Page
July 30, 1898.1
CHINA OVERLAND TRADE REPORT.
point, the master of the tug, thinking that it was about time to get a rope on board the Monte Rosa, threw a line, which missed, then star. boarded, and again threw a line; but this time the tug was so negligently handled that she sheered across the bows of, and came into colli. sion with, the Monte Rosa. The tug sustained considerable damage, which was caused by the anchor of the Monte Rosa.
In the course of the argument of counsel for the plaintiffs, the owners of the tug, the learned judge clearly indicated the ground on which his decision proceeded. He said-p. 25: -As those in charge of the tug could see the anchor, must they not avoid it? Though they could see the anchor was in a wrong position, still they chose to run against it! Does not that bring the case within the principle of con- tributory negligence at common law ?" In the result be held that, at the time when the tug sheered towards the steamer, no want of care was exhibited on the part of the steamer which could in any way have affected the matter, and that the lug was alone to blame. He therefore dismissed her claim, with costs.
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gence caused your damage, but without your negligence my negligence would have caused you no damage.' There is no contributory negligence unless it leads substantially to the cause of action. This is simply a case in which both parties are equally to blame, because both parties through their own fault caused the damage. Therefore, according to the Admiralty rule, the damage is equally divided between them."
It appears to me that there is a considerable resemblance between the facts and circumstances of this case of the Margaret and of the case before the Court. In each case there was a vessel in motion which ran into a vessel at rest. In each case the vessel in motion was held in fault for negligent navigation, and but for that negligent navigation there would have been no collision. In each case the vessel at rest was anchored or moored in a proper and customary place, and if that were all, the onus cast on the moving vessel to relieve herself of the blame for the collision would be overwhelming. But in each case there was something belonging to the vessel at rest which was improperly placed: in the case of the Margaret it was the anchor hanging against the rule, in the case of the Kwanglee it was the unlighted stern projecting into the fairway against the law. I can discern no difference in principle between the anchor and the stern in the two cases. In each case the moving vessel came into collision with that something which- was not in its proper place, suffering damage from it in both cases and also causing damage to it in one case. But for the improper presence of that something there would have been no damage in the case of the Margaret and no collision in the case of the Kwanglee. In say.. ing this I do not lose sight of one of the findings already set out, but I will refer to that finding presently. And, lastly, it is clear that in each case the moving vessel was unable to make ont the presence of this something improperly placed until it was practically too late to do anything to prevent a collision with it.
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ing that "the circumstances of the case made departure froin the regulation neces- sary." There was much debate whether the Clan Sinclair had manoeuvred so as to infringe this rule; the Judge of the Admiralty Division held that she had not done so, and that the Mar- garet was alone to blame, while the Court of Ap- peal held that she had broken the rule and that both vessels were to blame. The House of Lords entertained doubts on this question, but they On these facts it was held by Gorell Barnes, assumed for the purposes of their decision that J., that the owners of the steamer were not the Clan Sinclair had broken the rule. Making responsible, for though the Thames rule was this assumption, the House of Lords held that infringed, the position of the anchor was a it had not in point of fact been made out that matter within the province of the pilot in navi- the neglect of duty in not obeying the rule was gating the vessel, and, secondly, though the a part of the fault which occasioned the accid- steamer was guilty of negligence in breaking ent, and therefore that the Margaret was alone the rule, still the fug, by ordinary care, exerted to blame. Lord Watson concludes his judg-up to the moment of the collision, might have ment as follows-at p. 886 :-" Now I assume avoided it, and the consequent damage. in favour of the respondents that the Clan Sin-' clair violated rule No. 23. In my opinion, that rule must be regarded as prescribing to ship masters and others navigating the Thames cer- tain reasonable precautions to be taken by all who have occasion to be in that part of the river near Blackwall Point; and I think that a vessel which is proved to have disregarded these precautions must accept the onus of showing that the neglect of them did not contribute to any collision or damage which may have occurred at the time or subsequently. But then I am of opinion that in the present. case the Clan Sinclair has discharged herself of that onus. I think is is made out by the evid- ence that nothing was either done or left undone by those who were navigating her which can
It is instructive to compare this Case reasonably be regarded as one of the causes
with an earlier one in which a similar of the collision. The result was to bring the collision was dealt with. It is the case of vessel a good deal further down the Thames the Margaret, L.R. 5 P.D. 238; S.C. on Appeal, than she ought to have be; and if that L.R. 6 P.D. 76. That was an action of damage conduct on the part of the Clan Sinclair had instituted by the owners of the dumb barge been such as to place the Margaret at this E Wo against the schooner Margaret. The disadvantage, to throw her into difficulties and collision took place under the following circum- make it doubtful what course she ought to stances. The Margaret was anchored at pro- pursue, then I could hardly have excused the per place in the River Thames, but having her Clan Sinclair from contribution to the collision anchor swinging by the cable perpendicularly in the present case. But the fact was not so.
