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THE HONGKONG WEEKLY PRESS AND
[February 10, 1906. in default, was her default the cause of, or did it, first on the end of Salt Flats and the point of contribute to, the collision? The law applicable collision is 1,200 feet more to the east than that to the circumstances, as alleged by the plaintiff given by Captain Walker. The distance be to be derived from the Regulations, is this :— tween his two points is 7,393 feet and no enleula- The Tai Oo," being overtaking ship, was tion on any possible basis of speed justifies it. bound by the Article 24 to keep out of the way Moreover, were bis points correct the "T i On " of the "Kwong Tung." the overtaken ship, and would have been still further behind the she was not relieved of this duty of keeping out "Kwong Tung' and the collision could not of the way or "keeping clear," as it is termed have occurred. at all. This calculation shows in Article 24. by the fact that the "Kwong something else to which I will refer presently. Tang" increased ber speed nutil she was finally This material point, however, is not so much past and clear. The Kwong Tang on the what the position of the two ships was at the other hand was bound by Article 21 to keep time of the collision as what occurred during her course and speed. It is admitted that the these six minutes. Did the "Tai On" first pass Kwong Tung did increase her speed after the" Kwong Tung" and was she then overtaken she was overtaken. It is at this point that the by the "Kwong Tung ?" We must see, there- highly technical and arbitrary but salutary rule fore, what was the position of the two ships of procedure already referred to applies-"The after the first and after the .cond minute. plaintiff may not contradict his Preliminary It is not necessary to go further, because after Act." The application of the rule is said to be the second minute the "Kwong Tang" had this: Unless the "Tai On" can prove that she gathered her full weigh, and being then the had in fact passed the " Kwong Tung" she must faster ship, the Tai On" could not havO fail in spite of the fact that the "Kwong Tung" overhauled her. After the first minute's run, herself violated Article 21 by increasing her
the "
Kwong Tung" had covered 633 feet, speed. Whether or not this is the true applica- the "Tai On" 661 feet. After the second tion of the rule is, as I shall show presently, a minute's run the "Kwong Tung" had covered difficult question, but it seems to me essential 633 plus 733 feet (or rather less if she first to certain what in fact happened during took more than one minute to gather her full the tim which elapsed between the overtaking weigh), in all, 1,366 feet. The "Tai On" and the collision. If the "Tai On" did in fact in the same time had covered 661 plus 661+ pass the Kwong Tung," then it will be unnecess- foot, in all, 1,322 feet. Given those speeds, ary to consider the legal question. If she did it is clear that the "Tai On" could not have not, then this question becomes of paramount gained more than 41 fest which, giving import nice. As was very frankly admitted by Her 50 feet overlap at the moment the learned counsel for the plaintiff, the evidence of overtaking, would not put her anywhere is conflicting. It is indeed conflicting. I hinted near where she alleges she Was. It during the trial that it might be possible that would only bring ber bow about up the Court would believe neither of the stories to the funnel of the "Kwong Tung," but she of the two captains and this is proved to be a never could have passed her. But the extra- fact, for, as I shall show presently, not only does ordinary part of this calculation is that though the evidence of the captains of the two ships it is based entirely on Captain Walker's own differ, but there are serious discrepancies on both figures it contradicts the evidence of himself sides in the evidence given in support of the and his witnesses. He admits that the “Tai captains' statements. This has necessitated a | On's "bow was a little forward of his own bow, most minnta calculation of speeds and distances which is impossible. Not only that, but, with which I now proceed to explain. The speeds these figures, the "Tai On" at the end of the of the two vessels at different times may, six minutes' run would have been so far behind with one exception, be taken as they were-350 feet-that in this case also the collision given in evidence, as the experience of Cap-could not have occurred. But there is, as I tain Morrison confirms them. The "Tai On" have said, one figure in this calculation which was going all through the material time at is no doubt the speed at which the "Kwong 6 kn ts over the ground. The Kwong ||Tung was going when the order full speed Tung's" half speed is 51 knots. After the ahead was given. As the fact of the collision Kwong Tang had gathered her full weigh, having occurr. d does not fit in with Captain that is, after her full speed had taken full Walker's figure of speed, we must try Captain effect, she was going at 71 knots over the Lawrence's statement as to the "Kwong ground under a low head of steam, The Tung's speed. He says she was going slow. debatable question is whether she was put to The Assessor gives her 3 knots if this is true. full speed from half speed, as Captain Walker Further, her own engineer gives her 2 minutes says, or from slow, as Captain Lawrence says. for gathering full weigh from slow to full The time within which she would have gathered speed. We have, therefore, this result:-The full weigh will differ in the two cases, and I "Kwong Tung" would have run 4 minutes at must examine the question from both points of 7 knots-2,932 feet-and 2 minutes at an view taking two minutes as the time from slow averuge speed between 3 and 74 knots, ie., 2 to full speed and one minute as the time from minutes at 50 knots-1,040 feet-in_ail, 3,972 half to full speed, noting, however, such varia-feet. The "Tai On," as we have seen, had run tions as may be necessary owing to the " Kwong Tung's" engineer's statement that the time from balf to full may be rather more than one minut. The Assessor considers, after a very careful examination of the chart, the positions, both at the point of overtaking and of collision is given by Captain Walker, to be fairly accurate, this distance being 4,900 feet. We shell. however, determine it with greater accuracy. The Assessor is also of opinion that the time of overtakin was 5.22 and the time of collision 5.28 That is to say, that both ships ra for six minutes after the " Tai On over- took the "Kwong Tang" and before the collision occurred. The Kwong Tang," therefore, ran for five minutes at 71 knots 3,660 feet, taking the knot as 6,80 feet, and one minute gathering weigh at 64 knots, that is, taking the average between 51 and 74 knots, gives 633 feet-in all 4.293 fent. The "Tai On" ran for six minutes at 64 knots-in all 3,966 feet. The length of the Tai On" is 180 feet, so that the difference Letween these two results, namely, 327 feet. is nearly two ship's lengths. If the "Kwong Tang" gath ered full weigh from half to full speed in rather more than one minute, as the engineer stated, this difference would be only slightly reduced. This calculation is important in the first place, as showing that Captain Lawrence's point of overtaking and collision are incorrect. He says he overtook the "Kwong Tung" at the
