VICE-ADMIRALTY COURT.

New Zealand Times, Volume XXX, Issue 4572, 15 November 1875, Page 2

VICE-ADMIRALTY COURT.

Saturday, November 13. (Before the Worshipful James Prendergast; Esquire, Judge.) IN THE MATTER OF THE SCHOONER YOUNG DICK. The Court sat to hear argument on this matter. Mr. Allan, who appeared on behalf of the pursuer, Charles Chalkier Beare, master of the Jane Spiers, submitted that upon the evidence given, which proved that the schooner had had not observed the regulations, the decree sought for against the Young Dick must be given. He referred to the case of the American (43 L. J., Ad. cases 25), to show that a vessel close-hauled on the port tack must give way to one close-hauled on the starboard tack,, and that the vessel close-hauled on the starboard tack is entitled to keep her course to the last moment, and pointed out that it had been held in this case to be negligence on the part of the vessel on the port tack not to have kept a good lookout, and thus failing to see the other vessel earlier. The cases of the Traveller (2 William Kobinson Pep.) and others were also cited to the same effect. The case of the Livingstone (1 Swabey, 519), and Colla (1 Swabey, 465) were also quoted to show that any negligence in non-observance of the Admiralty regulations as. to lights would render a vessel infringing them liable to damages; and the evidence of the captain and mate of the Young Dick was cited to show that the Young Dick had been taken to sea without proper light; and that again, contrary to the regulations and all sensible seamanship, one of the makeshift lights was taken down from its proper place, even at the time collision was imminent. The evidence of the captain and inate and lookout man also showed conclusively that a proper lookout had not beenkept. The night was clear, and the Pencarrow light could be distinctly seen; and, therefore, if a proper lookout had been kept, the Jane Spiers must have been seen earlier; and having been seen the Young Dick’s duty was to keep away, and thus avoid any chance of an accident. There could not be a doubt that the collision was solely owing to the misconduct of the Young Dick. One of the witnesses very properly put the matter when he said “I would not have got in such a position”;, and that, he (Mr. Allan) submitted, was the proper way for the Court to look at the matter. Ought the Young Dick to have got into such close contiguity (as was admitted she was in) to the Jane Spiers ? If she through neglect placed herself in that position, was she not responsible for all that occurred afterwards ? It had been suggested that the Jane Spiers had done wrong in porting her helm. She had done that in endeavoring to avoid a collision, and supposing for a moment, though he did not admit it, she had not acted in the most correct manner, could that disentitle her to damages, seeing that the Young Dick had through neglect forced that course upon her ? He submitted it could not. But the Young Dick could have been got out of the way if she had been handled properly. At four and a half cables there was plenty of room. Even taking, the distance she first saw the Jane Spiers away to be correct, viz., two and a half cables, then according to the deliberately given evidence of the most experienced captains in Wellington, there was plenty of time for the Young Dick to have gone away and avoided the collision ; but, instead of doing this, she kept her course and dropped her headsails, and thus according to the evidence of the eight captains, caused the collision. According to the same evidence the Jane Spiers did right in keeping her course; porting her helm was good seamanship, and she had a right to expect that the other vessel would give way, and that, further, when the captain of the Jane Spiers found that the infraction of the rules by the Young Dick had rendered collision imminent, backing -his mainsails was the best and most prudent course which could be adopted. The learned counsel quoted largely from the evidence, and submitted that inasmuch as the vessel had carried no lights, or at anyrate improper lights, had kept an insufficiently good look-out, and. had broken the rules of the road when the position was realised, collision was solely attributable to the laches of the Young Dick, and that the Court would grant the decree as. prayed, and order that the Young Dick should pay damages and costs. Mr Travers, who appeared on behalf of themaster of the Young Dick, said his learned friend in this case sought to rec iver damages by reason of a collision which had taken place between the two ships, and in order to establish his right to recover he must show that his vessel (the Jane Spiers) was entirely free from blame, and that the collision was entirely owing to the fault of the Young Dick; because, if the Court came to the conclusion that the Jane Spiers was in any degree to blame—in any degree contributed to the collision—then, i»asmuch as the rules laid down in a variety of cases, established this proposition, that where both vessels were to blame the damages and costs were to be divided between the parties, the Court could not grant the degree. That rule was laid down in many cases in the Privy Council, and would be found particularly in the case of the Hibernian 31 L. Times, N. S. (February last.) He then proceeded to call attention to the evidence as it bore upon the case for the defendant. They had never contended they were free from blame. At once they admitted that there was sufficient evidence to justify the Court in assuming the Young Dick had contributed to the collision, and that she was in fault in connection with the collision, because they had been unable to show anything that would exempt them from the strict operation of the regulations in regard to lights ; but while they did not contend that the collision was brought about entirely by the conduct of the Jane Spiers, he believed he would be able to show that the Jane Spiers was sufficiently in fault to justify the Court in dismissing the claim as against the Young Dick, and in charging both vessels with the damages —dividing the costs and damages between both vessels.

