
\none  long  flash indicating that she was  ready\t to  receive
\nsignals\t from the Kalawati.  As the respondent was about  to
\ncontinue  signalling, he noticed that the Nizam altered\t her
\ncourse\tto port in such a manner that she was converging  on
\nand  crossing  the course of the Kalawati.   The  respondent
\nthen  stopped signalling and as the Nizam continued  on\t the
\nwrong  course taken by her until her bows were fine on\tthe.
\nport bows of the Kalawati, a collision seemed imminent,\t the
\ntwo vessels then being about two cables apart.\tIn order  to
\navert the imminent risk of collision the respondent  ordered
\nthe  Kalawati  to  be  put  hard  aport\t and  simultaneously
\nindicated  to  the Nizam the alteration\t of  the  Kalawati’s
\ncourse.\t  The  Nizam,  however, instead of  keeping  to\t the
\ncourse already taken by her and passing the Kalawati on\t the
\nstarboard side, erroneously attempted to correct the earlier
\nwrong  course taken by her and attempted to go back  to\t her
\nproper\tside  of the channel.  The Nizam  then\taltered\t her
\ncourse\tto  hard  starboard with the  result  that  the\t two
\nvessels were in such a position that it was not -possible to
\navert  a  collision either by slackening the  speed  of\t the
\nKalawati or by going astern.  In substance, the case of\t the
\nrespondent  was\t that  the  collision  was  caused  by\t the
\ncircumstances  (a)  that  the Nizam failed to  keep  to\t her
\nproper side of the channel, (b) that she continued to  -port
\nin  such  a  manner as to put the  Kalawati  in\t a  perilous
\nposition  and the Kalawati had to take avoiding\t action\t and
\nfinally\t (c) the Nizam was negligent in altering her  course
\nto  hard astarboard after being made aware  repeatedly\tthat
\nthe  course  of\t the  Kalawati had  been  altered  to  port.
\nTherefore,  according to the respondent, the action  of\t the
\nNizam  in steering starboard after Kalawati had\t taken\tport
\naction,\t was  the  proximate  and  effective  cause  of\t the
\ncollision.\n<\/p>\n
985<\/span><\/p>\n
On  the pleadings’ stated above, several issues were  framed
\nbut  the  principal question for decision  by  the.  learned
\ntrial Judge was if it was the negligent action’ of the Nizam
\nor of the Kalawati which caused the collision.\tIssues 1,  2
\nand  3\twere the issues which related to this  question.   A
\nfurther\t question  was\traised by issues 4 and\t6  and\tthat
\nrelated to contributory negligence, and in case it was found
\nthat  both the vessels were to blame for the collision,\t the
\nquestion raised was in what proportion the negligence of the
\nNizam and of the Kalawati contributed to the collision.\t The
\nlearned\t  trial\t Judge\tfound  in  favour  of  the   present
\nappellant.  on\tthe  principal question\t and  expressed\t his
\nfinding in the following words:-\n<\/p>\n
” I have come to the finding that the first helm action\t was
\ntaken-and  rightly  taken-at the crucial time by  the  Nizam
\ngoing hard astarboard, and the Kalawati turned to port\twhen
\nthere\twas   no   question  of\t  the\timminence   of\t any
\ncollision………..  In these circumstances, as a  standing
\non vessel the Kalawati turned – and wrongly in my opinion  –
\nto  port  and  but for her turning to  port,  there  was  no
\nquestion  of  the  two\tvessels\t coining.  into\t a  perilous
\nposition.  In these circumstances, I am of the opinion\tthat
\nthe  Nizam was justified in starboarding.  The Kalawati\t had
\nto  keep  her  course under the rule  being  a\tstanding  on
\nvessel, and should have maintained her course in that manner
\nuntil  the  last safe moment, but to my mind she  turned  to
\nport much before any such occasion arose.  On this point,  I
\nmay say that had the Kalawati to take any action at all, the
\nnormal\taction would have been going to starboard, and\tthis
\nwould have completely avoided the collision.  On this  point
\nI  may\tstate  that the nautical advisers whom\tI  have\t had
\noccasion  to  consult are in agreement with the\t view  I  am
\nadopting.\n<\/p>\n
I  may\talso  state that in my opinion\tthe  Nizam  put\t its
\nengines\t full  speed  astern at\t the  earliest\topportunity,
\nlooking\t to  the situation.  The Nizam was  put\t full  speed
\nastern\tat  least  2 1\/2 minutes  approximately\t before\t the
\ncollision took place, and even if the statement of
\n124<\/span>
\n986<\/span>
\nMcLure\tthat  she was dead slow before the  collision  is  a
\nslight\toverstatement  it must follow that the back  of\t the
\nmomentum  of  the Nizam had already been wholly\t broken\t and
\nthere  is  evidence that she was doing about 3\tto  4  knots
\ninstead\t of  her 9 to 10 knots normal speed.  On  the  other
\nband, I am clearly of the opinion that it was  fundamentally
\nwrong for the Captain of the Kalawati not to put her engines
\nfull  speed  astern  immediately he saw\t the  situation\t was
\nperilous.  In fact, instead of doing so, he went full  speed
\nahead.\tTo my mind, that was not only a wrong judgment but a
\njudgment  inspired by desperation, namely, that\t by  putting
\nthem  full  spied ahead with a bit of luck,  he\t would\thave
\ncleared himself of the nose of the Nizam.\n<\/p>\n
I have, therefore, come to the conclusion that the  Kalawati
\nwrongly\t altered her course at the moment when she did,\t and
\nif  any step had to be taken she should have altered not  to
\nport  but  to  starboard,  and\tif  any\t other\taction\t was
\nnecessary,  she\t should\t have put  her\tengines\t full  speed
\nastern.” –\n<\/p>\n
In  view of the aforesaid findings, the learned trial  Judge
\nexpressed  the\tview  that  the\t question  of\tcontributory
\nnegligence  did\t not  arise, as also the  question  in\twhat
\nproportion each contributed to the collision.The question of
\ndamages\t was, by agreement, held over until the findings  on
\nthe  question  of negligence and, after\t the  learned  trial
\nJudge  had given the necessary findings on the\tquestion  of
\nnegligence,  the damage sustained by the Nizam was  assessed
\nat  Rs. 76,893-2-8 and a decree was passed for\tthat  amount
\nwith interest thereon at four per cent. per annum from\tJune
\n19, 1941.\n<\/p>\n
The  respondent then preferred an appeal and the appeal\t was
\nheard\tby  Chagla,  C.\t J.,  and  Bhagwati,  J.  Like\t the
\ntrial  Judge, the Judges who heard the appeal also  had\t the
\nassistance of two assessors.  On the principal question.  as
\nto,  whether-  the  collision was caused  by  the  negligent
\naction.\t of  ‘the  Nizam or of the’  Kalawati,\tthe  learned
\nJudges\twho  heard the appeal reversed the findings  of\t the
\nlearned trial Judge. They said:\n<\/p>\n
“Therefore, in our opinion, on this evidence, we
\n987<\/span>
\nmust find as a fact that the Nizam did not alter her  course
\nto  starboard  at 6-45 p.m., but she did so much  later\t and
\nvery likely at 6-48 p.m. when she gave one blast to indicate
\nthe change of course.  ‘Now, if that is the fact we find, we
\nhave to consider what bearing that finding of fact has\tupon
\nthe question of the defendant’s negligence.  The question is
\nwhether\t the defendant was justified in turning his ship  to
\nport  at  6-48 p.m. if at that moment the  Nizam  was  still
\nsteering  to  port.  The question is whether  at  6-48\tp.m.