from the hawse, with the stock of the anchor The new and wroug position into which I
not awash, which was contrary to the 20th rule assume the Clan Sinclair had been brought of the rules and by-laws for the navigation of by her neglect of the rule, was perfectly the River Thames. The E Wo was proceeding apparent to those on board the Margaret, up Blackwall Reach with a cargo of tea shortly apparent for a considerable time and a con- after midnight, and was navigated by two men siderable distance-for a time and distance who were rowing her, and by reason of their of such appreciable extent that they could negligence she came into contact with the Mar- with ordinary care have avoided the collision-garet and the fluke of the Margaret's anchor which ensued : and the ground of my penetrated the side of the barge, making a hole judgment is shortly this, that assuming that through which the water entered and damaged there was a breach of the rule and culpable the cargo of tea. neglect at the time, yet the consequences of that neglect could have been avoided by ordinary care on the part of the Margaret. Instead of exhibiting ordinary care and prudence those in charge of that vessel adopted a reckless course of navigation which is described so well in the opinions of some of the judges of the Court below that I need say nothing further about it." These observations show clearly enough that the facts on which the decision of the House of Lords proceeded were very different from the facts of the present case, the principal difference, of course, being that one collision took place in the day-time and the other during the night. It is also important to note Lord Watson's remark that if the conduct of the Clun Sinclair had been such as to throw the Margaret into
In this case we have no doubt that the barge difficulties and make it doubtful what course was negligently navigated, but it appears to me she ought to pursue, he could hardly have that we must consider what the form of the excused the Clan Sinclair from contribution action is, and how the damage was caused. to the collision. In the present case The action is by the owner of the barge, who I have already expressed the opinion that says, 'your auchor was in an improper place, the Powan was misled and thrown into and by its being so improperly placed my barge difficulties by the conduct of the Kwanglee.
came into contact with it. It made a hole in This case was followed in the Monte Rosa, my barge and did a great deal of damage.' [1893] P. 23, which also arose under the Thames That is the cause of action. The damage was rules of navigation. In that case a collision done immediately by the contact of the impro- occurred in daylight in the River Thames be-perly placed anchor with the barge. Is it a tween the tug Contest and the steamship Moute conclusive answer to say, 'True it is I had my Rosa. The Moute Rosa was proceeding up the anchor improperly placed; true it is it came Thames in charge of a duly licensed pilot by into contact with your barge; and true it is that compulsion of law. By his order, she was carry-
if the anchor had not been there no damage ing her anchor with the shackle at the hawse- would have been done. But you are the person pipe, instead of stock awash, as the rules re-
who led to the wrong, because if your barge had quired. The tug had been engaged for the not been improperly navigated the collision
I could see these lights as purpose of taking the Monte Rosa into dock. would not have happened, and the damage would Those on board of her were aware of the manner not have occurred; and therefore it was you I came to the steamer from the East in which the anchor of the Monte Rosa was who caused the damage ? It appears to me side. Coming along the Praya I noticed the
that that plea cannot be sustained. The true port lights about 200 yards off. At that dis plea would be to say, 'True, it is my négli. 'lance I could see all the hull of the steamer
carried. The tug was preceding the Monte Bosa up the river and, on arriving at a certain
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Let us then apply the principles explained in these cases to the case now under consideration. What is the result of that application? Is it true that, although the collision between the Kwanglee and the Powan would not have oc- curred without the negligence of the Kwanglee, yet the Powan could with ordinary care have avoided it? I cannot think it to be so. For this doctrine necessarily implies, in my opinion, that the vessel which could, with ordinary care, notwithstanding the negligence of the other vessel, have avoided the collision, has become aware, or has at any rate had the means of be- coming aware, of that negligence and has had a reasonable opportunity of counteracting it, but has failed to exercise that opportunity. This point seems to be clearly brought out in the cases of Cayzer v. Carron Company supra and the Monte Rosa supra. What are the facts here with reference to this point? When did those on board the Powan discover the wrong position of the stern of the Kwangles; what opportunity did they have of counteracting On appeal, the Court of Appeal reversed this the negligence involved in that position; and decision, holding that both vessels were to what use did they make of that opportunity? It blame, and that the owners of the E Wo were en- is not quite clear at what distance those on titled to half the damage sustained. The follow-board of the Powan first made out the anchor ifg judgment was delivered by James, L.J.,
The owners of the Margaret put forward, in their statement of defence, the same defence which succeeded in the case of the Monte Rosa, pamely, that those on board the E We might, by the exercise of ordinary and reasonable care and skill, have avoided the collision.
Sir R. Phillimore expressed his opinion that the collision was caused by the careless naviga- tion of the barge, he pronounced her alone to blame for the collision, and he dismissed the action, with costs.
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light and the 'tween deck lights of the Kwanglee, but it would seem to have been somewhere between 300 feet and 1,200 feet. The master and the second officer of the Powan state that they did not make out the unlighted after-part of the Kwanglee until the Powan was about 150 This is borne or 160 feet distant from her. out by Captain Cannan, who says that, when coming in in the Kwonghoi that night, he first made out the Kwangles at about 200 feet distance, including her steru, which he described as perfectly dark." The evidence for the Respondents on these points may be compared with that of Mr. Adair, the chief engineer of the Kwanglee, who was called on behalf of the Appellants. He was on shore that night and returned on board the vessel at 11.15 p.m. He said :-"There was an anchor light on the foremast, a light on the port gangway, and lights showing through the ports on the 'tween decks.
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