VICE ADMIRALTY COURT.

New Zealand Times, Volume XXXII, Issue 5130, 1 September 1877, Page 2

VICE ADMIRALTY COURT.

Friday, August 31. the taupo and eli whitney case judgment. • His Honor Judge Richmond gave judgment in the above case as follows: In this case it has been confessed on the part of the plaintiff, that if the hulk Eli Whitney had had her proper light burning, the collision would not, in all probability, have taken place. In this particular the hulk is admitted to have been in fault, and legally to blame. But, at the same time, the plaintiff insists upon it, as equally true, that the collisiOß would not have taken place if the Taupo had been moved from the wharf with reasonable care and skill; and upon this state of facts', which he asserts to be established, he claims that the Taupo shall be condemned in a moiety of the damage, according to the rule of the Admiralty in cases where both vessels are in fault. On the other hand,- the owners of the Taupo contend that the collision was, so far ' as their part in it ia concerned, an inevitable accident. Several points have been made in the defendants' argument on the-question of fact. The first which I shall notice is, that the hulk was moored in an improper position. That is I think quite disposed of by the evidence of the Harbor-Master, Captain Holliday. The hulk lay at Government moorings, with tlie approval of the Harbor-Master, and for the general convenience of the port, more especially of the steamers frequenting it. The Harbor-Master is empowered- by the harbor regulations to appoint the places where vessels shall anchor and moor. The case of the William Lindsay, Law Reports, 5 P.C., 338, is an authority on this point for the plaintiff, if authority is wanted. In that case an accident occurred through a defect in the mooring, the shackle-band of the buoy giving way; but the principle laid down in the judgment is, that a vessel is not to blame for mooring at what is treated by the port authority as a safe and sufficient mooring place. But the main defence rests on the admitted facts, that the hulk was without a light at the time when the Taupo left the wharf, that is a little after midnight, and that the night was very dark and tempestuous, the wind blowing hard from the north-west, with frequent strong squalls and rain. Neither the master, nor the first mate of the Taupo, observed that the hulk was ,at the moorings until it was too late to prevent a collision ; and it is contended that this under the circumstances was excusable. On the plaintiff's part it is answered, that if the Taupo's people did not see the hulit, they ought to have seen her, as she was visible from the wharf ; and that seeing her or not, they knew, and ought to have remembered, that she was at her accustomed moorings. Now from the plan, which was put in by the plaintiff, it appears that the distance of the hulk, as she rode that night, head to wind, from the northern end of the outer T, was a little over 700 ft. She lay about parallel with the wharf—that is with the wharfhead or outer T, sheering however a good deal in the squalls. The Taupo had come into port that morning, and was lying, before she started, alongside of the northern end or arm of the outer T, and on the eastern sr outer side of it, with her head to the northward. About midway between the Eli Whitney and the steamer lay a small schooner, the Clio, which had dragged her anchor, and so got into that position, impeding the fairway out to the northward between the wharf and the hulk. In getting away from, the wharf the Taupo first let go her head-line, and swung by her stern until her bow was clear of the Clio's stem ; then let go her stern-line -and started her engines, first easy ahead, then half-speed. By the time her fore rigging was abreast of the Clio's stern—l take the evidence of the Taupo's mate, McArthur—he saw the hulk from the forecastle, where he was stationed. "I sung out," he says, "hulk ahead;. full speed astern." There was no delay in reversing the engines; but it was too late. The hulk was struck

