April 30, 1898.]
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theless they came into collision. He sub. mitted that on the pleadings as they now stood the Kwanglee was entitled to a decree. The only grounds which were set up by way of defence or justification were:-That the Kwanglee's stern, a fact which they admitted, was showing some 30 feet beyond the end of the fairway, and that there was no light on the stern. They also pleaded that they were driven ont their ordinary course and to the south. ward of a line drawn through plaintiff's stern parallel to the shore in consequence of the manoeuvring of the police launch in the neigh. bourhood. They pleaded also that the moment the possibility of a collision became apparent they stopped and reversed their engines full speed. He would submit that on the face of the pleadings it was for his friend to begin.
Mr. Pollock having mentioned the case of the Indus, said his Lordship would note that it was part of their case that the Kwanglee was not showing proper lights. Part of their case was that the Kwanglee was bound to show a stern light, and his Lordship would note from the petition of the owners of the Kwanglee that there was no allegation by them that they carried a stern light. They evidently felt that that was a weak point in their case, because they were not satisfied with saying they had the ordinary mast-head light, but they tried to supplement that mast-head light with various lights of a most irregular character and such as had never been heard of in any regulations for the prevention of collisions at sea. For instance they alleged that there was a light in the port gangway clearly visible on the starboard side and certain cabin lights which might have been seen by a vessel approaching from the starboard side. He did not know whether his learned friend admitted the regulations for the prevention of collisions at sea were applicable to the Kwanglee, but he was quite prepared to prove that they were.
CHINA OVERLAND TRADE REPORT. of the effect of the local crdinance, but to argue generally the whole point as to the question on whom the onus of beginning the case should
rest.
The Chief Justice-Mr. Francis raised the question not of the onus of proof but as to who was to begin.
Mr. Pollock-And that would involve of course on whom the onus of proof rested.
The Chief Justice said that that was a matter of law. The only point at present was as to who should begin. He had referred to the re- ports and text books, and he thought it was clear plaintiff should begin, so he thought Mr. Francis had better begin.
Mr. Francis said he did not propose to address his lordship at any length as to the facts of the case. They were already fully set forth in the petitions and pleadings and in the preliminary acts, and he would simply proceed to call the necessary evidence.
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forward side of the saloon to the stern, and was entirely open all round. On the morning in question he was awakened by the crash of the collision. He was on deck in a moment, his door being open, and he saw the steamer Powan in a direction and position which he illustrated, She was still pushing ahead across their stern. He was not prepared to say how far she got because be had to get out of the way because of the stuff which was falling down. The Powan backed and then came forward again and struck their quarter boat. He at once- gave orders to sound the wells and looked after the safety of his own ship. With regard to the damage to his steamer two plates were broken aud six stove in, about 70 feet of the main rail carried away, an iron rail and stanchions, about 25 feet of the shade deck, stanchions, and rail, carried away, the rudder broken in three places, and the grating all round the after steering gear smashed.. "The wharf for about 100 feet from its outer end was altogether knocked into the water. It was a clear starlight night. They had cleared away their cargo, and intended sailing for Canton at eight o'clock on the morn- ing of the 25th inst. Quite apart from their lights he could see the steamers' hulls right away to Stone-cutters' Island.
He had never carried a stern light when lying at that wharf. He had never been found fault with for not carrying a stern light when there, and he had always laid in the same position.
26th April.
Edward Burnie, a marine surveyor practising. in Hongkong, said that on the 26th January he was called to make a survey of the steamer Kwanglee. She was moored alongside the China Merchants Wharf side.
on the
western The
James Kirk, chief officer of the steamship Kiranglee, said he had been at sea 19 years and had been on the Kwanglee for the past three years. He was on board the Kawnglee on the evening of the 25th January. She was moored along the China Merchants' Wharf on the west side, where she had been since 1.15 p.m. on the 23rd January. Her stern projected about 35 feet beyond the onter end of the pier. They could not get any further in on account of the irregularities of the bottom. The after cargo port of their steamer had to be brought alongside a gangway on the wharf. On the evening of the 24th the top of the shade deck was about 20 feet above the level of the wharf. There was a space of 15 feet where the shade deck did not come. The taff-rail at the stern would be about ten feet above the level of the wharf. On the evening in question he turned in at nine or ten o'clock. There was
The wharf was a wooden one. then another light in the starboard fore-out-rail of the wharf for between 30 and 50 rigging. Two quarter-masters kept watch feet was partially submerged, being driven to during the night. One of the quarter-masters the castward. He inspected the Kwanglee and came and woke him up at about ten past one in ascertained the damage she had sustained. He the morning. When he got on deck he was knew the Powan. Assuming that the Powcan had finng against the port fore-rigging. He heard been in collision with her and done the damage a great crash at the same time. On running aft she must have been going at a considerable when he got clear of the bridge deck he saw a speed-he should say five or six knots. large white steamer crashing into their stern amined the Kwunglee again on the 27th. Wit- on the starboard side about ten feet from the ness detailed the damage done. His partner, taff-rail. He did not recognise the steamer at Captain Goddard, surveyed the Powan, but he the moment, but he afterwards read the name-- also went over her. the Powan-on the ship's side. The Powan was a great deal higher than their steamer. When he first saw her the Powan was still forging ahead and therefore crushing into them all the time. Afterwards the Powan backed asteru. She backed till her bow was about 100 feet from them. She came ahead again and smashed the captain's gig. He detailed the damage done to his steamer, and added that he found the anchor stock of the Powan on deck. It was in three pieces. He also found about 16 feet of her rail on her deck. At the time he saw that their own regulation light was still burning brightly. At the same time all the side scuttles from the passengers' cabins were lighted. There was also a bright light hang on the port after-dary which W38 Mr. Francis-No; it is for my friend to show about 100 feet from the stem. That light that they do.
