28.
THE EMPRESS OF INDIA' COLLISION CASE.
"
On the 29th ult,, in H. B. M.'s Supreme Court, Shanghai, Sir H, S. Wilkinson, Chief Justice, delivered judgment in the suit instituted by the Imperial Chinese Government as owners of the Chinese oruiser Wong Tai (or Quangtai) against the owners of the British Royal Mail steamer Empress of India, the Canadian Pacific Railway Company, for damages by a collision on the night of the 17th August last, off the coast of China between the Lamooks and Breaker Point.
The reading of the finding took three-quarters of an hour and occupies four and a half of the long columns of the N.-C. Daily News. We only give therefore a summary of the earlier part of the judgment (in brackets), together with the concluding paragraphs in full, both taken from the excellent report of our Shanghai contemporary.
[His Lordship first ruled that the vessels came within the rule that any vessel overtaking another shall get out of the way of the other, and that the burden of proof was on the defen- dants to show an excuse for the collision. This burden the defendanta had endeavoured to discharge by alleging that the mail steamer would have passed the cruiser at a distance of about a quarter of a mile had not the cruiser starboarded her helm in order to get out of the way of a junk, which was slightly on her (the cruiser's) port bow. This statement was put at issue by the plaintiffs and the evidence was very conflicting. The naval assessors were, however, clearly of opinion that the cruiser did not star- board, and after carefully considering their reasons and the evidence his Lordship concurred This conclusion was supported by the plans put in and also by the record of time, from which his Lordship deduced that the collision could not have occurred in the way suggested by the defendants, and that the distance between the two vessels at the time the cruiser was alleged to have star- boarded must have been considerably less than those on the Empress of India supposed. The evidence in regard to the junk was analysed closely and the assessors came to the conclusion that there was no junk at all, but that what was -seen from the Empress was the loom of the fore part of the cruiser with the topmast housed. As to the widening out of the stern light of the cruiser on the mail steamer's starboard, which was another argument in favour of the theory that the cruiser had starboarded, the Court held that the first widening out to one point was explained by the two vessels being on parallel or almost parallel courses, while, as to the second widening, its cause was that the mail steamer was overhauling the cruiser on a course that was con- verging with that of the cruiser, the two vessels being much ne rer than was realised on the mail steamer. The statement entered in the Empress's log-book by a passenger represented in the Court's opinion what would present itself to a spectator in the overtaking vessel when she arrived in the position he described with regard to the overtaken vessel, the two vessels being on convergent courses. It was. however, no proof that the Wongtai starboarded.]
The finding then went on :-
In the case of an overtaking steamer, it would appear to be quite sufficient to show that she did not keep out of the way, even if no specific fault could be shown on the part of the over- taking steamer. But in this case I find that the collision was brought about by the altera- tion of the course of the mail steamer at 11.35 so as to cross the course of the cruiser, and the failure thereafter to keep a proper look-out. Counsel for the mail steanier dwelt upon the numbers who were on the look-out, but the look-out men having reported the light | of the cruiser the responsibility for observing the subsequent course of the cruiser fell upon the officers on the bridge. The third officer had left the bridge to go his rounds before the alteration in the course, and did not go out on the bridge again until the order starboard half a point was given, and the commander was also away from the bridge shortly after giving instructions for the change of course. It is not suggested that the absence of the commander or of the third officer from the bridge was in itself wrong. The commander cannot be always on the bridge, and the third officer was absent in the usual course of his duty, But the result
THE HONGKONG WEEKLY PRESS AND
was that there was only the officer of the watch to keep a look-out on the movements of the cruiser, and it was all the more incumbent on him that he was hauling in his own vessel more closely to the course of the cruiser. I am satisfied after the most careful consideration that he did not keep a good look-out, and that the collision took place in consequence.
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The alteration of the course is similar to that which formed the subject of the judgment in the case of the Seaton (9 P.D.I) and which was there held not to be justifiable. But if a good look-out had been kept the effect of the alteration would have been seen in time to
prevent the collision. It is suggested by the assessors that the failure to keep a good look-out on the part of the officer of the watch may be partly accounted for by his attention being taken up with getting the ship steadied on her course and his eyes being fixed on the compass for some time at least. With that, however, the cruiser is not concerned.
the
owners entitle the
[January 11, 1904.
and I regret that Mr. Davis, who had been officer of the watch on the mail steamer at the time of the collision, and afterwards in charge of one of the rescue boats, and with whom the suggestion appears to have originated, was on his examina- tion asked to state his opinion after the evidence of the gunnery-lieutenant had been given.
I find then that the mail steamer was in fault, and that the cruiser is not precluded by anything in the pleadings from recovering against the mail steamer.
But it was argued that assuming the case to be as stated by the cruiser, the cruiser ought to have done something to avoid the collision, that she ought to have ported. But counsel have already cited the judgment in the Court of Appeal in the case of the Saragossa (68 L. T. 400) showing how strictly the overtaken ship
is held not to deviate to one side or the other so as to embarrass the overtaking ship, which is to have the choice of passing on either side. The cruiser was right in holding on until it became clear that the collision would not be avoided by the action of the maibsteamer alone, and I am of opinion that the cruiser could not then by porting have avoided the collision.
