July 30, 1898.J
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CHINA OVERLAND TRADE REPORT.
Court, we have put certain other questions to the Assessor, and I proceed to set them forth with the answers which he gave to them.
Question No. 1-Having regard to her position and the other circumstances of the case, did the Kwanglee, a vessel at anchor within the waters of the Colony, comply with the requirements of 8. 27 (2) of the Merchant Shipping Consolidation Ordinance, 1891, by exhibiting a bright white light at the place where it could best be seen?
Answer.-No; the place where the light could have been best seen was at the stern, on the eusign post.
the shore. The Kwanglee was carrying a suit able anchor or riding light in the fore-rigging. It was also urged on her behalf that her posi tion was further defined by a light on deck at the port gangway and by the light reflected from the 'tween decks through the portholes on sither side of the vessel. These reflected lights are described by the witnesses for the Respon dents as being "dim or very dim." Both the master and second officer of the Powan took these lights as marking the length of the vessel. The last of these port holes was some 32 feet distant from the stern. There Was no light aft of this point, so that virtually the whole of the projecting por There can be no doubt that this finding is of tion of the vessel was unlighted. It is said very considerable importance to the Kwanglee, by the Appellants and not denied by the Re for its effect is that she was from the spondents that the other vessels belonging to outset in default in not complying with the the Appellants-one at least of which is longer requirements of the law regulafing the carrying than the Kwanglee-are in the habit of lying of lights, and although such an omission does alongside the wharf, but on the other hand it is not induce the same statutory presumption said by the Respondents and not denied by the against her as an omission to comply with the Appellants that those vessels when so lying are Regulations, yet the Court would undoubtedly in the habit of carrying a stern light. Indeed, attach great weight to it. But, with every with regard to the Kwanglee herself, her chief respect to the Assessor, I confess that I am un- officer said :-" Sometimes when we come from able to accept this finding. It is of course clear Canton we moor at the buoy in the centre -see, for instance, the Beryl, L.R, 9 C.D. fairway. Then we always put a stern light." 137-that the responsibility of deciding these About 12 feet from the end of the wharf there and all other matters rests with the judge, and is a green light, placed there in accordance with that, although he is bound to give great weight the requirements of the law. It is alleged by to the opinion of the Assessors, yet, at the same the Respondents that this light afforded a lead-time, if he does not think their view right he is ing mark for their vessels in making the not bound to follow it. In this case it does not harbour after coming through the Capsuimoon appear from the evidence that the master and Pass on their voyages from Canton, and there the second officer of the Powan had any difficulty is no doubt that on the night in question this in making out the light in its forward position, light was concealed from the Powan as she and the same is also true of John Cannan, the came down from the Pass by the hull and master of the steamship Kwongho, which came superstructure of the Kwanglee as she lay into the harbour from Canton and passed close alongside the wharf. There were two Chinese to the stern of the Kwanglee about an hour and quartermasters on watch on board the Kwanglee, a half before the collision. None of these wit- and it would seem that they were awake and nesses complained that they were misled or em. attending to their duties. The officers were as-barrassed by the light of the Kwangler not leep in their cabins. One of the quartermasters was called as a witness and he said he first made out the Powan at a distance of about 300 yards coming up from the west. When he first saw her she was moving ahead-she was moving fast." He made out her white light and her green light; he never saw her red light." When first seen she was advancing at an angle of about 80 deg. to the Kwanglee. After seeing her the quartermaster continued to walk to and fro on the deck, not apprebending that there was going to be a collision between the two vessels. But when the Powan was about 40 yards distant, he saw that a collision was about to take place, and he went to the chief officer's cabin and called him up. This officer had hardly get outside his cabin when the Powan struck the Kwanglee. No measures were taken by any one on board the Kwanglee to avert the collision.
If
being carried in the place where it could best be seen. In Marsden on Collisions, 3rd edn., p. 378, it is said :-"The forestay is a usual, and probably the best, place for a riding light in an open roadstead or river." On the whole, there- fore, I do not see my way to adopt this con- clusion of the Assessor.
Question No. 2.-Considering the evidence of the master and second officer of the Powan and working out the course on the chart and plans put in, was the Powan, in coming in from the Capsuimoon Pass, misled by the absence of a sufficient light on the stern of the Kwang. lee, or by the obscuration of the green light on the China Merchants' Wharf, or by both such absence and obscuration?
Answer.-Yes; the Powan was misled by both such absence and obscuration.
Question No. 3.-When the quartermaster of the Kwanglee first made out the Powan did he act as the rules of good seamanship require? Answer. No; he should have taken measures to attract the attention of the Powan by shout- ing or showing a light.
obscuration of the green light on the China Merchants' Wharf, or both such absence and obscuration contribute to the collision?
Answer. Yes; both such absence and obscura- tion contributed to the collision.
In these circumstances the first question to be determined is by what provisions of law was the Kwanglee bound with respect to the carry- ing of lights? It was argued by Mr. Pollock, both in the Court below and in this Court, that Question No. 4.-Did the absence of a suffici- she came within the scope of Art. 11 of the Re-ent light on the stern of the Kwanglee, or the gulations for Preventing Collisions at Sea, and that therefore, as she was of a length exceed- ing 150 feet, she ought to have carried a light forward and also a light at or near her stern. I have already, in the judgment under appeal, stated my reasons for not assenting to this contention and for holding that the Kwanglee was, so far as the specific statutory requirements as to lights were concerned, subject not to the Regulations but to the provisions of s. 27 (2) of the Merchant Shipping Consolidation Ordin. ance, 1891-that is to say, she was required to carry only one light in the place where it could best be seen. It is only necessary now for me to say that I have not altered that opinion.
