IMPORTANT TO SHIPOWNERS.

New Zealand Times, Volume XXXII, Issue 5233, 31 December 1877, Page 3

IMPORTANT TO SHIPOWNERS.

(From the Otago Daily Times, 25th iust.)

The following judgment was delivered by Mr. J. Bathgate in the Resident Magistrate’s Court ye-terciay, in the case of Houghton and another v. McLeod, an action arising out of a collision in the Channel ;

The plaintiffs, the owners of the steamship Wanganui, sue the master of the brigantine Kthel for £45, damages received through collision in Dunedin Harbor at night on Dec. 3, the said collision being alleged to have been the result of the defendants neglecting to have an anchor light. The Harbor Regulations (sec. 32) require that all vessels moored within the port shall exhibit a “ bright light ” from sunset to sunrise. On the night in question the Ethel was moored in the fairway, aud the Wanganui corning up collided with the Ethel, and both vessels were damaged, A cross action has been raised by the defendant against the plaintiffs, concluding for ,£SO damages. An objection has been taken that the plaint discloses no ground of action ; that the alleged neglect being a breach of the Harbor Regulations, for which a penalty is imposed, no other action can lie except one for recovery of the penalty ; and that the master not having been on board at the time of the accident, cannot be prosecuted for any default. (Stevens v. Peacocke, 11, Q. 8., 731; General Steam Navigation Company v. Morrison, 22 L.J., C. P., 178.) It is true that where a statutory right is infringed an action will not lie for the infringement where ttie State provides a specific remedy ; but the imposition of penalties under a statute does not take away the right of a person injured to sue at common law. (Caswell v. Worth, 5 El. and 81., 849.) In the case of collision there is a right of action at common law. In the case of The John and Mary (Swabey, 473), Dr. Lushington said “ It is open to any person who has received damage by a collision to recover at common law.” In the Admiralty Courts there are special rules for fixing the amount of damages. Where both parties contribute to the loss it is divided between them. In a Court of common law every case of collision is decided upon the establithed principles which govern questions of negligence. In the present case the first question is : Was there negligence on the part of the defendant with respect to the anchor light which led to the collision ? I am of opinion that the master of a vessel anchored in the narrow fairway of the Port of Dunedin is under an obligation at common law, to use every reasonable precaution to prevent damage to himself and others by collision during the night. A watch upon deck ought to be kept, and a bright light shown aloft where it can be seen for a suitable distance. There is a difficulty in ascertaining what were theactna! facts on the occasion of the collision, /'light witnesses on board the Wanganui saw no light, while five witnesses on board the Ethel, including MacDonald, who hoisted the light, swore positively to the light being in its proper place and burning brightly. According to the ordinary rule for weighing testimony, more weight must be given to positive and direct evidence that an act was done, than to the testimony of witnesses who say they did not see it done. The night was dark and hazy, and the Wanganui was approaching the jetty rapidly. The crew were engaged in their respective duties, and only two persons were so situated as to have a good liok-out. I am inclined to the belief that there was a light on board the Ethel, but that it was burning dimly. The evidence of the witness King adduced for the plaintiff confirms this view. He passed in his lighter a few minutes before the collision, and after he had passed he saw a light on the Ethel burning dimly. Before coming to a conclusion that the dim light was the cause of the collision, it is necessary to inquire whether the master of the Wanganui used all the care and caution incumbent upon him in the circumstances. In the case of Dowell v. General Steam Navigation Co. (5, El. and 81. 125), Lord Campbell said ;—“ The plaintiff has no remedy if his neglect in any degree contributed to the accident.” The question was put to the jury, “ could the master of the steamer have avoided the collision by ordinary care aud skill ?” The answer given was, “ ’l'he steamer was going at too great a speed on so dark a night, in which respect there was want of caution." In the present case the night was very dark, the tide was flowing, the Wanganui was going at full speed, a'-d the whistle was not sounded. By the Harbor Regulations (section 100) the Wanganui should not have proceeded at more than half speed, and was bound to “ sound the steam whistle constantly.” The precautions prescribed by the Harbor Regulations and the regulations made by her Majesty’s Order in Council, 9th January, 1803, which are in force in the colony, arc no more than common prudence and care would dictate as necessary for safety. Any breach of these was a want of reasonable caution. I am of opinion that the master of the Wanganui, on a dark night, with drizzling rain, was to blame for proceeding at full speed, and for neglecting to sound the whistle. In the case of a collision between a ship in motion and one at anchor,

there is a prima facie case against the ship in motion. The plaintiffs have endeavored to establish that the accident was solely the fault of the Ethel having no light. lam of opinion that there was such a want of proper precaution on the part of the Wanganui as precludes the plaintiffs in the circumstances from recovering damages. Before a ship in motion can recover it must Lave a clear case, free of all doubt and blame. That is not the fact in the present instance. Then, as regards the action at the instance of the master of the Ethel, I a>n of opinion that, as the anchor light was not burning brightly, he did not use every precaution necessary on his partiu the circumstances iu which he was placed. In the case of Vanderblank v. Millar (M. and M., 147), in which the Louisa was sunk fey collision, Lord Tenterden said—“ If there was want of care on both sides the plaintiffs cannot maintain their action.” I have come to the conclusion •that the plaintiffs, for want of due care, connot recover in their respective actions. A nonsuit will be entered in both cases.