amidships, and sunk in about twenty minutes as nearly as can be ascertained. The laupo, from the time of starting, had her helm a little astarboard. ■ It is admitted that altering the .helm when tho hulk was seen would have made no difference. From this statement it appears that tho master of the Taupo meant .to take his vessel right over the spot where the hulk was riding. He declares, I have no doubt quite truly, that he never attempted to pass between the Clio and the hulk—a manoeuvre which he altogether condemns. He also says, and herein he is opposed to the opinion of Captain Holliday, that it would not have been proper to pass between the Clio anl the wharf. The reason he gives is probably a sufficient one, namely, the risk he would have run of picking up the Clio's chain cable with his propeller. He steered the course he did, simply in,the belief that there was nothing at the moorings, and admits that it would have been perfectly easy to pass astern and to leeward of the hulk. Therefore all those portions of the nautical .evidence which relate to the possibility and propriety of passing between the Clio and the Eli Whitney, ahead of the latter, may be discarded. Anyone would have supposed from the course taken in the examination of the masters of the English ships Leicester, Avalanche, and Adamant, that _the defence turned upon this point. No preliminary acts have been filed, so it is not possible to say what may have been originally intended. But it is. at all events clear that the pleaded defence, and the evidence of Captain Carey, are wholly inconsistent with such a case on the part, of the defendants. Everything turns upon the alleged invisibility of the hulk. Then the question is, could the Taupo's people by the proper use of their eyesight (and the use of the eyes at night is a part, I apprehend, of nautical skill), could they have seen the hulk ? At the time the Taupo let go her stern line nothing intervened between her and the Eli Whitney, and the distance from the steamer's bridge, where Captain Carey stood, was not more than 200 yards. The night, I have said, was very dark, and during the squalls of rain especially it is likely that the hulk would not be discernible even at that Bhort distance. Chambers, the master of the Clio, states that there was a heavy squall just as the steamer passed under the stern of his Bchooner. I mnst, however, here observe that the Taupo's people had plenty of opportunity before starting to look about and see what shipping and craft were lying off the wharf ; nor could there have been any necessity for casting off in the very midst of a blinding rain squall, if indeed this was done. Of course every sailor may be caught outside in such weather, and must then do the best he can ; but those who voluntarily underbake the risk of navigating the waters of a port in the midgt of storm and darkness come thereby under* the obligation to-use an extra degree of caution. Reasonable care means care proportioned to the risk and the necessity, and therefore sometimes means uncommon care. In proportion to the greatness of the necessity should be the care and vigilance employed—the Mellona, B. Wm. Rob. 13. The very recent case of the Birkenhead ferry-boat Lancashire (Law Reports 4 Ad. andEc. 198) is instructive on this head. Shipowners who choose, in the pursuit of their traffic, to run an extra risk, as by starting in a dense fog, will not be exempted by the use of mere ordinary care from paying -for the- damage which they may occasion to others. But the evidence has satisfied me that the hulk was visible both immediately before and after the collision to any person of ordinary eyesight who, at a distance of from 200 to 250 yards, intently looked in the direction where she was lying. The evidence of the master of the English ship Leicester is to thi3 effect. The master of the Avalanche, who was on the wharf at the time in company with the witness first mentioned, was also ;able to make out an object, which he took to be the hulk, just after the collision. A third person, a landsman, Mr. Gair, who was with these two master mariners, could just see the hull of the Eli Whitney. Swede, master of the Reliance, schooner, then lying at the breastwork, and at a distance of from 300 to 400 yards, saw the hulk just at the time the" Taupo was leav•ing, and remarked to his mate that she had no light. Her hull, he says, was visible, but her mast was not. Ferguson, shipkeeper-of the coal hulk India, from on board his vessel at 400 yards distance to the southward, saw the Eli Whitney about the same time. Lastly, the witness Charles Webb, a -passenger, who went on board the Taupo ju3t as they were - casting off, saw both the hulk and Clio from the Taupo's poop. In. addition to thi3 testimony, it appears that the~iriaster of the Taupo at the time of starting could see, though indistinctly, the red light on S6me3 Island, distant more than four mile 3 from the wharf,; and bearing right over the hulk. s , I am further satisfied from the evidence that the hulk was at her accustomed mooring place, which wa3 thoroughly well known to all persons frequenting the port ; that she was lying there at sunset ; and that her lantern wa3 burning at 9 o'clock, when the ship-keeper, Davey, went to bed. Under all these circumstances, I am of opinion that the collision cannot be regarded as, on the part of the Taupo, an inevitable