The Judge : You contend I ought to dismiss the suit if I find there was negligence on the part of the Jane Spiers, but direct that the damages caused by the collision to both sides should be divided between both parties '! Mr Travers : Yes. The Judge : So that really the pursuer may be a loser in taking proceedings in this case ? Mr. Travers : Ho takes proceedings at that risk. The pursuer had to show that all the fault was on the other side, and if he failed in that and it was shown that blame was attributable to him, then the Court might diride the total damages as it thought fit, although he was pursuer in the suit. It might be within the recollection of His Honor that on the oocadon of the hearing, a number of what were termed on both sides skilled witnesses were brought forward, and that there was a very great deal of conflicting testimony given respecting the relative positions of the vessels when first sighted. Diagrams were drawn, and upon these the relative positions of the vessels were laid down, in the manner mentioned by each side ; and it was a somewhat remarkable fact, that there was not one of all the skilled witnesses who were called in support of the plaintiff’s case, as well its those called against him,, but came to this conclusion, that if the testimony given by Captain Beare and his witnesses were true, collision was absolutely impossible. At all events, that if the positions given by the witnesses for the plaintiff were correct,, then it was clear that if the vessels had kept on their respective courses without any attention whatsoever, collision would have been absolutely impossible. They came to the conclusion, moreover, that even if the vessels had altered their course in the manner indicated by the Jane Spiers, the one porting and the other starboarding its helm, collision would have been impossible in the manner in which it took place ; and, looking at the relative positions of the vessels, and taking the relative rates of speed as given, and considering the other circumstances deposed to, they found it impossible to say in what way the collision could have taken place at all. Take the positions of the vessels. According to the Jane Spiers,, when the other vessel was first seen, she (the Young Dick) was four or five points on the lee bow of the Jane Spiers. Assuming that to be so, then the Young Dick would be steering stem on as it were, square, at a right.

