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February 10, 1906.]
Kwong Tong" minus the overlap, that is, 200¡ feet minus 50 feet, 150 feet plus her own length, 180 feet-in-all, 330 feet. The position, there- fore, of the two ships at the end of the second minute was that the “Tai On's" bow would have been 132 feet ahead of the bow of the "Kwong Tung," that is, 48 feet short of actual passing. After that time she began to draw astern. The Assessor has checked and agrees with these calculations Before, however, finally adopting them, it is necessary to see how far they agree or conflict with the evidence. I have, therefore, extracted from the statements of the witnesses on both sides what they say as to the relative positions of the two ships: Lawrence, Captain of Tai On":"Kwong Tung was dead astern, could not tell how far, nor on which side her bow flagstaff was aft of my taffrail: passed her at 5.15: at 5.20: 10 minutes after heard her coming up: her bell rang when the ships were right abreast.
Stainfield, Chief Engineer.-When I came out of cabin "Kwong Tung was passing us : her stem amidships of our funnel: her engineer was abreast of our engine-room sky-light: im possible for our bow to be amidships of "Kwong Tung": our bow quarter ship's length ahead of "Kwong Tung.'
Sing, Pilot. Passed "Kwong Tang "at 5.15: 18 feet apart: got ahead of her two ship lengths: collision ocourred immediately after reversing.
Ma Chi, Quartermaster.-We went ahead of Kwong Tung" in 12 or 13 minutes (she had just passed the Barrier-after 5): 8 or 10 minutes after she went ahead of us: can't say how far "Tai On" passed "Kwong Tung," as I could not look behind.
Walter, Captain of "Kwang Tung" "Tai On" caught us up at 5.20: it might have been a little later. After “full speed" she drew up for 2 or 3 minutes till she was abeam: her bow a little forward of our bow: never forward of that.
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Mead, Chief Officer.-Saw "Tai On" abreast of our funnel: gradually coming ahead till fan- néls in line: bow abreast of bridge. Half minute after telegraph bow abreast of our funnel.
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he says "the Tai On' green screen was, to prove one which did in fact contribute to opposite our red soreen" and when the assistant the collision? Before stating finally the course pilot, after he had been fetched, got to the which I intend to adopt, it is necessary to give wheelhouse "the Tai On's' stem was near definite findings on other points raised. The our red screen." Now, clearly, what these two Assessor is of opinion, as a seaman, and I, men saw happened after the Kwong Tung 83 8 judge, entirely concur, that the had gathered full weigh, and when the "Tai course of the "Tai On "
prior to On" was falling back, and this is really the overtaking, as traced by Captain Walker, effect of what the chief pilot says, "The Tai is wholly imaginary and that at the On's' stem was up to our wheel-house" when he moment of overtaking there was no danger of went out to look, but he adds she got no further collision, and, therefore, that the reference to ahead "because we were full speed. The those cases which tako account of what has been chief pilot ought to know what he is talking termed "the agony of the moment" are irre- [about. He must know that what he says is mean- levant. Captain Walker's own statements to ingless unless the Kwong Tung" had gathered questions which I put to him show that there her full weigh when he went out to look. WAS no agony," but the reverse. The Therefore, when he went out to look the "Tai Assessor is further of opinion that the On" must have begun to fall back. I think Kwong Tung" did not during the material these three Chinese spoke truly to what they time starboard her helm; also that the fact saw, but we have to ascertain what they did not that the "Kwong Tung was in shoal water The chief officer also contradiots the in, the channel has no material bearing on the captain, but his own evidence, I am sorry to say, collision. With regard to the “ Tai On," he is of is open toerious criticism and the models show opinion that she was sufficiently close to the that, if the funnels were in line, as be says, the Kwong Tung" to feel the effect of suction, Tai Ons" bow could not be abreast of the and that she did veer under the influence of the bridge. It would have been practically level 'Kwong Tung's" propellers and the counter- with the "Kwong Tung's" bow. A skilled acting effect of her own rudder; and, last, witness has no right to come into this court that the cause of the "Kwong Tang" swinging and make such loose statements. If he had to port was first the blow on her quarter and given te slightest consideration to the dimen- afterwards the effect of the ebb tide. I take it sions of the two ships, he would have known that the allegation in the 14th Paragraph of that what he said was calculated to mislead the the Preliminary Act that the "Kwong Court and it was not until the models were Tung" did not keep to the starboard side supplied that I could test the accuracy of his of the channel means what is stated in statement. The evidence of the engineers of Paragraph 4 of the Petition that she star- the two ships does not carry as much further. boarded her helm and endeavoured to cross ahead It simply amounts to this, that at some time of the "Tai On." The plaintiff has not proved or other they were level and exchanged all of his facts, bút has, however, proved one, greetings. The evidence of the captain of the that the "Kwong Tung" altered her speed.
