1372
Thursday 10th November.
In Summary JURISDICTION.
BEFORE HIS HONOUR T. SERCOMBE SMITH (PUISNE JUDGE.)
LIEUT. LUMSDEN v. H.K. AND KOW100N WHARF AND GODOWN CO.
THE HONGKONG WEEKLY PRESS AND
The Hon. E. H. Sharp, K.C., instructed by Mr. Gedge (solicitor, of Messrs. Johnson, Stokes and Master) appeared for the N.D.L., and Mr. M. W. Slade (barrister), instructed by Mr. John Hastings (solicitor), for the B. I. S. N. Co. The Norddeutscher Lloyd claimed judgment for the damage occasioned by the collision and costs; a reference to the Registrar. assisted by merchants, to assess the amount of damage; and such other relief as the case might
The hearing of this case was resumed, Mr. Looker, for the defence, said the plain-require. tiff's duty was to prove beyoud reasonable doubt that there was n-gligence on the part of the defendants. He quoted several cases, and sought to show that the Legislature having sanctioned the use of trucks on a public highway, it was the duty of the public, for instance, to get out of the way of passing trams.
His Honour remarked that it amounted to an authorised nuisance, for there could be no doubt that trucks on a public highway constituted a public nuisance.
Mr. Looker admitted this. He said it must be taken that the Legislature in authorising the use of trucks on a public highway presumed that the nuisance would cause a certain danger to the public. He spoke on the principle of identification, and argued that when a passenger engaged a ricksha he identified himself with
the puller. Rickshas were all palled by Chinamen, who only knew Chinese. He thought he might truthfully say that the majority of those who used the rickshas did not understand Chinese, so that their only way of indicating their wishes was by signs or the use of simple expressions. It was the universal practice for the drivers, however, to control the rickshas, particularly in the direction in which they were going. In fact, they had the general control. In the present cas, the plaintiff told them very clearly that when he cams round the corner of Elgin Road he told the coolie to go very slowly, as there was no difficulty in catching the ferry, which was just coming in, and he did not want to run the risk of being run into by a. trolley When he did that he at once assume the entire control of that ricksha for his own safety. Apart from the general principle the plaintiff, by his own ast, identified himself with the accident, and it was peculiar to note that the particular act was to prevent himself being thrown out. He would therefore suggest that there was undoubtedly contributory negligence on the part of the ricksha coolie. The coolie undertoo the risk of running across this track, and was in the main responsible for the accident. He laid
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stress on the fact that the watchman and the coolies pushing the truck called upon the ricksha-man to stop, and that it stated that he (the coolie) could have stopped had he desired Had Lieut. Lumsden been keeping a proper lookout, he would have seen the trolley coming. and it was obviously the day of both the plain tiff and the coolie, knowing the frequency with which trollies crossed the road, to proceed at such a rate the ship blooking the view-that the vehicle could be pulled up without the slightest fear.
Mr. Grist, for the plaintiff, argued that it was impossible to imagine that a man engaging a ricksha could be assumed to have control over
the ocolie. If the coolie on his journey delibe. rately ran into something how could the passenger be held responsible? It could never be upheld that the coolie was under the passenger's control at all. same as a man taking a hansom cab at home. Could the fare reasonably be supposed to have the control of the driver beyond directing him
which way to turn, etc.
It was the
His Honour finally said he would deliver a written judgment at an early date,
Monday, 14th November.
IN ADMIRALTY JURISDICTION.
BEFORE SIE H.S. BERKELEY (CHIEF JUSTICE),
AND Capt. HON. BARNES LAWRENCE R.N. (NAUTICAL AssessOR),
A plate U
N. D. L. 8,4. WONGKOI” #. B. I. 88. "UJINA"
This was a consolidated action between the Norddenischer Lloyd S. N. Co., as owners of the British India s.s. Wongkoi, and the British India 8. N. Co., as owners of the s... Ujina.
The B. I. S. N. Co. counterclaimed the con- demnation of the plaintiffs in the damage caused to the Ujina, and also costs of the actions; to have an account taken of such damage with the assistance of merchants; and sach further relief as the ose required.
The Hon. E. H. Sharp (with reference to His Lordship having received an application for the Ujina's evidence to be taken first, it being more convenient for the witnesses) said, that this was now unnecessary, as the Devawongsi arrived from Bangkok on Sunday with the Wongkoi's witnesses.
Mr. Slade said that as the arrangement had been made they would do better to proceed with his witnesses. He was not pre pared to cross-examine the other witnesses.
His Lordship opined that it would be better to take the Wongto's witnesses; why reverse the parties? What did Mr. Slade mean by not ready?
Mr. Slade said he had not been through the He had only four urgent witnesses. log books.
Hon. E. H. Sharp objected, but His Lord- time to waste, and ship said he had no the case was proceeded with, the Ujina's wit- nesses being taken first.
J. Chivers, chief officer of the Ujina when the collision occurred, gave evidence :-At the
time the Ujina was coming from Singapore to Hongkong. Her gross tonnage is 5,310; nett 3.426. There was about 8,000 tons deadweight of general cargo and bunker coal on board at the time of collision. The vessel is 420 feet long overall; nominal h.p., 290. Her ordinary full speed is about eight knots. She is a single screw steamer. On the 3rd August we first of all observed the Wongkoi coming up astern of us, This would have been overtaking cur ship. between five and six o'clock in the afternoon.