angle to the course of the other ship. -A vessel four points on the lee bow steering in the manner indicated would in such a line as to form a right angle to the line of the ship from which she was seen. Tf she was five points on the lee bow she would be coining in a line at right angles, or almost so, with the line of the other vessel, and the vessel from which she 'was seen would inevitably have crossed her bows. That w*as a mere mathematical question. If a vessel was five points on the lee bow of another v essel, at a distance of four and a half cables away, one on the port tack and the other on the starboard tack, the wind N.N.W., the one goin<* westerly and the other N.E., both close hauled, the vessel to the windward, which, in this case, was the Jane Spiers, must have actually crossed the bows of the one to the leward, the Young Dick. There would under these circumstances have been no necessity for the slightest change of course, for by each vessel keeping its course collision would be a physical impossibility i the Young Dick must have passed considerably astern of the other vessel. Every one of the expert witnesses for plaintiff had at first said all the Jane Spiers had done was advisable, and all that the Young Dick had done was erroneous, but when brought to the test of a diagram exhibiting clearly the relative positions of the two vessels as stated by Captain Beare, one and all came to the conclusion that the collision was absolutely impossible under the circumstances, and that the positions of-the vessels must have been something entirely different from that which was stated by Captain Beare. That was clear beyond a doubt. There was no difficulty in putting the positions of the vessels on paper ; and then taking the relative rates of speed, collision became a mathematical impossibility. This showed how little reliance could be placed upon the evidence of Captain Beare in regard to the positions of the vessels when first seen; and he also submitted that it proved that these positions had been put down by Captain Beare at random, imagining that no examinations as to their correctness would be made, and basing his whole case upon the rwound that the fact that defendant had not Sis proper lights would be quite sufficient to show that the cause of collision was with the Young Dick. He (Mr. Travers) was sure that when his Honor came to analyse the evidence he would find that the testimony of Captain Beare and those who supported him was entirely untrustworthy, in so far as it related to the relative positions of the vessels at the time preceding the collision ; and this would lead him to the belief that if there was a bad look-out on the Young Dick, there was an exceedingly bad look-out on the Jane Spiers. There was one little point in connection with this part of the case to which he wished to draw special attention. Captain Beare, in his evidence, had said that when the other vessel was reported by the man on the look-out, he (Captain Beare) was aft, but he walked forward to the forecastle for the purpose of looking at the stranger; but if his Honor would look at the diagram he would see that a vessel being in the position Captain Beare alleged the vessel to have been in, could have been seen much better from the poop where the captain was than from the forecastle, to which he went to see her. From the forecastle he would have to turn round and look towards the stem of his own vessel. If she was five points on his lee bow she would be practically astern, and would be more easily seen from the stem of bis vessel. Taking this to be a fact, that he could not see the vessel from the stem, he (Mr. Travers) submitted that the position in which Captain Beare attempted to place hfs vessel was not based upon facts. It was more consonant with facts that the Jane Spiers was four or five points on the lee bow of the Young Dick, under which circumstances the Jane Spiers would have seen the Young Dick one or two points on the starboard bow. The people on board the Young Dick said when they first saw the other vessel, she was bearing right down upon them, being four or five points on their lee bow, and this to a certain extent was confirmed by the people on the Jane Spiers, for they said they saw the other vessel right ahead ; but then the captain said they struck her very nearly square on the starboard side—an occurrence which, supposing the other statements of the captain to be correct, could not have taken place. Captain Johnston had been asked “How could thebarque strike the schooner in the forerigging if the barque was to the windward of the schooner ? Observe their relative speed and distances ? Witness, after looking at the diagram, and pointing out possible answers to the question, said, I cannot explain it.” Again, Captain Johnston had drawn a diagram of the positions of the two vessels, as given by the captain of the Jane Spiers, and then had said there must be something wrong about the positions of the vessels as given for them to have come into collision. Booking at the statement of the lookout-man, that the other vessel was two and a half points on the lee bow, it might be that if the vessels had kept their respective courses, collision would have been possible ; but the order was given to port, which would have taken them right away one from the other. Whether the captain was right, or the lookout-man was right, the collision could not be rationally accounted for, because, whether the Young Dick was five points away, or two and a half points away she would, to have caused the collision trader the circumstances, have had to go a further distance than the Jane Spiers, though the Jane Spiers was travelling at a rate of four and a half knots, and the Young Dick only two and a half knots. He submitted that the Jane Spiers must have been upon the lee bow of the Young Dick when the vessels first collided each other, and that the vessels were uncommonly close to each other when first seen—in fact, to use a common phrase, “right on top of one another,” and were unable to take any effectual method to get out of the way of one another. As far as the evidence in respect to time went, no reliance could be placed upon that, for there were so many difficulties in the way. He suspected that the true solution of the matter was that the two vessels were snug for the night, no lookout being kept, and when they found themselves in trouble there was no time for either to take the steps which ought to have been taken. If the Jane Spiers was on the lee bow of the schooner it was pretty clear there was no necessity for an alteration in her course, for she had crossed her bows, and porting her helm was likely to bring about a collision. He cited the case of the Cleadon, 14 Moore's, P.C., Pvep. 92, remarking in passing that keeping a course was keeping on in the exact direction a vessel was going, and that keeping close hauled was not keeping a course. He also cited the case of the Independence, Ibid 118,119, Eclipse andSaxonia, 15 P.C.,Eep.203. He did not deny that there had been negligence on the part of the Young Dick in respect to light, but contented that it had not been proved that the collision had been owing solely to the action of the Young Dick. However on the authority of the ruling in the case of the North American, 12 P. G., Hep., the Court must be guided by the facts actually before it, and if the cause of collision was not shown the Court could not speculate as to the cause. The Jane Spiers had not staid by the Youn" Dick after the collision to see if assistance were wanted, and he contended that on that ground alone plaintiff was disentitled to recover. —Germania (21 B, Times, N. S., 44.) He asked that damages and costs might be divided. , Mr. Allan replied at some little length, and said his friend had made one important admission, viz., that the vessels were on top of one another before seen. Accepting this to be a fact, then, according to the cases cited, the decision must be against the Young Dick, for it was laid down that the vessel on the starboard tack must keep her course to the last, and that it was the duty of the vessel on the port tack to look out for, and keep out of the way of, vessels coming on the starboard tack. His Honor the Chief Justice said he would endeavor to give his judgment at half-past ten on Monday. The Court then adjourned.