\nthere  was  a reasonable probability of\t a  collision  which
\njustified  the\tKalawati in changing her course to  port  in
\norder  to avoid that collision.\t We have the plan before  us
\nand we have the evidence before us, but as this question  of
\nfact  involves a question of nautical skill we have  availed
\nourselves  of  the assistance of the  assessors.   Commander
\nKale is emphatically of the opinion that at 6-48 p.m. if the
\nNizam  was pursuing the same course that she was doing\tfrom
\n6-38 p.m., there was a reasonable probability of a collision
\nwhich  it was the duty of the defendant to avoid as best  as
\nhe  could, and according to Commander Kale, the only way  he
\ncould  have possibly avoided it was by steering his ship  to
\nport.\tCapt.\tMalcolm does not agree with this  view.\t  He
\ntakes the’ view that the Kalawati should have rather  turned
\nto  starboard than to port, and his opinion is based on\t the
\nconsideration that the Kalawati should have assumed that  at
\nsometime or other the Nizam would turn starboard and  taking
\nthat possibility into consideration she should have gone  to
\nthe  right side and not to the wrong side.  With respect  to
\nCapt.  Malcolm, we are inclined to prefer the opinion  given
\nby Commander Kale as to what should have been done under the
\ncircumstances…  Now,\tas the Nizam was the ”\tgiving\tway”
\nvessel,\t there\twas  the  primary  obligation  upon  her  if
\nnecessary  to  stop  the ship or to go astern,\tand  on\t the
\nevidence  it is difficult to resist the conclusion that\t the
\norder to go full speed astern, could have been given earlier
\neither\tby the Captain himself or by Mason.  On\t this  point
\nboth  the assessors have expressed their opinion that  as  a
\nmatter of nautical skill
\n988<\/span>
\nit would have been possible and indeed it should have  ,been
\ndone,  viz.,  that the ship should have been ordered  to  go
\nfull speed astern earlier than 6-49 p.m.
\nIn  our opinion, therefore, there are these two facts  which
\nhave definitely contributed to the collision taking place at
\n6-52 p.m. The first is the failure on the part of the  Nizam
\nto  give  the  signal that she\twas  going  starboard,\teven
\nassuming  that\twe  accept the\tplaintiffs’  case  that\t she
\nstarboarded at 6-45 p.m. If she had given the signal then it
\nwould have given proper and full warning to the Kalawati  as
\nto  what the Nizam was doing or going to do at that  moment.
\nThe other fact which has also contributed in our opinion  to
\nthe collision is the failure on the part of the Nizam to  go
\nfull speed astern earlier than 6-49 p.m.” In the result, the
\nappeal\twas  allowed  and the action of\t the  appellant\t was
\ndismissed with costs throughout.\n<\/p>\n
We have already stated that the High Court of Bombay gave  a
\ncertificate  of fitness under Art. 133 of  the\tConstitution
\nand  the  present appeal has been brought to this  Court  in
\npursuance of that certificate.\n<\/p>\n
Two  assessors,\t Capt.\t J. A. Cleeve and  Commodore  A.  K.
\nChatterjee,  have  assisted us.\t At the very outset,  it  is
\nnecessary  to clarify two points.  Firstly, it appears\tthat
\nthe  learned Judges who heard the appeal in the Bombay\tHigh
\nCourt  did  not base their findings on the evidence  of\t the
\nrespondent or his witnesses; nor did the learned trial Judge
\nattach\t any  great  importance\t to  the  evidence  of\t the
\nrespondent or his witnesses.  The learned Judges said:-
\n”  We  do  not blame the learned  Judge\t because,  when\t the
\nevidence of both these witnesses was laid before us, we also
\nfelt that the evidence was not given in a manner which would
\ninspire confidence.”\n<\/p>\n
Learned\t counsel for the appellant has placed before  us  in
\nfull  the evidence of the appellant and its  witnesses.\t  He
\nhas  also placed before us such portions of the evidence  of
\nthe respondent and his witnesses as, in his opinion, support
\nthe  case of the appellant.  In arriving at our\t conclusions
\nwe  have  also proceeded on the footing that as\t the  courts
\nbelow  did  not consider the evidence  of  the\trespondent’s
\nwitnesses to be reliable,
\n989<\/span>
\nthe principal question of negligence must be decided on\t the
\nevidence of the appellant’s witnesses.\tThe trial Judge took
\none  view  of that evidence and the Judges’  who  heard\t the
\nappeal\ttook  another  view.   There  being  no\t  concurrent
\nfindings,  we allowed learned counsel for the  appellant  to
\nplace  the  entire  evidence of\t the  appellant’s  witnesses
\nbefore\tus in support of his contentions.  The\tother  point
\nrelates\t to the assessors.  It has not been disputed  before
\nus that the function of nautical assessors is to advise\t the
\ncourt upon nautical manners and as Scott, L. J., said in The
\nClan Lamont (1):\n<\/p>\n
“………… their advice is expert evidence, admissible in
\nAdmiralty Courts, on all issues of fact about seamanship.”
\nThe  decision of the case, however, rests entirely with\t the
\ncourt  and even in purely nautical matters the court is\t not
\nbound to follow the advice of assessors, but on questions of
\nnautical science and skill great attention must obviously be
\npaid to the opinion of the assessors since they are the only
\nsource of information on these points and some reason should
\nbe  given for disregarding them.  In the Australia (2)\tLord
\nDunedin\t deprecated putting to assessors a question that  is
\ntantamount  to asking them whether they would find  for\t the
\nplaintiff or the defendant and repudiated the idea that\t the
\nviews  of the assessors in an appeal court are\tentitled  to
\nmore  respect than those of assessors below.  The  assessors
\nin an appeal court are not substituted for those  previously
\nconsulted;  they are additional to them; and if one  adviser
\nor  two advisers are to be preferred, it is because  in\t the
\njudgment  of  the  court the advice given  is  such  as,  in
\nitself, is the more acceptable.\t There can be no question of
\nany  appeal from one set of assessors to another.   We\thave
\nfollowed  the same principles with regard to the  advice  of
\nthe assessors given in this case and we shall refer to\tsuch
\nadvice in the course of this judgment when it has a  bearing
\non the questions at issue before us.\n<\/p>\n
The principal point for determination in this case is  which
\nof the two, the Nizam or the Kalawati, was
\n(1)  (1946)  79\t LI.   L. Rep. 521,  524  (Lloyds  List\t Law
\nReports).\n<\/p>\n
(2)  [1927] A. C. 145.\n<\/p>\n
990<\/span><\/p>\n
responsible for the collision; and if both were responsible,
\nwhat  is the extent of the responsibility of each ?   For  a
\ndetermination  of these questions it is necessary  first  to
\nfind what courses the aforesaid two boats were, following at
\nthe  relevant time and what changes of course were  made  by
\nthem.  These facts have to be determined first and in  doing
\nso  we must keep in mind some of the regulations made  under
\nthe,  Merchant Shipping Act, 1894.  It has been admitted  by
\ncounsel\t for both -parties that these Regulations apply, and
\nare  concerned with the Regulations of 1910,  namely,  those
\nmade  by an order in Council dated October 13,\t1910.\tThey
\nembody rules which were to be followed at the relevant\ttime
\nby  all\t vessels  upon\tthe high seas,\tand  in\t all  waters
\nconnected   therewith\tnavigable  by\tsea-going   vessels.