of $20,000. This, though irrelevant to the aotion, was mentioned at the opening of the case and also the fact that an agreement had been entered into between the owners of the two ships that the owner of the ship found to blame should bear the loss occasioned to the owner of the junk. I regret that this fact was mentioned, becanso it seemed to indicate a desire on the part of the owners of the steamers-a most laudable desire as it seems to me that justice should be done all round. But it is clear that no consideration of what I may call rough justice or equity should appear to influence the conclusion at which, with the most valuable co-operation of the Assessor, Captain Morrison. agreed to by both parties, I have arrived. It is the more important that I should state this, because I have to deal with a highly artificial rule of procedure in the construction of which there is not too much guidance in the books or authori- ties. I must note, too, that such an agreement as has been referred to seems to have obviated the necessity of a cross action for damage to the “Kwong Tung "in which the application of this rule of procedure might, I think, have been simpler than it is. There is, however, no cross action nor have the proceeding taken the form of an action by the owner of the junk against the ship owners. Having thus cleared the ground, I proceed to examine the, facts and arguments advanced by both sides. Paragraph 12 of the plaintiff's preliminary act alleges in the first place that "The Tai On' had passed the 'Kwong Tung.' The defendant's first argument deals with this statement, he relies on the rule to which I have referred above and which for the present I adopt in the form in which it is usually stated-"the Court will never allow a party to contradict his own Preliminary Act at the hearing and he maintains that the plaintiff's evidence does not bear out this allegation, that, if he has proved anything, it is another fact altogether, and that, therefore, whatever fault the "Kwong Tung" may have committed in increasing her speed, if it be a fault, the plaintiff must fail'in his action. But I think this argument goes too far. Elaborated, it is, as I understand it, this :-- The facts set out in the Preliminary Act amount to a statement that the "Tai On" was the overtaking, the "Kwong Tung the overtaken vessel, and, therefore, this statement must be read subject to Article 24 of the Regulations for Preventing Collisions at Sea-in other words that this sentence of Paragraph 12 of the Preliminary Act must be read:
The Tai On" was past and clear of the "Kwong Tung." This was supported by a further argument that breaches of the Regula- tions must be specifically stated if not by a reference to the actual number, at least, by language corresponding to the regulations, and this is supported by the text books But the Assessor has explained to me the wide difference which exists between the word “ past" aud the term "past and clear," the latter term as used in Article 24 means that the overtaking ship has not only passed the overtaken ship but is sufficiently clear to manoeuvre with safety, which she could not do if she were merely past. I can, therefore, not assent to this argument, for if I were to hold that the word "past" must be read as past and clear in the sentence I have quoted, it would be tantamount to holding that an action would not lie on an allegation that the "Tai On" was past the "Kwong Tung" merely. I think that this action is one for an alleged breach of the Regulations applicable to the facts as set out and I think farther that, though there is no reference to the Fegulations by number, there is a sufficient reference to them in Paragraph 14 of the Preliminary Act which, specifying the fault or default attri- buted to the other ship, says: "Not keeping to the starboard side of the channel, not keeping out of the way of the Tai On; 'not slowing down, not stopping or reversing engines when danger of a collision arose.' I shall presently go into a minute examination of the figures. For the present, however, it is sufficient to say that the Assessor considers that the Tai On" was not past and clear of the "Kwong Tung" | and the evidence, in my opinion, warrants this conclusion. This preliminary point disposed of, these questions remain to be decided:-Was the "Tai On" past the "Kwong Tung," and, if 80, was the "Kwong Tung " in default, and, if
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3,966 feet. The importance of these figures is this:-We do not know exactly how far the bow of the "Tai On" overlapped the "Kwong Tung's" quarter at the point of overtaking, but it seems to have been about 50 feet. The damaged plate of the 'Kwong Tuog” was about 40 feet forward of her stern post, so that the relative position of the two ships was to all intents and purposes the same at the point of overtaking as at the point of collision, and these last figures bear this out, for at the speeds on which the calculation is based the two ships had run practically the same distance -3,972 feet and 3,966 feet respectively. It is, therefore, abundantly clear that the " Kwong Tung was not going at half speed when she was over- taken, but at 3 knots, that is, slow, as Captain Lawrence alleges; and it is also abundantly clear. that not only is the 3 knots right, but that all the other speeds and positions on which the calculation is based are right. We can now examine the different positions of the two ships after the first and after the second minute. The "Kwong Tang" after the first minute had ran 520 feet. The “Tai On" bad run 661 fest. gaining 141 feet. After the second minute the Kwong Tang" had run 1,040 feet and the “Tai On" 1.322 feet, thus gaining 232 feet, which is 100 feet more than her length. But, and this is the crux of the calculation, the “Tai On." in order to get past the "Kwong Tung," would have to run Brat the length of the
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