June 18, 1898]
SUPREME COURT.
June 13th.
IN APPELLATE JURISDICTION.
BEFORE SIR JOHN CARRINGTON (CHIEF JUSTICE) AND MR. JUSTICE WIBE (PUIBNE JUDGE), WITH LIEUTENANT STERLING (H. M, 8. "BONAVENTURE") AND CAPTAIN Finch (8.8. “GaɛLIU") AS ASSESSORS,
THE
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COLLISION,
"" POWAN KWANGLEE In this case, which was commenced on Monday, Mr. Francis, Q.C. (instructed by Mr. Dennys) appeared for appellants and Mr. Pollock (instructed by Messrs. Deacon and Hastings) for respondents, the appellants being the China Merchants' Steam Navigation Com- раду, owners of the Kwanglee, and the respondents the Hongkong, Canton, and Macao Steamboat Company, owners of the Powan.
Mr. Francis said that before actually pro- ceeding with the appeal there was a preliminary matter to which he would with very great respect ask their lordships' attention, and that was with reference to the assessors whom their lordships had appointed to sit on that appeal. In England the assessors were selected from a special list of Trinity Masters-all men of very great age and experience, commonly retired master mariners-but here their lordships had no such list from which to select, and of course were at times in very great difficulties in consequence of the absence from port of a suitable person, or a suitable person not being able to remain in port a sufficient length of time to dispose of the case. Therefore their lordships were undoubtedly empowered to select their assessors and make such appointments as they thought fit. At the same time he would ask their lordships' permission to take an ob- jection to one of the assessors whom their lord- ships had named, mainly on the ground that he was a junior officer in the naval service to the naval assessors who sat on the hearing of the case in the court below, and he need hardly remind their lordships that in both military and naval courts it was the rule, for the fur- pose of avoiding the effects of the natural in- fluence which the opinion of the senior officer would have upon the junior, for the junior He would submit with all respect to their lordships, and with the greatest respect to one of the assessors whom their lordships had chosen, it was hardly reasonable to place a junior officer--and a very junior officer, if he might be permitted to say 80-as assessor in a court of appeal when a senior officer in the same service had sat as
to cast his vote first.
assessor in the court below and had already given his opinion on the matter. Both the assessors who assisted in the court below were commanders in the Navy-one in active service, and the other retired. He would also submit with very great respect that the officer selected from the Royal Navy on this occasion was not of a rank which it had been customary to select for such a purpose. He thought that on one occasion a lieutenant in the Royal Navy had served, but he was a senior lieutenant. He submitted that the gentleman to whom he had taken objection could not be expected to have that practical experience and knowledge of seamanship which in England qualified for appointment as a Trinity Master and for a seat as assessor in the Admiralty. He would, therefore, submit with all respect that their lordships should select another assessor or that they should consent to sit with one assessor only.
The Chief Justice, after consulting with his learned colleague, said he regretted Mr. Francis had thought it necessary to raise this question, because of course it was embarrassing to the court and more embarrassing for the person to whom objection had been taken. When the case came before the court on the last occasion the court thought there should be two assessors, and suggested that the parties should agree on these assessors, and in case of disagreement the court would nominate two as-
sessors. The court was informed a few days ago that the parties had failed to come to au agreement with respect to the assessors.
That at once showed the difficulty there was in getting impartial and competent assessors
CHINA OVERLAND TRADE REPORT.
in that court. He might mention that Com- mander Rogers, of the Royal Navy, was nominated by one of the parties, but the other party objected.
Mr. Francis-That was not so.
485
Some argument ensued as to whether this point was raised in the court below.
Mr. Francis subsequently continned his open- ing, and then proceeded to deal with the evid-
ence in the court below.
court rose.
The hearing had not concluded when the
14th June.
any
obli-
as extending from the Praya outwards to the junk anchorage. Though this was defined as the southern fairway, nevertheless the same Government in the exercise of powers contained in the Building Ordinance of 1889 had au- The Chief Justice said that at any rate there thorised the erection of a certain number of Was no consent. He subsequently remarked piers and wharves running out-one of them that Commander Rogers would have been nom- nearly 300 feet-into this fairway from its inated by that court but for that fact. They southern boundary. Therefore it was mnt a tried one or two sources and they failed, and question as to whether 30 or 35 feet projected. Gaelic, and Lieutenant Sterling, of the Bonaven-length of the wharf-projected into the fair- they ultimately asked Captain Finch, of the into the fairway, inasmuch as 283 feet-the fure, to sit with them as assessors. Lieutenant way Stirling was junior in rank to the two officers who sat before, but he understood he was in no way under their command. They had no au- thority ovor him, and he did not see why he could not exercise an impartial and inde- pendent judgment in the matter. They could not admit that a question of that kind required very long years of experience. He saw no
reason to interfere with the ap- pointment of Lieutenant Sterling. Mr. Justice Wise--I concur.