Mr. Francis-That is not the question. Mr. Pollock said the question was whether the Kwanglee had her proper lights, and he would again ask his learned friend if he admitted that the new regulations for the prevention of collisions at sea were applicable to the Kwanglee or not, because if he did it would save his taking up some of his Lordship's time.
The Chief Justice (to Mr. Francis)-Do you wish to answer his request?
Mr. Francis said they clearly admitted that they had no stern light but it was rather a novelty to be asked to admit a question of law. It was part of his friend's case to show that the regulations for vessels at sea applied to vessels in the Harbour.
Mr. Pollock-It is a question of fact. Mr. Francis contended that it was a question of law. Their case was that the regulations for the prevention of collisions at sea did not apply in Hongkong Harbour, there being a provision of ordinance as to the light to be burned by a ship at anchor.
Mr. Pollock-This is entirely irregular. The Chief Justice-You do not admit that they apply in this case?
Mr. Pollock contended that if his friend had wanted to set up the fact that other regulations than those for the prevention of collision at sea were applicable to the Kwanglee in the pre- sent case it should have been inserted in the pleadings. This was a matter which had com- pletely taken him by surprise. He had not a copy of the harbour regulations by him.
Mr. Francis said one of the provisions of the specific ordinance to which he referred was that vessels at anchor within the waters of this colony should carry a bright light in some position where it could be clearly seen. It was a matter of law, not a mere harbour regulation, and he was not bound to plead it.
On the application of Mr. Pollock it was decided, in view of this point arising, to adjourn the hearing.
27th April.
Mr. Pollock said that now he had had an opportunity of considering more fully the point raised by his learned friend, he thought per- haps it would be the more convenient course to adopt for him not merely to argue the question'
would be visible across the deck from the star- board side. The aftermost cabin light would be about 32 feet from the taff rail. The night was clear and cloudless, and he could see the outlines of vessels in the harbour a mile or a mile and a half off.
In answer to Mr. Poll. witness said he knew the boats of the Hongkong, Canton and Macao Steamboat Company generally arrived in the harbour at one or two o'clock in the morning. He did not know whether in going up to their wharf they generally took the southern fairway or the central fairway.
the He He
George Sherill, the second officer on Kwanglee, gave corroborative evidence. said the night was cloudy but very clear. could see the ontline of Green Island, which was a mile or a mile and a half from their vessel, quite plainly.
Robert Lincoln, master of the steamship Kwanglee, said he had been in command of the vessel nine and a half years, during which time he had made over 200 trips to Hongkong. Upon arrival in Hongkong he always went alongside the China Merchants Wharf. The vessel was 287 feet long over all. The shade deck extended only over about 70 feet from the
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A. Denison, of the firm of Denison and Ram, said he built the China Merchants Wharf in 1892. It was built of Manila hardwood, iron bolts, and straps. He made a survey of the wharf on the 31st of January or 1st of February, and found it bent over and displaced bodily at the onter end to the extent of 32 feet. To have done this damage the steamer must have been going six or seven knots an hour.
William Lithiby, a constable in the Hong. kong Police Force, said that he saw the collision between the Kwanglee and Powan. There was a very heavy crash, He made a note of the collision at the time and afterwards reported it at No. 7 Station. Directly after the collision he went on board the Kwanglee to ascertain if there was anybody hurt.
John William Landor, another police con- stable also gave evidence.
William Moore, another police constable who was on duty in a steam pinnance in the harbour at the time in the question, said he did not get in the way of any steamer that night.
This concluded the case for plaintiff. Mr. Pollock said he would call his evidencé before addressing the court.
Geo. William Kew, chief engineer on the Powan for over six years, said he was on duty at the time of the collision. The Powan was going at the rate of about six knots an hour at
the time. Before the collision he received an order to stand by the engines. That was at about one o'clock. After the order to "stand by" the order "full speed astern" was given four minutes afterwards. He immediately re- versed the gines full speed. While the enginees were going astern he felt a slight shock. The engines had been going astern about half a minute then. All the orders given were entered in the logbook, which could be produced if necessary. A copy of it was in Court.
In reply to Mr. Fraucis, witness said they began to let the fires go down about 20 minutes before entering the fairway. He calonlated