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THE HONGKONG WEEKLY PRESS AND
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from the bows to within 30 feet of the stern. did not notice the stern until I was on the wharf." I am satisfied that those on board the Powan became aware of the unlighted after- part of the Kwangice as soon as they could be expected to do so. The Poncan was at that moment moving towards the Kwanglee at an angle of about 80 deg. and inside of a line drawn through the stern of the Kwanglee and parallel with the shore. She was moving at a speed of about six knots. Having regard to the position of the two vessels, it does not need mach nauti- cal skill to know that the only thing the master of the Powan could do to endeavour to avert a collision was to put his helm hard-a-starboard and go full speed astern. This he did immediate ly i
the orders were obeyed; and the vessel's head went off about a point and a half to port. But it was too late, and the Powan strack the Kwanglee in the way already described. In my opinion those on board the Powan became aware of the wrongful position of the stern of the Kwanglee too short a time before the collision to admit of their taking any effective measures to counteract the danger flowing from that position. I think, therefore, that the doctrine of collision to which I have been referring does not apply in the present case.
But it is to be remembered that the Nautical Assessor has advised the Court that, assuming the Kwanglee not to have projected beyond the end of the wharf, the Powan, manoenvring as stated by her officers, would still bare come into collision with her, although only to a com- paratively slight extent In this opinion he is not in accord with the Assessors in the Court below, who thought that in that case the Kwanglee would not have been struck. So far as I can form an independent opinion, I am inclined to think that there would have been impact between the starboard side of the Pouan and the stern or port quarter of the Kwanglee, but that it would not have been at all serious in its character. Yet it may be said that this conclusion shows that the Powan was in fault, irrespective of the question about the projecting stern of the Kwanglee. But then this con- clusion, apparently unfavourable to the Powan, necessitates the consideration of some other questions. What was the effect upon the Powan, in her earlier course, of the other neglects found against the Kwanglee? For instance, if the green light on the wharf had not been obscured, would not the Powan have made a more favour able approach to the fairway? If there had been a stern light on the Kwanglee, would not the Powan have refused to give way to the launch, or at any rate have slackened speed or stopped, seeing that hy porting her helm she was running into something like a cul de sac And, lastly, if the Kwangice had made warning signals when she first sighted the Powan, would not the latter have been able to take measures in time to avoid a collision ? It seems difficult, if not impossible, to say that these or some of these questions should not be answered in the affirmative, and if so it follows that on the balance of probabilities, the negligence of the Kwanglee contributed to the collision.
This may
seem a hypothetical way of dealing with the matter, but such a way was adopted in the Swansea v. the Gondor, L. R. 4 P.D. 115. There the steamship Condor came into collision in the River Thames with a barge which was the last of three in tow of a steam tug and was not carrying a light as directed by the rules of the Thames Conser- but there was no evidence that the want vancy; of a light contributed to the collision. It was held by the Court of Appeal, reversing the deci- sion of the Admiralty Court, that the steamer was not to blame, and that she might have acted differently if the barge had carried a light. James, L.J., said, at p. 119:-"But though the steam-tug could not stop, there was no notice given to the Condor that that was the state of things; there was nothing to inform the Condor of the fact that there was a train of barges be- hind the tug, and, in the absence of that in- timation, the circumstances were so likely to throw the Condor into a difficulty that I can. not consider that we ought to hold the master! of the Condor to blame for not having done that which he might have done; or, rather, for having done that which he probably would not have done if he had known what the state of things was, and, if he had received that full in- formation which he ought to have received from
the tug and barges, by the exhibition of that light which plainly by the rule ought to have been exhibited."
It was argued by Mr. Francis that the carrying of a fixed stern light by the Kwanglee would have been actually misleading, and especially to vessels coming from the east, and further that it would have been an infringement of Art. 1 of the Regulations for Prevent- ing Collisions at Sea. But as to the first point it may be observed, first, that, as a matter of fact, the other vessels of the Appellauts are proved to have carried stern lights while moored at their wharf, and. secoudly, that if the Re- gulations bad applied she would have been bound to do the misleading thing by carrying the stern light. As to the latter point, the Regulations prescribe the carrying of a stern light for a vessel like the Kwanglee, and although in my opinion the Regulations do not apply and therefore she was not bound by express pro- vision to carry such a light, still there is nothing in Art. 1 to prevent her from carrying it; if she desired to do so.
For these reasons I remain of opinion that the Kwanglee was also to blame for the collision, and I-think that this appeal should be dimissed with costs. I. W. Carrington, C. J. Mr. Justice Wise said :-These cross actions were brought in consequence of a collision which took place in the harbour on the morning of the 25th of January last at about 1 a.m. between the steamship Powan and the steamship Kwang- lee. The Poian was on her way from Canton to Hongkong aud rau into the Kwanglee whilst moored at her wharf. On the evidence before him the learned Judge in the Court below, who was assisted by two nautical assessors, decided that both vessels were to blame. From this decision, in so far as it affected the Kiang- lee, the owners of that vessel appealed. The owners of the Powan did not appeal, so that the question for this Court is whether the Powan is wholly or partly to blame. For the purpose of considering this question the conduct of those in charge of the Kwanglee on the morning of the 25th of January. Now the facts, as disclosed by the evidence, with reference to the Kwanglee are as follows.