\nArticles 17 to 27 of the 1910 Regulations relate to steering
\nand sailing rules.  Article 17 applies to  sailing  vessels,
\nand  Art.  18 to steam vessels. Article, 18 says  in  effect
\nthat when two steam vessels are meeting end on or Dearly end
\non so as to involve risk of collision, each should alter her
\ncourse\tto starboard so that each may pass on the port\tside
\nof the other.  Article 19 is in these terms:\n<\/p>\n
Art.  19.   “When two steam vessels are crossing,  so  as to
\ninvolve risk of collision, the vessel which has the other on
\nher  own  starboard side shall keep out of the\tway  of\t the
\nother.”\n<\/p>\n
The vessel which has to keep out of the way of the other  is
\ncalled the ” give way ” vessel and the other is called the ”
\nstanding  on”  vessel.\tIn the case before us  there  is  no
\ndispute\t that  the  Nizam was the give way  vessel  and\t the
\nKalawati   the\tstanding  on  vessel. Article  21  has\tsome
\nbearing\t on  the question at the issue before us and  is  in
\nthese terms:\n<\/p>\n
Art.  21.  ” Where by any of these Rules one of two  vessels
\nis  to keep out of the way, the other shall keep her  course
\nand speed.”\n<\/p>\n
Article 23 says :\n<\/p>\n
”  Every  steam vessel which is directed by these  Rules  to
\nkeep out of the way of another vessel shall, on\t approaching
\nher, if necessary, slacken her speed or stop or reverse.”\n<\/p>\n
991<\/span><\/p>\n
Article\t 24 says inter alia that notwithstanding any.  thing
\nin  the Rules, every vessel overtaking another,\t shall\tkeep
\nout of the way of the overtaken vessel.\t Article 25 is\tvery
\nimportant  for\tour  purpose, as  learned  counsel  for\t the
\nappellant  has\tplaced great reliance on it.   This  Article
\nmust, be quoted in extenso.\n<\/p>\n
Art.  25.   ” In narrow channels every steam  vessel  shall,
\nwhen  it is safe and practicable, keep to that side  of\t the
\nfairway\t or mid-channel which lies on the starboard  side-of
\nsuch vessel.”\n<\/p>\n
There has been considerable difficulty in defining a ” narrow
\nchannel\t “,  and in the trial court the\t present  respondent
\ndenied that the swept channel outside the Madras harbour was
\na  narrow channel within the meaning of Art.  25  aforesaid.
\nThe courts below proceeded, however, on the footing that the
\nchannel in question was a narrow channel within the  meaning
\nof  the said Article and we have also proceeded on the\tsame
\nfooting.  Article 27 is also important for our purpose.\t  It
\nsays:\n<\/p>\n
Art.  27.   ”  In obeying and construing  these\t Rules,\t due
\nregard\tshall  be  had\tto all\tdangers\t of  navigation\t and
\ncollision, and to any special circumstances which may render
\na departure from the above Rules necessary in order to avoid
\nimmediate danger.”\n<\/p>\n
Articles  29 and 30 are two residuary Articles.\t Article  29
\ninter  alia says that nothing in the Rules  shall  exonerate
\nany  vessel from the consequences of any neglect to  keep  a
\nproper\tlook out or of the neglect of any  precaution  which
\nmay  be required by the ordinary practice of seamen,  or  by
\nthe special circumstances of the case, and Art. 30 says that
\nnothing in the Rules shall interfere with the operation of a
\nspecial\t rule, duly made by a local authority,\trelative  to
\nthe navigation of any harbour, river or inland waters.
\nWe  proceed  now  to a consideration of\t the  evidence\twith
\nregard\tto  those facts on which the  determination  of\t the
\nquestion  of  negligence depends in this case.\t We  do\t not
\npropose\t to  embark on a very detailed third review  of\t the
\nevidence  given in the case, but shall confine ourselves  to
\nthose  salient points which, in our view, are  determinative
\nof the principal question at
\n902<\/span>
\nissue  between the parties, namely, that of negligence\t,for
\nthe  collision\twhich  took place at about  6-51  p.  m.  on
\nDecember  13, 1940.  We shall for that purpose refer to\t the
\nevidence  of Mason, McLure and Abdul Nabi,  three  witnesses
\nfor  the  appellant.  As to the effect of  the\tevidence  of
\nthese  three  witnesses, the learned Judges  who  heard\t the
\nappeal\tin  the\t Bombay\t High  Court  came  to\t conclusions
\ndifferent  from those of the learned trial Judge and one  of
\nthe  points for our consideration will be if  the  appellate
\nCourt  gave good and convincing reasons for  differing\tfrom
\nthe view of the evidence which the learned trial Judge took.
\nIt  may\t be stated here that the aforesaid  three  witnesses
\nwere examined by Blagden, J., in April, 1945, and  February,
\n1946,  and  that  learned Judge made some notes\t as  to\t the
\nmanner\tin  which the three witnesses gave  their  evidence.
\nOur  attention\thas  been drawn to those  notes\t by  learned
\ncounsel for the appellant.  Blagden, J., however had  ceased
\nto  be a Judge of the Court before the suit was tried.\t The
\nrespondent  and\t his  witnesses were  examined\tin  1950  by
\nCoyajee, J., who tried the suit and gave judgment in  favour
\nof the appellant.\n<\/p>\n
It  appears  from the evidence that at about  4-45  p.m.  on
\nDecember  13,  1940, the Nizam took the pilot on  board\t and
\nproceeded to sea.  At about 5-22 p.m. the pilot was  dropped
\nand she proceeded at full speed under McLure’s orders up the
\nswept  channel, the speed being about 10 1\/2 knots.   McLure
\nhanded\tover to Mason at about 5-55 p.m. and the  Nizam\t was
\nthen  steering\ta course north 86 degree east,\tmaking\tsome
\nallowance  for\tthe leeway to port for the set of  the\ttide
\nfrom north to south.  At about 6 p.m. the third officer\t re-
\nlieved Mason; Mason returned to the bridge at 6-30 p.m.\t and
\ntook  over from the third officer.  Mason said that  be\t had
\nchecked\t the bearings of the Nizam just before he  left\t the
\nbridge\tat 6 p.m. and she was then two cables on the  proper
\nside  of  the  channel.\t Soon after 6-30 p.m.  Mason  saw  a
\nvessel about two points on the starboard bow of the Nizam at
\na distance of about three miles.  Mason’s evidence was\tthat
\nhe thought then that the Nizam was overtaking
\n993<\/span>
\nthat other vessel which must have been the Kalawati.  At  6-
\n38  p.m. Mason altered the course of the Nizam 8  degree  to
\nport,  because\the thought that the Nizam and  the  Kalawati
\nwere  on converging courses.  At 6-43 p.m. the\tlook-out  on
\nthe  Nizam rang the bell twice indicating a vessel viz.\t the
\nKalawati  on  the starboard side.  Mason then said  that  at
\nabout  6-45  p.m.  the Kalawati was about one  mile  on\t the
\nNizam’s starboard bow and was clearly seen to be crossing to
\nstarboard port.\t The Kalawati then made an Aldis lamp signal
\nand  Mason  replied I.M.I. with a torch which  asked  for  a
\nrepetition  of the signal.  Mason then ordered\tbard  astar-
\nboard;\the did this because under certain wartime  orders  a
\nmerchant  vessel  had  to  turn\t away  from  any  ship\tthat
\nsignalled.  At 6-47 p.m. the Kalawati was several points  on
\nthe  port  bow\tof the Nizam and near about  6-48  p.m.\t the
\nKalawati  altered  her\tcourse to  port\t and  indicated\t the
\nalteration by two short blasts.\t Mason replied by one  short
\nblast  indicating that the Nizam was turning  to  starboard.
