96
Granton alone to blame." The 20th article of the Regulations of 1863 here mentioned corresponds with the 29th article of the Re. gulations of 1897 already referred to.
Two other cases which resembled these two in their circumstances and in which similar principles of decision were applied are the Philofaze, 3 Asp. M. C. (N.8.) 513, and the Queen Victoria, 7 Asp. M. C. (N.S.) 9, in the Court of Appeal.
THE HONGKONG WEEKLY PRESS AND
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These four cases were cited by counsel for the Respondents in the Court below and some of them in this Court in support of his argument that the Kwanglee, although lying in a dangerous position, had neglected to take proper precantions to mark her position so as to warn approaching vessels of it, and was there- fore to blame, either wholly or at any rate in part, for the collision. Counsel for the Appellants contended, on the other hand, that these cases did not apply because they were all cases of vessels which were in motion and which, having got themselves into an abnormal position or manoeuvring in an irre- gular manner, were held bound to warn other vessels of their position, and that the case of the Kwanglee was different because she was not in motion but was lying moored at her custom ary wharf in her customary manner, But I think a careful consideration of these cases shows that the rules laid down in them are properly applicable to the decision of the case before the Court. In the first place, the vessels concerned, although, with one exception, techni- cally under way, were all more or less motion. less at the time of the collision. The exception is the Industrie, which, so far as I can ander stand the report of the case, was aground. In the next place, the ground of decision in each of the cases was that the vessel concerned, being in such a position in a channel or fair- way as to obstruct it and so to cause a danger to navigation, did not take sufficient means to warn approaching vessels of that danger. I do not myself apprehend that it makes any dif- ference in the application of such a rule whe ther the vessel to which it is applied is techni. cally under way or is anchored or moored. Nor do I apprehend that it makes any difference whether the obstructing vessel is causing the obstruction with the whole of her bulk or only with part of it.
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July 30, 1898.
mutatis mutandis, have been used of the Icok out on the Kwanglee. It does not appear from the report whether the second mate of the Belmont, when he first saw the Thomas Lea, could or must have known that she was coming up to enter the basin, but in the present case there can be no serious doubt that the quarter- master of the Kwanglee knew that the steamer coming towards her was a steamer of the Re- spondent Company; that she was or her way to her wharf, and that that way would take her past the unlighted and projecting stern of the Kwanglee.
Applying these principles to the facts of this case, I adhere to the opinion which I expressed in the Court below that the Kwanglee was guilty of negligence and that such negligence contributed to cause the collision.
President that if the barge had been moored alongside a navigable channel and her stern had, through want of proper attendance, swung out into the fairway and been struck by a pass- ing vessel, the result would have been different. A case that to some extent resembles the present in its circumstances is the Thomas Lea, 3 Asp. M.C. (N.S.) 260. There the steamship Belmont was lying on the ground at the en- trance of the tidal basin of the Sunderland Docks. Her head was towards the dock gates and her stern projecting into the river. In this position she was struck on the port side about 20 feet from the stern by the steamship Thomas Lea, which was about to enter the basin. The collision took place about 8.15 p.m. on the 19th January, 1876. The action was brought by the owners of the Belmont | against the owners of the Thomas Lea. There But then it is argued by Mr. Francis that, was no cross-action! In the course of his notwithstanding this finding, the Kwanglen is judgment Sir R. Phillimore said: "There not to be held liable in damages, because her can be no doubt that it was the duty of the case falls within the rule of law that where Belmont, whilst she remained in this position there has been no breach of a specific regulation at the entrance of the dock, to take every pre- on the part of any vessel, then such vessel is caution to warn other vessels entering of that not to be held liable for any negligence contri- position. She says she satisfied that require-buting to a collision if the collision could have ment in the following way she put up two been avoided by the exercise of ordinary care lights, one in her starboard fore-rigging, and and skill on the part of the other vessel. This view the other three feet above the wheel, the wheel of the case was not presented to the Court be. itself standing two and a half feet from the low; at least I can find no mention of it in my deck. It is admitted that the light in the fore-notes of the learned counsel's address, nor is it rigging could have no effect in apprising vessels mentioned in the notes taken by Commander entering of the position of the Belmont; as it could Hastings. not be seen by them in consequence of interven- ing objects on shore; it may, therefore, be left out of consideration. The only question then is, whether, she had a light over the wheel or the stern, and if that light was of sufficient power in itself, and at the time in a proper con- dition, and if so, whether that was a proper precaution. Now the first duty of the Belmont, in the circumstances, was to have a proper look out. The mind of the Court, assisted by the attention of the Elder Brethren, has been anxiously directed to an examination of that point. The mate was on shore, and his orders were to put up two lights, one aft and one in the starboard fore-rigging; the anchor watch was kept by a sailor who has not been exam- ined, and who is said to be on a foreign voyage, Where was the second mate? It seems that common prudence would have suggested and he should be at the stein looking out.