accident. Had the damage been done by a vessel entering the port, and groping her way to a' berth that night, the case might have heen different ; but here we have a steamer leaving the wharf, and running straight into her next neighbor, or almost her next neighbor, who had been lying there in broad daylight, and was as well known an object as ' Somes Island. Captain Carey's general character for care, skill, and sobriety is tinimpeached in the case, and I dare to say, unimpeachable. It was his great misfortune that eyesight and memory alike failed him on this occasion for a few moments ; yet long enough to cause a melancholy loss oi life and the destruction of property to a large amount. Many of the decisions of the Privy Council and Court of Admiralty, and also of the Courts of Common Law, in which a steamer having run down a vessel without lights has been held not liable to pay damages,' were cited for the ■ defendant ■ in the course of his. argument. Before any of these can be' applied as an authority for the decision o£ the present case, it is necessary to inquire not only whether the circumstances •were similar, but also in what Court, and under what state of the law, the steamer was dismissed. In several of these cases, it was held that the steamer was-partly in fault, yet in consequence of the suit being in a Common Law Court, or in consequence of statutory provisions then in force, but now repealed, the plaintiff was debarred from recovering. In a few, the' steamer was clearly absolved from blame. These latter cases alone can be in point. At common law, contributory negligence on the part of the. plaintiff bars his recovery, notwithstanding that there is blame on the other side. This explains the case of Dowell v. the General Steam Navigation Company (5 Ell. and B.,l9s),[where the steamer was acquitted, although the jury found that both vessels were in fault, and inclined to think that the preponderance of- blame was with the steamer. Many other cases were decided in . the same way in the Court of Admiralty and ' Privy Council, whilst the 28th section of the 14 and 15 Vic, c. 79, and the 298th section of the Merchant Shipping Act, 1854, were in force. Under these statutory provisions ' ne glect of the steering rules, or Admiralty Regulations respecting lights, barred tho vessel bo in fault; from recovering any compensation, if such neglect had contributed to the colliBion, notwithstanding that the other vesssel wa3 in fault also. These enactments in effect confirmed the Common Law principle as to contributory negligence in cases to which they applied, and excluded the principle followed in the Admiralty of dividing the damage where both vessels are in fault. Thus, in the Juliana (Swabey ad., November, 1854,) the 298th section of the. Merchant Shipping Aet dispensed •with the necessity of deciding whether the sailing vessel which ran down a trawler showing no light was or was not partially in fault. In the Urania (id. 253) the same enactment barred the complainant, and tho steamer was dismissed although held to be partly in fault. The City of London (id. 248, 300) was decided under the same section. In the Court of Admiralty, the Trinity Masters were silent as to whether any blame attached to the steamer, it being clear that the smack had broken the • regulations, and that this was a contributory

cause of the disaster.- In the Privy Council, the Naval Assessors of their Lordships stated that thev were not satisfied that the steamer was at all to blame, but gave no positive opinion. It was needless to come to any conclusion on the subject, because, as the law then stood, the appeal must fail if the neglect of the smack had in any degree contributed to tne accident. It was useless to show that the steamer was to blame, unless she was wholly and solely to blame. The Mangerton (Swabey 120) is one of the few cases ■in which the steamer was clearly absolved from blame. But the circumstances have no similarity to the present case. Ihe repeal of section 298 by the Merchant Shipping Act Amendment Act 1862, and the substitution of section'29 of that Act, was restore the old rule of the Admiralty. (See the City of Carlisle, Browning and Lushington 364.) Since the latter statute-came into force cases are plentiful, in which both vessels have been in fault and the damage has been divided, notwithstanding the fault on either side, or on both sides, has been an infringement of the statutory regulations. See for example the "Spring" Law Reports 1 Ad. and Ecc. 99, the Agra and Elizabeth Jenkins id. 1 P.O. 501, the Frankland and Kestrel %d. 4 P.O. 529 ; see also the Magnet id. 4 Ad. and Ecc. 417, under the Act of 1873. On the other hand there have occurred •cases in which the absence