Tai On" is not much, more reliable, He insists that the bow flagstaff of the Kwong Tung was aft of his taffrail and that, ten minutes after. he heard her coming up. Taking his statement o Paragraph 12 of the Pre- liminary Act, I was disposed, at first, to think that he had used the word "past" in a loose conversational way and as meaning "passing." and that the evidence which has been derived from the figures supported it. But the Assessor | reminds me that captains of ships know or ought to know the regulations by heart and in such an Important matter as passing another ship they cannot use loose phraseology. Moreover, his evidence shows that he meant past, because he added" I did not know on which side of me the Kwong Tung" was," The evidence of Ma Chi the quartermaster, though it speaks of the "Tai On" passing the "Kwong Tung." ia confused as to the time, as he talks of twelve minutes having occurred between the over- taking and the collision. This minute analysis of the evidence shows that on both sides it is unreliable, and I, therefore, adopt the position of the ships as shown by the figures, I now come to the point of law. The "Tai On" alleges that she had passed the "Kwong Tung." We have found as a fact that she had not passed but that So far as the “Tai On' evidence is she was only passing Does he, therefore, fall concerned that of the pilot may be put on within the application of the rule that the one side as imaginary. So far as the evidence plaintiff may not contradict his Preliminary of the Kwong Tung is concerned, the Act? As to this, I have the greatest dogbt most serious discrepancy occurs between and for this reason. I have stated the law the statements of Captain Walker and Mr. applicable to the circumstances as alleged by Lewis, the passenger. The Captain says that plaintiff and as derived from the regulations the "Tai On's" bow was a little forward of but, under the circumstances of this collision, the his bow though never forward of that, necessity of the “Tai On" showing that she was but Mr Lewis says that the "Tai On's" past and clear not being in issue, it is in material bow came no further than the wheelhouse of whether the "Tai On" was past the "Kwong the "Kwong Tung" and that the bows of the Tung or not, for precisely the same law, as I two ships were never level. These two state- have stated it, would apply to both ships. If the ments cannot stand together, and although we "Tai On" were only passing the "Kwong may not be able to accept Captain Walker's we Tugg" her duty would still have been to keep certainly reject that of Mr. Lewis. For some out of the way, and the duty would still have reason or other, the passenger takes too much remained with the "Kwong Tung" not to alter interest in the case. He could see what the her course or speed. It cannot be contended learned counsel, who was cross-examining him, that, if the "Tai On" was passing, the Kwong was "driving at, though why, I am at a loss Tang" could not be held to blame in whole or to understand. He was merely called de bene part for a breach of Article 21, and the doubt I hese to state what he saw, not to fence for the have in my mind is whether this rule applies in counsel, and what he saw was not what Captain the case of failure to prove an immaterial fact. Walker saw, nor is it borne out by any other I can find, nothing in the decisions bearing on evidence. The chief pilot's evidence also dis- this point. There is also another point of law. agrees with that of the Captain, though ap- The Tai On" makes four distinct allegations. parently agrees with that of the passenger. Must she prove all of them, or is it sufficient But, on a little closer analysis, I think for her to prove one ? In other words, does his evidence is more in accord with what the rule apply to the extent of saying that the sailor Yuen and the assistant pilot said. I a plaintiff must prove all his facts as alleged in When Yuan went to fetch the assistant pilot, his Preliminary Act, or is it sufficient for him
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Cordeiro, Engineer. Came on deck 5. 22: soon after full speed": saw Tai On" over- taking us slowly stood a little while, waved to engineer of "Tai On," went below, funnels level. Yean, Sailor. When I went to fetch Assis- tant Pilot, "Tai On"
green screen opposite our red screen.
Pui Ki Assistant Pilot.-Going to wheel- house saw" Tai Ou's" stem just beyond our funnel: when I got to wheel-house her stem near our red screen.
Chi, Chief Pilot.-After "full speed" went out of wheel-house to see: "Tai On's stem was ap to wheel-house, but got no further ahead because we were "full speed."
Lewis, Passenger (de bene esso).——Saw Tai On" approaching: her bows came no further than wheel-house: her bow never level with our bow.
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Shorn of all irrelevant and untrue facts, and of the inevitable arguments based on them, what occurred, in our opinion, was simply this": The "Tai On" on her normal course over- took the "Kwong Tung" and nearly passed her. The "Kwong Tung," in order not to be passed and to get to Canton in her proper berthing order, increased her speed. Neither captain would give way and a race ensued though the narrow channel where events, in spite of Captain Walker's opinion that it was quite a normal state of affairs, showed that t was dangerous for two ships to be alongside going at full speed, the end of the race being the collision. It is olear from these findings that by the breach of regulations applicable to her in the circumstances, each vessel contributed to the collision. The "Kwong Tang" by increasing her speed and committing a breach of Artiole 21 and so putting herself in a position approximate to the "Tai On" in a narrow channel where she must have felt the operation of the suction, and the "Tai On by not keeping out of the way of the Kwong. Tung committed a breach of Article 24 by putting herself in proximity to the Kwong Tung" in a nar- row channel where she must have felt the operation of the suction. Before, however, judgment can be given on these findings, there are points of law to be decided and facts to be gone into in order to see whether it is necessary to consider these questions. I don't think we have heard enough from either side on these points to warrant my giving judgment without further argument. It would not be right to express au opinion on them without further consideration, unless, indeed, the parties, in view of the agreement which they have entered into, are willing to accept judgment irrespective of these points. As this is essentially a ques- tion of seamanship, and of great importance to navigation in the Canton River, I have requested the Assessor to deal with it.
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Captain Morrison-In this case there is not enough reliable evidence on either side to corroborate the captains' evidence. It is extremely bad that the master of any ship should have to keep watch; the captain should be there to command the ship, and there should be an officer on each watch. In this case there is only one officer on board, and I believe the Ordinance only provides for o one. A ship carrying 1,000 passengers should have two officers, and one should be on the watch at all times. Had there been an of
offoer and the captain on the bridges of the vessels in this case, we should have got a great deal, more evidence than we have. The passenger who
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