These being the facts with regard to the position and obligations of the Kwanglee, the Court below, on the advice of its Assessors, came to the conclusion that Art. 29 of the Re- gulations applied to her, and that, within the words of that article, it was "a neglect of a precaution required by the ordinary practice of seamen and by the special circumstances of the case" for her to omit to carry a sufficient stern light. The Assessor who has assisted this Court has advised the Court in precisely the same way on this point, and I conour in his opinion. ****In consequence, however, of the further full we discussion which the case has undergone in this
Question No. 5.-Assuming the Kwanglee not to have projected beyond the end of the China Merchants' Wharf, would the Powan, manœuvr- ing as stated by her officer, have come into collision with her?
Answer.-Yes; but only to a comparatively slight extent.
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In these findings I concur. At one time I had some doubt on the point whether the quar- termaster of the Kwanglee had an opportunity to take measures to warn the Powan of the danger into which she was running, but on con- sideration I am satisfied that the right view of the matter has been taken by the Assessor.
the Ordinance, see s. 24 (2) of the Intèrpre- tation Ordinance, 1897.) I am inclined to think that the Kwanglee, moored as she was with her hull projecting for a considerable distance into the southern fairway, was anchored in violation of the spirit if not of the letter of this enactment, and, if this be so, it follows that she was infringing the law of the harbour by obstructing to a certain extent the fairway which the Powan was entitled to have clear for her passage to her landing-place, and which she was in the habit of using for that purpose. It is said on behalf of the Kwanglee that she lay as she did at her wharf with the tacit approval of the harbour authorities, but to this it may be answered that, even if such an assumption can be made, the acquiescence of those authorities in an infringement of the law cannot affect the liability of the person who is guilty of the infringement.
These then are the facts with regard to the position of the Kwanglee on the night of the collision and the conclusious as to that position and as to the conduct of those on board of the vessel which I have arrived at, with the assist. ance of the Assessor. It remains to consider whether, on these facts and conclusions, the Kwanglec is to be held in part to blame for the collision.
A number of cases were cited
on both sides of this question. None of these cases were quite like the present one in its oir- cumstances, but it was said that some of them resembled it sufficiently closely to allow of the proper application of their principles of de- cision. In considering these cases, and indeed in dealing with the case generally, it is necessary. to bear in mind the difference between the posi tion of a vessel in motion and that of a vessel at anchor. This difference is expressed by Lord Esher, M.R.,-see the Indus, L.R. 12 P.D. at p. 47-as follows:-"It is the duty of a vessel in motion to keep clear of one at an- chor, if the latter can be seen, and if she does not keep clear then she must show good cause for not doing so."
The Industrie, L.R. 3 A. & E, 303, was the case of a vessel across the fairway of the chan- nel leading to the harbour at Hartlepool, with- out any light exhibited. The Blue Bell pro- ceeding up the channel in the early morning, while it was still dark, came suddenly upon her, and, by putting her helm hard-a-port, escaped collision with her, but took the ground under her bows and did damage to herself and also to a wall against which she drove. It was held that the petition of the owners of the Blue Bell disclosed a good cause of action, and that the Court had jurisdiction to entertain the action. Sir R. Phillimore said-see p. 308
It has been contended that there was no obligation upon those in charge of the Industrie to exhibit any light to warn other vessels of her position. But independently altogether of the Regulations for Preventing Collisions at Sea,' I think those in charge of a vessel aground at night in the fairway of a navigable channel are bound by the general maritime law as ́ad. ministered in this Court to take proper means to apprise other vessels of her position."
The John Fenwick, L.R. 3 A. & E. 500, is a somewhat similar case. There it was held by Sir R. Phillimore that when a vessel casting off from moorings in a navigable river places herself at night partly athwart the fairway, so that her regulation lights cannot be seen by ressels astern of her coming up the river, she is bound to make use of some conspicuous signal to warn them of her position. The Granton, the vessel in these circumstances, had exhibited
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or near her stern an ordinary service lantern, but she had aud could have exhibited a proper riding lamp. The learned judge said :- "Those on board the Granton should have · used as a warning signal the very best light they had on board. It is true there is no special regulation defining the signals to be used in such a case as the present; but It may also be pointed out that it is enacted the provisions of the 20th article of the by paragraph 6 of Table M. of the Merchant Regulations for Preventing Collisions at Sen Shipping Consolidation Ordinance, 1991, that state that nothing in those rules shall exonerate no vessel whatever shall anchor in any of the any ship from the consequences of any negloot fairways," and that by s. 43 of the Ordinance any to carry lights or signals, or of the neglect of offence of this kind is punishable by a penalty any precaution which may be required by the not exceeding two hundred dollars and, in de ordinary practice of seamen or by the special fault of payment, by imprisonment with or with- circumstances of the case. There is no evidenc out hard labour not exceeding three months. of any negligence on the part of the John (As to the schedule of an Ordinance being part of' Fenwick. I must, therefore, pronounce the
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