of lights has been held to be the sole cause of the disaster. Thus in the "Penham" Law Reports, 3 P.O. 212, a steamer running down a sailing ship without lights was held blameless; but the circumstances, as in the case of the Mangerton, were entirely different from those of the present case. The vessels were at sea, audunder way; the steamer was going at a very moderate pace, and seeing no lights on board the brig, was led to believe she was moving nearly in the same direction as herself. The case may be contrasted with the Aleppo (35 Law Journal Admiralty 9), where the steamer was held solely to blame, although the vessel she ran down was without a light; and the Bougainville, where the steamer was condemned in the whole damage, though it was doubtful Whether the IMitsof the sailing vessel were effective. (Law Reports, SP. 0., p. 325, judgment.) Of course the circumstances of cases are infinitely various ; but one may say in general that most collisions occurring at sea are open to very different considerations from a case like the present, where there was no sudden emergency, but full time, and on the whole I must say full opportunity for those in charge of the steamer to ascertain everything necessary to the safe direction of the force under their control. It is not often that one decision upon facts can be an authority for another. I have found no case at all like the' present one. The cases of damage done by ships entering or leaving dock_ (upon which there have been some recent decisions), have more analogy than those of collision at sea ; but I abstain from quoting any of these decisions, because in my opinion this case stands upon its own peculiar circumstances. Having reached the conclusion that j the Taupo was to blame for the collision as well as the hulk, I have still to consider whether anything should prevent me from decreeing, according to, the rule of this jurisdiction, that the damage shall be divided between the owners of the two vessels. The law of England respecting such a default as the 'hulk has confessedly been guilty of is expressed, I presume, in the 17th section of the Merchant Shipping Act, 1873,-36 and 37 Vic. c. 85. That section enacts " If in anyjease of collision it 13 proved to the Court before which the case is tried that any of the regulations for preventing collisions contained in, or made under, the Merchant Shipping Acts 1854 to 1873 has been infringed, the ship by which such regulation has beenanfringed, shall be deemed to be in fault, unless it is shown, to the satisfaction of the Court that the circumstances of the case made' a departure from the regulation necessary." The case of the Magnet, already referred to, shows-that this enactment does not stand in the way of an equal division of damage. But I. do not think Bection 17 applies to the present case, because this collision occurred in one of the harbors of the colony, and the i existing English statutory regulations, namely, those appended to \ her Majesty's-Order in Council of 9th January, 1863, are not in force as regards the internal waters of the colony; (See Merchant Shipping Act Amendment lAct 1862, section 31.) It is true that these very regulations have been made applicable—so far -as they can be applicable—to. the ports and harbors of the colony by sectionlo of the Steam Navigation Act:Amendment Act, 1867:; hut they are m force, it, would seem, by virtue of the colonial Act, and not of the Merchant Shipping Acts, so that the enactment of section 17 does not' apply. Again, it is not clear [ that any one of these regulations exactly j hits the case of this coal hulk. Article 7 is the only one which could apply, and it is not plain that the Eli Whitney could be considered as "at anchor in a roadstead or fairway.'' In the 32nd rule of the Harbor regulations, made under the authority of the Marine Act, 1867, there is an express provision respecting the light to be carried by vessels at anchor or moorings in port. This rule ib to the same effect as article 7 of the Queen's regulations; but is not quite so specific. For the present purpose it is unnecessary to decide by which of these regulations the Eli Whitney was bound, or even whether she was bound otherwise than by general maritime law. She was confessedly in fault for having no light, but whatever law or regulation may govern the case, that fault doe 3 not disentitle her to claim in this Court contribution from the other party whose carelessness conduced to the accident. I therefore condemn the Taupo in one half of the damage. Each party must pay his own. co3ts. The costs of the reference as to damage, if one becomes necessary, will be borne in like manner, unless the Court shall hereafter order to the contrary. ,-: ' . -