Mr. Francis, continuing, said the propositions ships will of course take a note of my objection," Mr. Francis, having observed, "Your lord-
of law for which he contended in this appeal wero -first that the Kwanglee was not to blame for said this was an appeal from the two snits one and not carrying a stern light. The second portion two, 1898, and consolidated together and heard
was that they said they were not-under recently before his lordship the Chief Justice sit- gation to carry a stern light, not being required ting in the Admiralty Jurisdiction of the Sup-by regulation so to do as a matter of ordinary which took place in the harbour of Hongkong. entitled to assume that the judgment in the reme Court. The action arose ont of a collision care, skill, and seamanship. He thought he was The two steamers concerned were the China court below did not proceed against them on Merchants' Company's steamer Kuanglee and that ground, and they were not held to blame Company's steamer Powan. the Hongkong, Canton, and Macao Steamboat in the court below for not, when the Powan · at the time the collision occurred was moored risk of collision first became apparent to those was within 15 or 160 feet from them and the The Kwanglee at the China Merchants' Wharf at the western
on watch, having then and there shown a light.
The Chief Justice-I think that is so. extremity of the harbour, and the Powan was making the customary voyage as the night boat from Canton to Hongkong. The Powan, in coming into or entering the southern fairway cumstances stated a fixed stern light. in the harbour, came into collision with the Kwanglee moored at her wharf, striking her with her starboard bow about 12 feet forward of the stern on the after side and doing very wharf to which the Kwanglee was moored, and considerable damage to the Kwanglee, to the of course necessarily to herself. Two suits were commenced, one by the Kwanglee against the Powan and one by the Powan against the wanglee. These two suits were consolidated and taken together-claim, reply, and counter- claim. The decision of the court was that both the Kwanglee and the Powan were to blame for directing the assessment of damages by the the collision. and the usual decree followed, Registrar of Merchants and directing that each vessel should pay half of the damage done to the other, and each bear and pay her own costs. The notice of motion to appeal was from that portion of the judgment of the court below which found that the Kwanglee was in any way to blame for the collision. After reading over the notice, Mr. Francis proceeded to deal with the judgment delivered by the Chief Justice, commenting upon the different findings. He suggested that it would have been better for the court below to have considered in the first instance whether the Powan was or was not so managed that she was solely to blame for the collision, whether or not, assuming the Powan to be in fault, she could not by the exercise of ordinary care, skill, and diligence bare avoided the collision, because if that was the conclusion at which the evidence, it was unnecessary to consider whether court had arrived from a consideration of the
the Kwanglee was to blame or not.
The Chief Justice- - Of course you admit that the court in considering the case of the Kar glee considers it in reference to the facts
before it.
Mr. Francis said yes. He was only taking a very trifling objection, which was not an ob- jection on the merits, as it were, but he sub- mitted it might have led to incorrect conclu- sions when the case was approached from that point, conclusions which would not have been arrived at if the case had been approached and considered from the point of view that vessel a vessel in motion running into a
at anchor was prima facie to blame. Com- menting upon that part of the findings which found fault with the Kwanglee for projecting some 30 feet into the southern fairway, Mr. Francis said the fairway was laid down by law
Mr. Francis-I think the view of the court was that we ought to have had under the cir-
The Chief Justice- think it was clear when a collision became evident to the Kwanglee there was not time to do anything.
Mr. Francis, continuing, said he understood they exhibited a want of ordinary care and that the judgment of the court below was that skill and seamanship in not carrying a fixed stern light on the stern. Their position with reference to that was that it had always been held that it was not right for any vessel to carry, that was to carry as distinguished from exhibiting permanently, any fixed light not provided for by the regulations. Therefore he aised law for them to have carried such a light. submitted it was contrary to knowu and recoge
Mr. Pollock said that with regard to the conduct of the Kwanglee in this case, he would point out that it was expressly found by the court below, and it was the opinion of the nantical assessors, that it was a neglect of a seamanlike precaution for the Kwanglee not to have a stern light up, and that was a finding of fact. It was also found by the court below, as & finding of fact, and it was a finding with which the nautical assessors who assisted the court agreed, that that neglect of the Kwanglee to carry a stern light did contribute to the collision. These two findings were arrived at on the advice of the nautical assessors, after' a full consideration of his learned friend's argu- ments, and after a full consideration of the
actual deameanour and conduct of the witnesses
in the witness box, and after fully considering the way in which the witnesses in the box bad marked the different positions of the vessels upon the chart and upon the plan. He should be able to show the court that the rule was that the court of appeal would not upset the findings of the court below upon a question of fact nn- less it was absolutely convinced that the finding was erroneous, and that considerable pressure come to the conclusion that any finding of was required to induce the court of appeal to
fact by the court below was erroneous.
The hearing was not concluded when the court rose.
15th June.
not finished when the court rose.
Mr. Pollock continued his argument, and had
It was stated that Captain Finch would not be able to sit again, as his vessel leaves.
The case is still proceeding.