\nAt  about  6-49 p.m. McLure came on board and he  rang\tfull
\nspeed  astern.\tBy about 6-51 p.m., however,  the  collision
\ntook place.\n<\/p>\n
The  above  gives in brief a summary of\t the  events  which,
\naccording to Mason, led to the collision.  McLure’s evidence
\nwas  that  he returned to the bridge at about 6-48  p.m.  on
\nhearing two short blasts from the Kalawati, and on coming to
\nthe  bridge  he saw that the Kalawati was turning  to  port.
\nMcLure\tat once ordered full speed astern and  caused  three
\nshort blasts to be given; but the collision occurred  within
\nabout two minutes.  Abdul Nabi was the Quarter Master of the
\nNizam.\t His evidence was to the effect that Mason  came  on
\nthe bridge at about 6-30 p.m. and at that time the Nizam was
\nsteering a course north 86 degree east.\t At about 6-40\tp.m.
\n(Abdul Nabi said that it was ten minutes after Mason came on
\nthe  bridge) be received an order to steer 8 degree to\tport
\nand  he did so.\t Some five or ten minutes after he  received
\nanother\t order to go to starboard, that is, to\tthe  Nizam’s
\nformer course.\tThen came the last order to hard  astarboard
\nand this was at about the time when Abdul Nabi board two
\n125<\/span>
\n994<\/span>
\nblasts\tfrom  the Kalawati.  It may be\there  remarked\tthat
\nAbdul Nabi’s evidence differs essentially from that of Mason
\nas to the time when the Nizam went hard astarboard and\talso
\nas to the sequence of events which led to the alteration  of
\nthe  Nizam’s  course from north 86 degree east to  8  degree
\nport first, then to her former course and then again to hard
\nastarboard.  We shall later return to these discrepancies.
\nThe  three circumstances, however, which stand out from\t the
\nevidence  of Mason are-(a) that the Nizam was on the  proper
\nside  of the channel at about 6-45 p.m.; (b) she  turned  to
\nhard  astarboard at about 6-45 p.m. in order to present\t her
\nstern  to  the Kalawati in compliance with  certain  wartime
\norders;\t and (c) the Kalawati turned to port at\t about\t6-48
\np.m.  after she had seen the Nizam turn to  hard  astarboard
\nsome three minutes earlier.  If Mason’s evidence is  correct
\nwith  regard  to the aforesaid three circumstances  and\t the
\nKalawati turned to port after she had seen the Nizam turn to
\nhard  astarboard and if at the time the Kalawati was on\t the
\nwrong  side  of the channel, then there can be\tvery  little
\ndoubt  as  to  where the responsibility\t for  the  collision
\nshould\tlie.   Coyajee, J., accepted Mason’s  evidence\twith
\nregard\tto the aforesaid three circumstances and  held\tthat
\nthe  responsibility for the collision lay on  the  Kalawati,
\nbecause she turned to port at the time she did after  having
\nseen  the Nizam turn to hard astarboard some  three  minutes
\nearlier.   The learned Judges who heard the appeal  did\t not
\naccept as correct Mason’s evidence that the Nizam turned  to
\nhard  astarboard at about 6-45 p.m. in order to present\t her
\nstern  to the Kalawati ; on the contrary, from the  evidence
\nof  McLure and Abdul Nabi read with the evidence  of  Mason,
\nthey came to the conclusion that it was impossible to accept
\nthe appellant’s case that the Nizam turned starboard at 6-45
\np.m. and it was more likely that she turned to starboard  at
\nabout  6-48  p.m.  after she had heard\tthe  signal  of\t the
\nKalawati that she was turning to port.\tIn other words,\t the
\nlearned\t Judges found that the Kalawati had turned  to\tport
\nfirst in order to avoid an imminent risk of collision and it
\nwas then that the Nizam
\n995<\/span>
\naltered\t her  course  to starboard in order to\tget  to\t the
\nproper side of the channel.\n<\/p>\n
The  question  before  us is which of  these  two  views  is
\ncorrect.  On a careful consideration of the evidence and the
\nsubmissions made thereon by learned counsel for the parties,
\nwe  are of the opinion that the view of the  learned  Judges
\nwho heard the appeal is the correct view.  According to\t the
\nevidence  of  Mason, he checked the bearings  of  the  Nizam
\nbefore\the  left the bridge at 6 p.m. and  on  checking\t the
\nbearings from the Madras Light House and a conspicuous white
\nhouse  on the north side of the harbour, he found  that\t the
\nNizam was two cables on the proper side of the channel.\t  It
\nappears\t that  there  should have been a dan  buoy  in\tmid-
\nchannel to mark the mid-line.  Mason said that he looked for
\nit  , but did not find it.  There was a fairway buoy at\t the
\nend  of the channel, that is, near the mouth of the  channel
\nfrom  the  open sea.  It is not disputed that  the  Kalawati
\nentered the channel south of the fairway buoy and was at the
\ntime  of the entry into the channel on the wrong side.\t The
\nquestion, however, is what was the position of the two boats
\nat  the relevant time, namely, at about 6-45 p.m.  when\t the
\ndistance  between  the\ttwo boats was about a  mile  or\t so.
\nMason’s\t evidence itself shows that at about 6-45 p.m.\tboth
\nthe  boats were near about the mid-line of the channel.\t  It
\nis  to\tbe remembered that though the Nizam  was  about\t two
\ncables\ton the proper side of the channel at about  6  p.m.,
\nshe  had  altered her course 80 to port, even  according  to
\nMason,\tat about 6-38 p.m. Abdul Nabi’s\t evidence  indicated
\nthat the Nizam had altered her course to port by about\t10′.
\nEven  allowing\tfor the set of the tide, if  the  Nizam\t had
\ncontinued  in  her  port course in  order  to  overtake\t the
\nKalawati  (as Mason was then under the impression  that\t the
\nNizam was overtaking the Kalawati), she would cross the mid-
\nline  and  go  into the wrong side of the  channel.   It  is
\nworthy\tof note that in the plaint there was no\t mention  of
\nthe  circumstance that the Nizam altered her course to\tport
\nin  order to overtake the Kalawati, on the wrong  impression
\nthat – both the boats were going in the same direction.\t But
\nbe that
\n996<\/span>
\nas  it may, it is quite clear that the Nizam did alter\t,her
\ncourse\tto port at about 6-38 p.m, and if she  continued  in
\nthat course till about 6-48 p.m., she would be near the mid-
\nline of the channel or just across it at the relevant  time.