The Kwanglee was moored, which I take for the purposes of this decision to be the same as anchored towards the shore at her owners' wharf and in her usual way. This wharf practically forms part of the southern boundary of the fairway of the harbour and has a green light (as required by a local enactment) on the corner nearest to the stern of the Kwang- lee. The Kwanglee carried the usual riding light in the fore-rigging and her stern pro- jected beyond the wharf into the fairway for about 35 feet and this portion of her was practically unlighted. The Kwanglee also was moored in such a manner that she pre- vented any vessel, approaching in the same way` as the Pocan, from seeing the green light on the wharf. Two quartermasters were on watch on the Kiranglee, but only one was called and from his evidence, although he
the Powan some 300 yards off, and again later on, he never did anything to attract the attention of those on beard her.
saw
[July 30, 1898.
seen is not in the fore-rigging, but at the stern, and in this opinion I am supported by the nautical assessor in this case. It is true that according to the evidence the Kwanglee has been in the habit of mooring in the same way at the same wharf without a stern light, but the evidence shows that the captains of other steamers belonging to the same owners were in the habit, when mooring at this wharf, of exhibiting a stern light, indicating that in their opinion such stern light was desirable from a seaman's point of view. Under these circumstances I think that the absence of the stern light brings the case within the limits of Article 29 of the said Re-
reads thus: gulations which
"Nothing in these rules shall exonerate any vessel or the owner or master and crow thereof "from the consequences of any neglect to carry lights or signals or of any neglect to keep a proper look out or of the neglect of any pre- cantions which may be required by the ordin- ary practice of seamen or by the special oir- cumstances of the case. This is also the view taken by the nautical assessors. I think also that such neglect contributed to the collision.
ES
Next, with regard to the obscuration of the green light on the end of the wharf by the pro- jection of the stern of the Kwanglee into the fairway. It is clear that the light was directed to be put there by the local legislature for the purpose of marking the position of the wharf, and it is clear that if the light might be obscured there was no reason for its presence.
Now the uncontradicted evidence given ou behalf of the Powan shows that her officers were in the habit of looking upon that light as a leading mark in making for the fair- way, and I am of opinion, in which I am confirmed by the nautical assessor in this case, that the obscuration of that light by the projection of the stern of the Kwanglee into the fairway coupled with the absence of a stern light was calculated to mislead the Powan, and I further think that by mooring in such a manner the captain of the Kwanglee showed a want of reasonable and seamanlike skill and I think that his conduct in this respect contri- buted to the collision. Again, with regard to the look-out on the Kwanglee, it seems to me that the quartermaster on duty ought to hare taken (as for instance showing a light or otherwise)" some means of informing those on board the Powan of the position of the Kwanglee, but on his own showing he did nothing even up to the I therefore agree with my nautical last. assessor that this failure brings the case within the scope of the Article 29 previously mentioned. On the above facts Iam of opinion that the conduct of those in charge of the Kwangles showed a want of reasonable and seamanlike skill and contributed towards the collision.
But granting all this it was argued on behalf of the Appellants that in consequence of the faulty navigation of those in charge of her the Powd was placed in such a position that the collision was inevitable and that the absence of a stern light, the obscuration of the green light, and the obstruction of the fairway by the stern of the Kwanglee could not have contributed to the collision.
The
Now to consider these facts in detail. First, The evidence on behalf of the Powan is that with regard to the light carried by the Kwang-she had to change her course to avoid a lee. I use the word light in the singular advisedly police launch. Counsel for the Appellants con as I consider that the light burning at the gaug. tended that the story about the launch way and those reflecting through the ports have was purely imaginary and invented simply no bearing on this case. It seems clear that to explain the extraordinary manoeuvring of the Article 11 of the last Regulations for the Proven- Powan. This entails an inquiry as to whether tion of Collisions at Sea does not apply to this there was a launch there or not, and we were case (see Article 30). We are therefore thrown asked to give a decision on this point. back on our local enactments, if any.
appellants rely on the evidence of P.C. Landell as to this, but I must say that in my opinion his evidence was not altogethor satisfactory both with regard to his alleged ignorance of com plaints against police launches and also as to the impossible position in which he placed his launch, and I am inclined to believe the evidence of those on board the Powan, strengthened as it is by the evidence of P.C. Lithiby, who described the course taken by the Powan when approaching the wharf.
Ordinance No. 26 of 1891 section 27 sub-section 2 is as follows: "Every master of a ship, hulk, or "other vessel, not being a boat propelled by oars, being at anchor in the waters of this Colony "shall from sunset to sunrise cause to be exhibited "a bright white light at the place where it can be best seen, but at a height not exceeding twenty feet above the hull, and in default shall be liable to a penalty not exceeding one “hundred dollars.”
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Now it seems to me that where a vessel is moored against a wharf with her bows into shore and her stern projecting at right angles from the land into the fairway for a distance of 35 feet, with practically no light what ever on any portion of that projection, best the place where the light can be
A further argument was also raised on behalf of the Appellants, viz., that the Powan could recover nothing even though the Kwanglee was guilty of negligence as aforesaid, if the Powan by the exercise of reasonable care could have avoided the collision, that is, as it seems to me, that the Kwanglee could not be liable for what.
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