We
She passed us well outside Green Island, pro- bably five or six miles south of it. She was proceeding towards Sulphur Channel. When she passed through Sulphur Channel we lost She was then approximately sight of her. about a mile ahead of us, possibly more. stood оп the course till reaching Sulphur Channel, and then passed through. I was the forecastle head then at my station. After passing through the Channel the course may have been altered, but I do not like to give evidence on that roint as I was forward. I did not see the Wongkoi any more to know it till, after. I was told that it was the Wongkoi
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we had collided with. A few minutes later I saw the signal lights of the steamer with which we collided, and thought she was pro- ceeding out of the harbour on a westerly course. I saw what I took to be two white mast-head lights and a red side-light. When I first identified them they were about two points on our port bow,
this the light drew
After
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[November 19, 1904,
that from
the
heading, and cannot therefore she was heading. I may time I got the order to stand by my attention was so taken up that I did not notice any lights on the other ship; I was mostly facing the bridge. I expected that we would hit the other ship, in the event of a collision, on the port side, as when I last saw the signal lights the Wongkoi had her port side 'to us-s least that was the inference.
Mr. Blade suggested that the lights might have been on the wrong side.
Witness (continuing)-Idid not notice the other ship's mast-head lights after the collision. I was busy heaving up anchor and examining our own damage. I do not know if the other ship was at anchor. I do not know what way our ship had on. She may have been going half-a-knot or less. Our stem (steel ship) was twisted around starboard, and our bow plates were buckled. The ordinary anchor lights of a ship with her head to the east, supposing there was also the addition of a red side light, would lead one to believe that the anchor lights were mast- head lights, and the ship was proceeding on a westerly course.
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His Lordship-You saw mast head lights? M. Slade-Our case, My Lord, is that the Wongkoi was at anchor. As soon as she drop. ped anchor she took in her side lights, and in taking them in put the red light down on some- where where it showed across the ship, and that is what we saw and took to be the steamer's red light, and thought the vessel to be under way.
Witness continued-They turned out after- wards to be auchor lights. The light to the left was the lower of the two. The foremsst masthead light should be the lower of the two, but the after anchor riding-light should te the lower of the two. In this case the light to the left or westward was the lower of the two. The difference in height of two mast-head lights of a vessel under way is not less than fifteen feet. In the case of anchor lights the difference must also be fifteen feet, but vice versa. I saw the red light between and below the other lights. When we let go the anchor there was about five fathoms of water; our draught was 24ft. 4 in. ' forward and 24ft. 8in. aft.
Cross-examined, witness said -I took no part in the actual navigation. The pure-wallah (Lascar look-out man) reported the lights, I did not do so; my voice would not carry, the distance being quite 200 feet. The lights were reported by sounds on a bell.
Counsel-H+re you no means of communicat- ing from the bridge in case of danger?
The
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Witness-My voice would not carry. look-out man would strike once on the bell for something on the port side, twice for something on the starboard side, and three times for some- thing ahead. Two strokes on the bell was given by the Lascar on the look-out. That was just about the time I saw the lights myself.
His Lordship-Are you absolutely certain you saw a red light?
Witness-Yes, my Lord, I hold a master's certificate, and have passed a colour test.
His Lordship (holding up a piece of blotting paper)What colour is this?
Witness-Pink.
Continuing, witness said-In a ship of this size the height of the forward (lower) mast-head light above the deck would be about forty feet. The lower anchor light, usually hoisted on the halyards of the flag-staff at the stern, at a height of 10 to 15ft. above the deck. I could not see the ship's hull at all; I know of no system by which I can tell, the actual height of the lights. When I first saw the lights they
were
ahead a bit. It is exceedingly hard to give an estimate of how far the lights were off; I should say half a mile. The night was dark and the hull of the ship could not be seen at all. I received an order to stand by the starboard anchor, almost simultaneously with the lights drawing ahead. I simply stood by; it being stations everything was ready; I had only to release the pin from the tumbler. Soon after-
on the port-bow; they were afterwards wards-about a minute -I received the order ahead. I should say we were under the in- to let go the anchor. I promptly let it go,fluence of starboard helm. I do not know if wo there being no hitch. I then saw that we were close down on the other ship; immediately before this my attention was taken up with the anchor. Hoping to check the ship's way I allowed fifteen fathoms of chain to go out, and then applied the break. This was the utmost chain I could afford to pay out, as we were c'ose down on the Wongkoi. We then struck the other ship on the starboard quarter. We backed out from her; I received orders to heave up anchor, as we were going to another berth. I saw that we had struck her on the starboard side, and I think she was heading in an easterly direc tion. I do not know how We were
were still swinging when the collision occurred. We struck at a slight angle, say of seventy degrees towards the stern at the moment of impact. We must have scraped a little for-- ward. The anchor had the effect of checking the ship's way. The ve sels were only a few feet distant when I applied the break. I applied the break at from ten to fifteen feet. Looking down the Ugina's bow I could not see what damage had been done to the Wongkot that speaks how difficult it was to distinguish things under the conditions. The electric lights on the Wonghoi's, deck blinded me. I should say we were about a hundred feet from the
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