\nMason admitted this and said in cross-examination: ” At\t 18-
\n45 1 was just about in the mid-channel and the Kalawati\t was
\nthen steering a crossing course “. Mason prepared a chart to
\nshow  the position of the two boats and this was  marked  as
\nExt.  A. This chart also showed that at about 6-45 p.m.\t the
\nNizam was on the mid-line and if the Nizam had continued her
\nport course she would be on the wrong side of the channel at
\nabout  6-48  p.m. Even though the Kalawati had\tentered\t the
\nchannel south of the fairway buoy, which was her wrong side,
\nshe  was steering a course north 80 degree west,  making  an
\nallowance for a southerly drift of about 1 or 1.5 knots.  By
\nsteering  that\tcourse the Kalawati would also be  near\t the
\nmid-line of the channel at about, 6-45 p.m. She would be  on
\nher right side of the channel at 6-46 p.m. This is also made
\nclear  from  the  chart, Ext.  A. Learned  counsel  for\t the
\nappellant repudiated the correctness of the chart, Ext.\t  A,
\nbut it is a chart prepared by his own witness and so far  as
\nthe position of the Nizam was concerned, the chart must have
\nbeen  prepared\ton the position and course of the  Nizam  as
\ngiven  by  the appellant’s own witnesses.  We  see  no\tgood
\nreasons\t for discarding the chart, Ext.\t A. At\tour  request
\nthe assessors also prepared a chart showing the position  of
\nthe two boats on the following\tassumptions:.(a)     Nizam’s
\nspeed about 10.2 knots,(b)    Kalawati’s   speed  about\t  11
\nknots, (c) the set of the tide about.71 knots and (d) length
\nof the swept channel about 18 miles.  This chart also showed
\nthat  at about 6-45 p.m. the Nizam was on the  mid-line\t and
\nthe Kalawati had crossed the mid-line into her right side of
\nthe channel.  If the set of the tide was two knots or  three
\nknots,\tas some of the witnesses said, then both  the  Nizam
\nand the Kalawati would be outside the swept channel, and  if
\nthe Kalawati was sighted two points on the starboard bow  of
\nthe  Nizam she would be further south of the southern  limit
\nof the
\n997<\/span>
\nswept  channel.\t On a consideration of the evidence  in\t the
\ncase it appears to us that at the relevant time, namely,  6-
\n45 p.m., both the boats were near about the mid-line, may be
\na little on the right or wrong side of it, and the  distance
\nbetween the two boats was about one mile at that time.\t The
\nvery elaborate argument of learned counsel for the appellant
\nbased  on  Art. 25, which requires every steam vessel  in  a
\nnarrow channel to keep to the starboard side of the channel,
\nloses  much  of\t its  force when we  remember  that  at\t the
\nrelevant  time the two boats were near the mid-line  of\t the
\nchannel\t and,  according  to Mason, the\t Kalawati  was\tthen
\ncrossing to starboard port.  One of the assessors, Commodore
\nChatterjee,  gave  as his opinion that if the  Kalawati\t was
\ncoming\tfrom the south, it would be easier for her to  enter
\nthe  channel  south  of the fairway buoy and  he  would\t not
\nconsider it as a breach of the rules of the road unless\t the
\nKalawati  was  embarrassing another ship Coming out  of\t the
\nchannel.  Capt.\t Cleeve said that as a merchant ship captain
\nhe  would never do it, but as a naval ship captain he  might
\ndo  it\tand although it might be against the spirit  of\t the
\nregulations, it would not be a breach of them.\tIt is to  be
\nremembered  again that the Kalawati entered the\t channel  at
\nabout  6-25 p. m. and at the time the Nizam was about  seven
\nmiles  away.  We do not, therefore, think  the\tcircumstance
\nthat  the  Kalawati entered the swept channel south  of\t the
\nfairway\t buoy  decisive on the issue of negligence.   As  we
\nhave remarked earlier the decisive question is what was\t the
\nposition  of the two boats at the relevant time, namely,  at
\nabout  6-45 p.m.? The evidence leaves no room for any  doubt
\nthat at the relevant time the two boats were near about\t the
\nmid-line of the channel.\n<\/p>\n
The  question is what happened thereafter ? Mason said\tthat
\nfrom 6-38 to 6-41 p.m. he assumed that he was overtaking the
\nKalawati;  from\t 6-41 to 6-45 p.m. he was in two  minds\t and
\nwhen  at  6-45 p.m. the Kalawati signalled the\tNizam,\tthen
\nMason came to know that the Kalawati was steering a crossing
\ncourse.\t Mason said that he then changed to hard starboard.\n<\/p>\n
998<\/span><\/p>\n
This part of the evidence of Mason is flatly contradicted by
\nAbdul  Nabi  and  is  -further\tnot  supported\tby   several
\ncircumstances to which we shall presently refer.  It is true
\nthat none of the witnesses gave the time with the  precision
\nof  a watch and what they said about time was more  or\tless
\napproximate.   Abdul Nabi was, however , very definite\tthat
\nMason  first  ordered the Nizam to steer 80  to\t port;\tthen
\nthere  was  a second order to go to the\t former\t course\t and
\nlastly\tthere was an order to go hard astarboard.  If  Abdul
\nNabi  is telling the truth, then even making  due  allowance
\nfor the approximate nature of the times which he  mentioned,
\nthe  evidence  of Mason that he changed the  course  of\t the
\nNizam  to  hard\t astarboard at about  6-45  p.m.  cannot  be
\ncorrect.  Then, take the following circumstances one by one.
\nIf  Mason  had\tchanged\t the course of\tthe  Nizam  to\thard
\nastarboard,  why  did he not give a signal to  indicate\t the
\nchange\tof  course  ?  The evidence is very  clear  on\tthis
\npoint.\t It was the Kalawati which gave two short blasts  at
\nabout  6-48 p.m. to indicate that she was changing to  port.
\nThereafter  the Nizam replied by one short blast  indicating
\nthat  she  was\tchanging to starboard.\t If  the  Nizam\t had
\nchanged\t to  starboard\tthree minutes earlier,\twhy  was  no
\nsignal\tgiven  ? It is necessary to refer here\tto  Art.  28
\nwhich  says that when vessels are in sight of one another  a
\nsteam  vessel under way shall indicate the course  taken  by
\nher.  Mason made an attempt to say in his evidence that Art.
\n28  was not adhered to in wartime; but then he had to  admit
\nthat only a few minutes after, the Nizam did give one  short
\nblast in reply to the two short blasts of the Kalawati.\t  It
\nis obvious that Art. 28 was not abrogated during wartime and
\nit was the duty of the Nizam to indicate by one short  blast
\nthat  she was changing to starboard, if she actually did  so
\nat  6-45 p.m. We are, however, of the opinion, in  agreement
\nwith  the  learned Judges of the appellate Bench,  that\t the
\nNizam did not change her course to starboard at 6-45 p.m. as
\nMason  wants  us  to believe; on  the  contrary,  the  Nizam
\ncontinued  her\tport course till about 6-48 p.\tm.  and\t she
\nchanged to starboard only after she had heard the two blasts
\nfrom
\n999<\/span>
\nthe  Kalawati.\t This,\twe think, is  clear  from  two\tvery
\nimportant  circumstances.  McLure admitted in  his  evidence
\nthat  at  the  speed and  under\t the  conditions  prevailing
\nimmediately  before the collision, it would take  the  Nizam
\nabout  2 1\/2 minutes to swing 90′ with her helm\t hard  over.
\nIf  actually  Mason had altered the course of the  Nizam  to
\nhard astarboard at 6-45 p.m., then she would be heading back
\ntowards\t Madras at the time’ when the collision took  place.
\nEven  McLure  said:  ” If Mason’s statement  is\t correct,  I
\nshould\thave expected my ship to be heading at right  angles
\nto  her former course.” That was not, however, the  position
\nof  the Nizam when the collision took place.  The  assessors
\nwere  agreed  that  once  the wheel  had  been\tplaced\thard
\nstarboard,  it was not possible to put the wheel further  to
\nstarboard.   If actually more than five minutes had  passed,
\nafter  the Nizam had been put hard starboard, she  would  be
\nswinging starboard all the time and she would take a turn of
\nabout 180′ within five minutes.\t In any event, by about 6-48
\np.m.  she would be at right angles to her former course,  as
\nstated\tby McLure.  We think that McLure’s evidence on\tthis
\npoint  destroys\t the case of Mason that he had\taltered\t the
\nNizam’s\t course. to hard astarboard at 6-45 p.m. Then  there
\nis  the second important circumstance that  McLure  admitted
\nthat he knew nothing about any helm action of the Nizam from
\n5-55 p.m. to 6-48 p.m. McLure said :\n<\/p>\n
” First I heard at 6-43 p.m. two bells indicating an  object
\non the starboard bow.  I was still in my cabin at the  time.