I find then that the mail steamer, the Empress of India, is alone to blame, and there will be the usual decree against the owners for damages and costs, and the usual reference, to the Registrar and merchants.
SPORTING NOTES.
(Daily Press, 9th January.) In spite of war rumours and the general spirit of unrest produced thereby, sport will be brisk in Hongkong this afternoon,
A. very mportant League match takes place on the Cricket Ground; the first of the Football Shield ties will be played in the Happy Valley, followed by a friendly game the same afternoon; and other events of interest make up the list. It was a very good idea to have the return game between the Civil Service C.C. and the Army Ordnance Corps played on the premier cricket ground of the Colony, and no doubt a big atten- dance will be secured. The Civil Service has not been defeated this season. The A.O.C. was beaten once, in the first League engagement with the Civil Service meu. That game was played on the 31st October, when the Civil Service, winning the toss, went in and made 15 (Deveney 28, Brett 11, Extras 22). The A.0,C. could only put up 39, the best individual score being 7. Witchell took 6 wickets for 22 and Lander 3 for 14 in the A.O.C. innings. spite of this the A.O.C., on the strength of their magnificent performances of late, will start rather favourites to-day. Both teams are power- ful in bowling, especially the Civil Service, while the A.O.C. batting is marked by unusual vigour. The game is thought likely to decide the League championship for the season, for no other team is in the running. As I prophesied earlier in the season, the Craigongower C.C. has improved greatly and should finish third, a position which they now occupy temporarily. Could
In
I have assumed throughout that the parts of each vessel which first came into contact was the bluff of the port bow of the cruiser and the starboard side of the mail steamer forward. That is what was first seen by the commander of the mail steamer. The assessors are of opinion, and I quite agree with them, that the collisio could not have taken place as stated in pre- liminary act of the cruiser. that is, the mail steamer's starboard bow striking the cruiser's port-quarter. In the preliminary act of the mail steamer the parts of each vessel which first came in contact are the cruiser's bowsprit striking the starboard side of the mail steamer near the forecastle head. The commander of the mail steamer did not see the bowsprit strike, but there was damage done which it was supposed must have been done in that way. If it were material it might be necessary to consider carefully the evidence with regard to the bowsprit. But it is not material. The statement of the cruiser in the preliminary act that the parts which first came in contact were the mail steamer's starboard bow and the cruiser's port quarter is under the circumstances of more importance. Counsel argued that if it is found not to be oorrect the doctrine of secundum allegata et probata would apply. But the cruiser has alleged and proved the infringement of Article 24 of the regulations, and patting aside all the rest of their allegations that, according to the judgment of the Privy Council in the Hochung and the Lapwing (7 App. Cas. 512), would
of the cruiser to recover. But counsel further argued that the evidence given on behalf of the cruiser in favour of this allegation went to show that the other evidence given by the same witnesses was also untrustworthy. But I think it right to say that the witnesses from the cruiser appeared to me to give their evidence truthfully, and the assessors are of the same opinion. The witnesses did not all agree as to the parts which first came in contact, and judging from the respective positions in which they were it appeared to me that they might very well have been under the impression that the vessels struck where they said they did. Their evidence taken with the evidence of the commander of the mail steamer leaves a doubt whether the injury near the break of the forecastle may not have been caused by one of the davits of the cruiser before the hulls of the vessels came in contact, and whether the angle at which they were to one another at that time may not have been caused by the bow wave of the mail steamer catching the stern ofthe cruiser, and swinging it round. But it is not necessary to pursue that enquiry further. Suffice it to say that
the a sessors the R.E. having "considered with differences in the statements of the wit- H.M.S. Tamar 5 nesses on this and other points which were | R.A.M.C. relied on by counsel as discrepancies I have ¦ H.K.C.C. “A ' come to the conclusion that these are for the Parsees most part accounted for by the different posi- tions in which they were placed, and that there is no reason to doubt their bona-fides.
I have referred to the death of the comman-holders, and H.M.S. Leviathan The Glory ler of the cruiser. I was sorry to hear the sug. gestion that he went down deliberately with the ship. After hearing the explicit evidence of the gunnery-lieutenant who was alongside of the commander when the cruiser 'went down, the suggestion to my mind was clearly disproved
the H.K.C.O. Reserves play a regular team, with a couple of good bowlers, I should più my faith to them for fourth place, in spite of the fact that they have at present one victory only to set against four
defeats.
The following is the revised League table, from which it will be seen that there is a large interval after the two leaders :--
Clubs Played Won Lost Drawn Points
9 8.
24 A.O.C. Civil Service Craigengower 8
6
1
0
16
11
a tè & CO CO CO — H
The Football Shield competition opens to-day with a match between H.M.S. Glory, the
should secure a handsome victory if the Levia- than's form against the H.K.F.C. on Wednesday was anything like true. The match, it should be noted, begins at 2.15 p.m. on the Club ground, while the friendly game between the H.K.F.C. and. H.M.S. Albion follows at 4