He was not there. He was walking up and down the deck, forward and aft, and he gives this extraordin- ary evidence, that before he had taken a walk forward he saw the masthead light of a steamer coming up the river, five or six miles off; and when he returned from his walk he found the masthead light of a vessel pretty close, com- ing right into his port quarter. What did bo do? Did he take any steps when he first saw the
malous position where no one could expect a vessel to be? He did nothing whatever. Io my judgment and the Elder Brethren are of my opinion--he ought to have blown the whistle, and taken every precaution to announce his position, instead of which the converse is the case, and hence the result. What measures were taken to avoid the collision? None whatever the only precaution taken was the placing of the light aft, and it becomes important to con- sider the evidence with regard to that light." Then he finds against the quality and position of the light, and proceeds: The result at which I have arrived, with the advice and assis. tauce of the Elder Brethren, is, that the Bel- mont has not shown that she used the precau- tions it was incumbent on her to adopt in her peculiar position, and that unquestionably she had a bad look-out, and, therefore, she cannot recover in this snit. I dismiss her petition with costs."
Mr. Francis on the other side cited, amongst others, the case of the Hornet, [1892] P. 361. There the facts were that a barge was lying in a dock which was lighted by electricity. There was no one on board of her at the time of the collision. She was moored head and stern to the wall of the quay. In this position the tug Hornet struck her stern and sunk her. The Judge of the City of London Court held that there was "no duty on people to have men on board a barge in the dock," and he gave judg-vessel coming up, and knew he was in an ano- ment against the owners of the Hornet. The owners appealed to the Divisional Court, and the appeal was in part based on the ground that, even if the Hornet was to blame, then the barge was also to blame as no one was in charge, and on the evidence the barge must have shifted her position, which would have been prevented if some one had been on board. This contention was thus dealt with by the President (Sir F. Jeune) in dismissing the appeal There remains a question which is partly one of law and partly one of fact. It is said that there was no one on board this barge, and that if she had been properly moored her stern would not have come out and so presented an obstacle against which the Hornet ran. Assuming, however, that there was no one there and that the steru did come out, we cannot bring ourselves to think that that raises any case which would make the barge liable as well as the tag, on the ground that there was contributory negligence; for, which- ever way it is put, it appears to be clear that the absence of the person on the barge had nothing to do with the collision. There was plenty of light, and the Hornet could see per- feetly well where the barge was.
The Trinity Masters also think, and we agree, that there is a broad distinction between leaving a barge in a dock, where there is no tide, and therefore no rise and fall, and leaving it in a tideway where the ropes require tending."
It seems to me that there are well-marked points of difference between this case and the one before the Court. And it may reasonably be inferred from the language of the learned
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In the Ceto, 14 A.C. at p. 694, Lord Herschell in the course of his judgment said:-
:-"It is evident that neither the President nor his As- sessors dealt with the question whether the Ceto ought to have stopped. It has been explained to your Lordships that this arose from the point not having been distinctly taken before that tribunal. In the Court of Appeal, how- ever, it was definitely put forward by the present Appellants, and the opinion of that Court was prononnced upon it. It has been said that there was nothing to prevent this course being pursued, that any question aris- ing upon the pleadings and evidence was open in the Court of Appeal, even thongh not taken in the Court below. This is no doubt true as a general rule. I do not think it necessarily applies where, if the point had he distinctly taken it might have suggested, eities to counsel or to the Court, questions to the witnesses which were not put. The matter, however, was entertained by the Court of Ap- peal, without objection apparently on the part of the Respondents.”
These observations apply in the present in. stance, and, therefore, although I regret that the attention of the Court below was not called to the point, I proceed to consider whether it avails to relieve the Kwanglee from the conse- quences of the negligence found against her.
The rule referred to is thus stated in Marsden on Collisions, 4th edn., p. 25:---“ (1) A ship. A may recover full damages against the other B when the collision was caused entirely by the negligence of B, including the case where the collision would not have occurred but for the negligence of A. provided B could with ordinary care have avoided it; (2) A
can
recover nothing if with ordinary care exercised up to the moment of collision she could have avoided it; (3) A can recover half damages, although with ordinary care exercised up to the moment of collision she might have avoided it, if B, by the exercise of like care might have avoided it; (4) in the last case B recovers half damages.”
The following were the principal authorities cited by Mr. Francis in support of his argu- ment on this point:-The City of Antwerp and the Friedrich, L.R. 2 P.C. 25; Cayzer v. Car. ron Company, L.R. 9 A.C. 873; and the Monk Rosa, [1893] P. 23.
It is to be observed that the learned judge does not discuss or express any opinion on the In the second of these cases, which was heard conduct of the Thomas Lea, although she was in the House of Lords, the steamship Clan Sin- the moving vessel while the Belmont was sta-clair came into collision, in the day-time, with tionary. It may, of course, be admitted that the Belmont was in a more anomalous position than the Kwanglee, but in my opinion the difference is one of degree rather than of kind, And it is noteworthy that the Belmont had actually put up a light at her stern and that the second mate was on duty on the deck besides the anchor watch. The language used with regard to the look out and the measures taken, or rather not taken, to avoid a collision might,
the steamship Margaret in the Thames. The navigation of the Thames in that part of it where the collision took place is governed by express rules, but there is no statutery sanction attached to them; they contain no provision analogous to that embodied in s. 419 of the Meroliant Shipping Act, 1894, which declares a mere departure from the statutory rules to constitute fault-fault from which the offerd- 'ing vessel can only excuse herself by show
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