\nI  was reading Admiralty messages.  I heard two blasts\tfrom
\nthe  other  ship  at 6-48 p. m. I have\tno  recollection  of
\nfeeling\t any  helm  action  of\tmy  ship  before  that.\t   I
\nimmediately went up on the bridge.  The Nizam did not  sound
\none  blast till I had reached the top of the  ladder.\tThat
\nwould normally suggest that the Kalawati had turned to\tport
\nfirst “. McLure further said that when a ship alters  course
\nand   signals,\tthe  alteration\t and  the  signal  must\t  be
\nsimultaneous.\tIt  would be surprising indeed\tthat  McLure
\nwould  not  notice  the helm action  to\t hard  starboard  if
\nactually the Nizam had been put hard
\n1000<\/span>
\nstarboard  at 6-45 p.m. The assessors were asked about\tthis
\nmatter\tand Commodore Chatterjee said that if the  helm\t was
\nput  hard  over,  be would feel it even if  he\twas  asleep.
\nCapt.  Cleeve said that the master of a fast ship would feel
\nthe  helm  action  sooner than the master of  a\t slow  ship,
\nprobably twenty to thirty seconds sooner.  McLure,  however,
\nfelt no helm action at all up till 6-48 p.m. This also shows
\nthat  the story of Mason that he changed the course  of\t the
\nNizam to hard astarboard at 6-45 p.m. was not correct.
\nThe  reason which Mason gave for altering the course of\t the
\nNizam hard a-starboard at 6-45 p. m. was an alleged war-time
\norder that a merchant vessel when challenged must turn\taway
\nfrom  the  challenging\tvessel.\t This  reason  is  far\tfrom
\nconvincing.    No  such\t war-time  order  was  produced\t  in
\nevidence.   In\tEx. C (Surveyor’s report dated\tJanuary\t 27,
\n1941) the reason for the starboard action was stated thus:-
\n”  At  6-45 p. m. the other vessel appeard to be  about\t one
\npoint on the starboard bow and about one mile distant and to
\nbe  beading to cross the bows of s. s. ” Nizam “.  The\thelm
\nput  bard  astarboard in order to pass astern of  the  other
\nvessel.”\n<\/p>\n
There  was no reference to any wartime order  or  regulation
\nthen.  McLure said in his evidence:\n<\/p>\n
” The rule about turning away from a challenging vessel\t was
\na  secret  matter and I did not think it fit to\t mention  it
\neven  to  my Managing Agents.  Mason told me  he  originally
\nsteered to starboard in order to pass port to port.”
\nEven  Mason was far from being firm as to the  reason  which
\nled  him to turn hard astarboard at 6-45 p. m.\tHaving\tsaid
\nthat  the  only\t reason was the alleged\t wartime  order,  he
\nchanged\t and said that he turned hard starboard\t because  he
\nwas dazzled with the Aldis lamp signal and the Kalawati\t was
\ntoo close.  He admitted that he knew then that the  Kalawati
\nwas a patrol vessel which was not hostile; yet he wanted  to
\nturn astern, as the Nizam had a gun mounted astern!   Again,
\nhe changed and gave a third reason for going hard starboard,
\nnamely, he wanted to get out of the way of the Kalawati.  In
\nthis state of the evidence, it is
\n1001<\/span>
\nimpossible  to place implicit reliance on  Mason’s  evidence
\nthat  he turned hard starboard at 6-45 p. m. for the  reason
\nthat  a\t so-called  war-time order required him\t to  do\t so.
\nLearned counsel for the appellant drew our attention to\t the
\nrespondent’s evidence on this point.  The respondent said:
\n”  When\t a ship is challenged she gives her name  and  turns
\nround but not in the swept channel or in the harbour.
\nI  do  not agree that in the swept channel when a  ship\t was
\nchallenged to give her name she would have to turn round.  I
\ndid  state  before the Marine Enquiry that when\t a  merchant
\nship  is  challenged  she would turn  about  necessarily  by
\nstarboard  movement and give her name and the turning  about
\nwould  be action preparatory to running away and that  owing
\nto  war these regulations were in force.  I gay that  I\t was
\ntrapped into giving answers by vague questions.”
\nWe  agree  that\t the  respondent’s  evidence  is  not\tvery
\ningenuous;  but it cannot be accepted as an admission  which
\nrelieved the appellant from proving the existence of a\twar-
\ntime order or regulation of the kind and nature suggested by
\nMason  in his evidence.\t Mason’s evidence taken as  a  whole
\nseems to indicate that the order to turn hard starboard came
\nmuch later than 6-45 p. m. and the reason for the order\t was
\nto get back to the right side of the channel and to get\t out
\nof the way of the Kalawati, if possible.  Unfortunately, the
\naction was taken too late and after the Kalawati had already
\nturned to port.\t On the evidence, we are unable to hold that
\nthe  Nizam took starboard action before the Kalawati  turned
\nto port.\n<\/p>\n
The question now arises-why did the Kalawati turn to port at
\nabout  6-48 p. m. and in doing so, did she commit an act  of
\nnegligence  or\tan act which in any way contributed  to\t the
\ncollision?   On behalf of the appellant, it has been  argued
\nthat  even  if we find on the facts that the  Kalawati\ttook
\nport  action first, this action was wholly  unjustified\t and
\nwrong and, in any event, the Kalawati could and should\thave
\ngone to starboard to avoid the collision; therefore, she was
\nwholly to blame.  Alternatively, it has been argued
\n1002<\/span>
\nthat  she  was\tmostly\tto blame and  the  blame  should  be
\napportioned.   Ike shall deal with the alternative  argument
\nat a later stage.\n<\/p>\n
The  question is-why did the Kalawati turn to port at  about
\n6-48 p. m. ? We think that Mason’s own evidence furnishes an
\nanswer\tto  the question.  We know from the  Kalawati’s\t log
\nbook that she entered the swept channel at about 6-25 p.  m.
\nsouth of the fairway buoy and she was then steering a course
\nof  north 80′ west; by about 6-45 p. m. she was on the\tmid-
\nline  of the channel when she sighted the Nizam on the\tport
\nbow.   The  Nizam had already altered her  course  to  port.
\nMason summarised the position at 6-45 p. m. thus: ” At 18-45
\nshe  (meaning  the  Kalawati)  was  about  one\tmile  on  my
\nstarboard  bow\tand was crossing to starboard  port.”  Capt.
\nCleeve\t thus  explained  the  meaning\tof   the   aforesaid
\nstatement:  “That  means that the distance between  the\t two
\nboats was one mile, and she (Kalawati) was a mile, off to my
\n(Nizam’s)  starboard  bow  and\tshe  was  crossing  from  my
\nstarboard  ‘to\tmy  port.  ”  Mason  further  clarified\t the
\nposition  by  saying that the two boats were  then  steering
\ncrossing courses and it was not correct to say that if\tboth
\nships  had kept their course and speed as it was at  6-43  p
\nm.,  they would have passed port to port.  Mason  also\tsaid
\nthat  ”\t the two boats were on converging courses  at  18-45
\nhours  “. ,Obviously, there would have been a collision,  if
\nno  avoiding action was taken. by either boat.\tThat is\t why
\nMason was at pains to point out in his evidence that he took
\nstarboard action at 6-45 p. m. to get out of the way of\t the
\nKalawati  and if both. the ships, had kept their courses  as
\nthey were immediately after Mason had starboarded at 6-45 p.
\nm.,  they would have passed port to port with about  half  a
\nmile  to  spare.   We  have  found,  however,  that  Mason’s
\nstatement  that\t he had starboarded at 6-45 p.\tm.  was\t not
\ncorrect.  The position, therefore, was that. the two  boats-
\nwere  on crossing courses in a, narrow channel and when\t the
\nKalawati  signalled with the Aldis lamp, she found that\t the
\nNizam  was  still steering to port.  The Aldis\tlamp  has  a
\nsmall telescope attached to it and from a demonstration made
\nin Court, it became obvious that
\n1003<\/span>
\nthe  respondent\t was  in  a  position  to  see\tthrough\t the
\ntelescope what course the Nizam was taking.  At? about\t6-48
\np. m. the distance between the two boats was less than\thalf
\na  mile,  and unless the Kalawati took\tavoiding  action,  a
\ncollision  was imminent.  Therefore, the Kalawati took\tport
\naction and indicated her direction by the necessary  signal.
\nThe  justification for the port action of the  Kalawati\t was
\nthe  continuance  of the Nizam on a  port  course–a  course
\nwhich  was not only taking the Nizam over the mid-line\tinto
\nthe  wrong  side  of the channel but was  also\tmaking\t her
\nconverge  on the course of the Kalawati.  The  Kalawati\t was
\nthe standing on vessel, and it was the duty of the Nizam  to
\nget  out  of  the way.\tInstead of  doing  that,  the  Nizam
\npersisted  in her port course and changed to hard  starboard
\nafter  the  Kalawati had justifiably taken  port  action  to
\navoid  an  imminent risk of collision.\tIt has\tbeen  argued
\nbefore\tus  that the Kalawati should have  anticipated\tthat
\nsooner\tor later the Nizam would correct her mistake and  go
\nto the starboard side of the channel and, therefore, as\t the
\nstanding on vessel, the Kalawati should have kept her course
\nand  speed as required by Art. 21, and if she had  done\t so,
\nthere would have been no collision.  This argument fails  to
\ntake note of the perilous position in which the Kalawati was
\nplaced by the continuance of the Nizam in a port course till
\nabout  6-48  p. m. and furthermore ignores Arts. 27  and  29
\nunder which when a vessel finds herself so close to  another
\nvessel\tthat a collision cannot be avoided by the action  of
\nthe giving-way vessel alone, she must also take such  action
\nas  will  best aid to avert collision.\t The  Kalawati\twas,
\ntherefore,  justified, in taking port action at 6-48  p.  m.
\nwhen  a collision seemed imminent and perhaps the  collision
\nwould  have  been  averted if the Nizam had  not  taken\t the
\nunfortunate  action of hard starboarding after the  Kalawati
\nhad taken port action.\tMcLure realised the position as soon
\nas  he\tcame on the bridge at 6-49 p. m.  and  ordered\tfull
\nspeed  astern.\t Unfortunately, it was too  late  then.\t  If
\nMason  had  followed  the  provisions of  Art.\t23  and\t had
\nslackened the speed of or reversed the Nizam between 6-45 p.
\nm. and 6-48 p. m. the collision might have been averted.\n<\/p>\n
1004<\/span><\/p>\n
Instead,  however,  he\tordered the Nizam  to  be  put\thard
\nstarboard  at about 6-48 p. m. This, in our opinion, was  an
\nact  of negligence, which was primarily responsible for\t the
\ncollision.  The findings of the learned trial Judge were, in
\nour  view,  vitiated by reason of the circumstance  that  be
\naccepted  as  correct Mason’s evidence that he had  put\t the
\nNizam  bard  astarboard\t at  6-45 p.  m.  in  the  teeth  of
\ncircumstances  which  showed  clearly  enough  that  Mason’s
\nevidence  about\t starboarding  at 6-45 p. m.  could  not  be
\ncorrect.  These circumstances were-(I) if Mason had put\t the
\nNizam  hard starboard at 6-45 p. m., the Nizam would be\t 90′
\nto her former course by 6-48 p. m. and by 6-49 or 6-50 p. m.
\nshe would be turning towards Madras; (2) McLure did not feel
\nany  such helm action at 6-45 p. m.; (3) the Nizam  gave  no
\nsignal\tof starboarding at 6-45 p. m. but gave\tsuch  signal
\nafter the Kalawati had turned to port soon after 6-48 p. m.;
\nand (4) the reason which Mason gave for starboarding at 6-45
\nP.  m. did not stand the test of scrutiny.  In the court  of
\nappeal\tbelow,\tone of the assessors, Commander\t Kale,\tsaid
\ndefinitely that the only war-time restrictions in 1940\twere
\nwith  regard to lights and wireless communication.  He\tsaid
\nthat  signals bad to be given by ships when they decided  to
\nchange\ttheir  course, and the more so when  ships  were  in
\nrestricted waters and there was another vessel coming ahead.
\nWe  think  that\t the learned Judges  who  heard\t the  appeal
\nrightly\t emphasised  the  importance  of  the  circumstances
\nstated\tabove,\tand having given them  due  weight,  rightly
\nreversed the findings of the learned trial Judge.
\nTo summarise our conclusions now: (1) we accept the position
\nthat  the Kalawati entered the channel at 6-25 p. m. on\t the
\nwrong side and the Nizam was two cables on the right side at
\nabout  6  p.  m.;  but by 6-45 p. m.,  the  two\t boats\twere
\nopposite each other near about the mid-line of the  channel,
\nthe distance between the two being then a little more than a
\nmile;  (2) the Nizam did not take any hard starboard  action
\nat  6-45  p.  m.- rather she continued to steer\t to  a\tport
\ncourse till about 6-48 p. m. and probably went over the mid-
\nline  into  the\t wrong side of the channel ;  (3)  when\t the
\nKalawati signalled with the Aldis lamp, she
\n1005<\/span>
\nnoticed\t that  the Nizam was steering to port and was  on  a
\ncourse\tconverging on the Kalawati and at about 6-48  p.  m.
\nthe  Kalawati took avoiding action by turning hard  to\tport
\nand  gave a signal to that effect; (4) the Nizam  then\ttook
\nstarboard  action  to  get back to the\tright  side  of\t the
\nchannel and get out of the way of the Kalawati; and (5) when
\nMcLure\tcame  on the bridge at about 6-49 p. m.\t he  ordered
\nfull  speed  astern -but it was too late and  the  collision
\ntook place at about 6-51 or 6-52 p. m.\n<\/p>\n
On the aforesaid findings there is little difficulty left in
\nadjudging  where the responsibility lies for the  collision.
\nAs  we have said earlier., the responsibility lies with\t the
\nNizam.\n<\/p>\n
It  is necessary to notice now, very briefly, two  decisions
\non which learned counsel for the appellant has relied: ” The
\nTioga ” (1) and the ” Empire Brent ” (2).  In the Tioga\t the
\nquestion for consideration was the liability for damages  in
\nrespect\t of a collision which occurred in the swept  channel
\nof the N. E. Coast of England between the Pundit, a ship  in
\nthe port column of a south-bound convoy of eight ships,\t and
\nthe  Tioga, an independent north-bound ship.   The  decision
\nproceeded on the footing that south bound ships were under a
\nstrict\tduty to keep within the western half of the  channel
\nand  north-bound within the eastern half, thus passing\teach
\nother  port to port.  Down the centre of the  channel  there
\nwas  a\tline  of flashing buoys four or\t five  miles  apart.
\nThere was a general prohibition of navigation lights,  which
\nmade  the strict observance of the; rule of the road in\t the
\nswept  channel\texceptionally  imperative.   The  night\t was
\novercast and dark, and there was drizzling rain\t diminishing
\nvisibility.   In those circumstances, it was found that\t the
\nPundit,\t instead of keeping to her right  water,  trespassed
\ninto  the Tioga’s water, and furthermore when she first\t saw
\nthe  Tioga’s  red at a quarter of a mile away,\ther  instant
\nduty  was to starboard out of the Tioga’s way so as to\tpass
\nport to port.  This the Pundit failed to do.  Therefore, the
\nPundit was held responsible on two grounds, which Scott,  L.
\nJ., explained in the following words:-\n<\/p>\n
(1)  (1945) 78 Ll.  L. Rep. 1 (Lloyd’s List Law Reports).
\n(2)  (1948) 81 Ll.  L. Rep. 306 (Lloyd’s List Law Reports).\n<\/p>\n
1006<\/span><\/p>\n
”  The\ttwo ships were either meeting or  crossing;  and  in
\neither case it was the Pundit’s duty to pass the Tioga\tport
\nto  port.  If they were crossing ships it was also her\tduty
\nto keep out of the way of the Tioga and go under her  stern;
\nif  meeting  ships,  simply  to\t starboard  her\t helm.\t  In
\naddition,  there was the special duty of the Pundit in\tthat
\nchannel to regain her right water.  She had been  blundering
\nout  of\t it  and  endangering north  bound  traffic;  and  I
\nentirely  agree with the learned Judge’s view that for\tthat
\nreason\talone she was seriously to blame; and that  position
\nof  itself  would  entitle the Tioga to\t expect\t her  to  be
\nactually  on a starboard helm, correcting her error, at\t the
\nmoment she put her lights on “.\n<\/p>\n
We  do\tnot think that the decision in the Tioga is  of\t any
\ngreat assistance to the appellant.  On our findings, it\t was
\nthe  duty  of  the  Nizam to keep out  of  the\tway  of\t the
\nKalawati; and at 6-48 p.m. the Nizam was in all probability.
\nin her wrong water and the Kalawati in her right water –  at
\nany  rate – both were near the mid-line of the channel,\t and
\nin  these circumstances, the Nizam’s action in\tstarboarding
\nafter  she  had seen the Kalawati, turn to  port  cannot  be
\njustified either on the principles laid down in the decision
\naforesaid or on the provisions of the rule of the road in  a
\nnarrow channel.\n<\/p>\n
In  the Empire Brent the collision took place in  the  river
\nMersey\tbetween\t the steamship Starmont\t and  the  steamship
\nEmpire Brent.  It was found that so far as the Starmont\t was
\nconcerned,  she deliberately set a course which\t meant\tthat
\nfor  most  of  the  way up the\triver  she  was\t necessarily
\nproceeding  on\tthe wrong side of the river  for  her.\t The
\nEmpire\tBrent had just left the Princes Landing\t Stage\twhen
\nshe  had to cope with the situation created by the  approach
\nof  the Starmont.  In these circumstances it was  held\tthat
\nthe  Starmont was wholly in the wrong for coming up  on\t the
\neastern\t side of the river and for breaking in that way\t the
\nnarrow channel rule which prevails in the Mersey.   Willmer,
\nJ., said:-\n<\/p>\n
”  I find it difficult to find words sufficiently strong  to
\ncondemn the action of a man who persists in coming up on the
\nwrong side of the river–especially as this
\n1007<\/span>
\naction\tof the Starmont was quite deliberate and was  merely
\nfor the purpose of her own convenience.”\n<\/p>\n
Dealing\t with  the alternative case  that  the\tstarboarding
\naction\tof  the\t Empire Brent was the  whole  cause  of\t the
\ncollision even if the Starmont was wrong in coming up on the
\neastern side of the river, the learned Judge observed:
\n”  That\t alternative  way of putting  the  case\t has  become
\nacademic, having regard to my finding that the vessels\twere
\ngreen  to  green at any rate up to the time when  they\twere
\nabout three – quarters of a mile apart.\t But, lest it should
\nbe  thought that I agree with it, I should like to take\t the
\nopportunity  of\t saying\t that I regard\tthat  contention  as
\nwholly wrong.  As I understand the principles which apply in
\nnarrow channels, it has been laid down for many, many  years
\nthat, although the crossing rule does from time to time have
\nto  be\tapplied in narrow channels (when,  for\tinstance,  a
\nvessel which is crossing the channel has to act in  relation
\nto  a  vessel which is proceeding up or down  the  channel),
\nnevertheless,  when  vessels  are  approaching\teach  other,
\nnavigating respectively up and down the channel, it is\tArt.
\n25  of -the Collision Regulations which applies and  applies
\nexclusively.   There  is  no room in such  a  situation\t for
\napplying  the provisions of the crossing rule. at  the\tsame
\ntime  as the provisions of the narrow channel rule,  because
\nthe  requirements under the rules are different.  I have  no
\nhesitation in saying that as between a vessel coming up\t and
\na vessel going down, approaching each other in that way in a
\nnarrow channel like the Mersey, the narrow channel rule, and
\nthe  narrow channel rule only, is the rule which has  to  be
\napplied.   However,  that is a digression,  because,  having
\nregard to my findings of fact, the point is academic.”
\nLearned counsel for the appellant has placed strong reliance
\non the aforesaid observations and has contended that in\t the
\npresent case also the provisions of the narrow channel\trule
\nshould apply and not those of the crossing rule.  We do\t not
\nsee  how  a strict or exclusive application  of\t the  narrow
\nchannel\t rule will help the appellant in the  present  case.
\nWe have found that the Nizam was in her right water at about
\n6 p.m.
\n1008<\/span>
\nbut  she had altered her course to port later and  at  about
\n6-45  p.m. she was near the mid-line and at 6-48  p.m.\twhen
\nshe starboarded in answer to the Kalawati’s port action, she
\nwas  in\t all  probability in the  wrong\t water.\t  The  Nizam
\ncannot, therefore, say that if the narrow channel rule\tonly
\napplied,  she  is bound to succeed.  We do  not,  therefore,
\nthink  that  the ratio of the decision in the  Empire  Brent
\nhelps to establish the case of the appellant.
\nIn view of our findings, we consider it unnecessary to\tdeal
\nwith  the  alternative\tclaim  of the  appellant  as  to  an
\napportionment-\tof the blame for the collision in  question.
\nWe  do not think that the Kalawati was to blame\t for  taking
\nport  action  when she did, and we have already\t stated\t our
\nreasons therefor.  There is a further difficulty in the\t way
\nof  the\t appellant.   It  is  true  that  the  question\t  of
\ncontributory  negligence  was one of the issues\t before\t the
\nlearned\t trial Judge, but in the view which he took  of\t the
\nevidence,  he considered it unnecessary to decide  it.\t The
\nappeal was decided on the footing that the Kalawati was\t not
\nguilty\tof  negligence\tand the\t entire\t liability  for\t the
\ncollision was that of the Nizam.  The appellant has no doubt
\ncontested the correctness of the findings arrived at by\t the
\nlearned\t Judges of the appellate bench; but neither  in\t the
\nmemorandum  of\tappeal\tnor in the  statement  of  the\tcase
\npresented  to  this  Court  did\t the  appellant\t raise\t the
\nalternative  claim  which  it has now  raised.\t During\t the
\ncourse\tof  the\t hearing  of the appeal\t in  this  Court,  a
\npetition  was  made for adding a fresh ground of  appeal  in
\norder to raise the alternative claim of an apportionment  of
\nliability for the collision under the rules for the division
\nof loss prescribed under the Maritime Conventions Act, 1911.
\nWe do not think that the prayer for an alternative claim can
\nbe  allowed at this stage, because on our findings there  is
\nno case for an apportionment of the blame.\n<\/p>\n
In the result, the appeal fails and is dismissed with costs.
\nWe have already passed orders for the payment of the fees of
\nthe   two  assessors,  and  no\tfresh  orders  thereon\t are
\nnecessary.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Asiatic Steam Navigation Co., … vs Sub-Lt. Arabinda Chakravarti on 12 January, 1959 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-169719","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Asiatic Steam Navigation Co., ... vs Sub-Lt. 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