COLLISION CASE.

Westport Times, Volume V, Issue 896, 5 December 1871, Page 2

COLLISION CASE.

The action brought by Kilgour and others v. N. Edwards and Co., owners of the p.s. Charles Edward, came on for hearing at the Supreme Court, Nelson, on Wednesday last. It was a case of collision on the Buller har on the Bth of September last. The following were the special jurors empannelled : —A. J. Eichmond (foreman), D. Isaacs, W. Wells, H. Baly, C. Muutz, H. Lewis, T. Newton, B. P. Baiu, J. Lewis, A. Warren, F. H. Blundell, H. Goulstone. The plaintiffs' declaration, after narrating the circumstances, and claiming £IOOO damages, also set forth special damages, as follows :

From this sum £6 15s was- deducted by the plaintiffs in Court, as being professional coats, which they relinquished. There were six legal gentlemen employed in the case, Mr Button, of Hokitika, and Mr Pitt and Mr 11. Adams for plaintiffs ; and Mr Conolly, Mr Acton. Adams, and Mr William Adams, for defendants. Mr Pitt read the declaration and pleadings. Mr Button, narrated the case for the plaintiffs. Joseph Kilgour,of Greymouth ; George Perotti, of Greymoutk ; Abraham Palmer, of Nelson, master, and John Scott, engineer of the Murray, were the registered owners of the steamer. On the Bth Sept. last, the steamer Kennedy left Westport about 20 minutes or 15 minutes before four o'clock in the morning, the Murray left a little nearer four o'clock, and the Charles Edward about 10 minutes after the Murray ; the vessels were treading on the heels of each other. The Kennedy being to the south of the proper channel, struck on the bar and stuck a short time. The Murray also got aground in mid-channel. The Cha7'les Edward followed, about 80 or 100 yards to the north of the Murray, and she got aground. The Murray was the smallest of three vessels, but drew the most water; the Charles Edward, although the largest, drew the least. The latter after striking on the shingle, which composed the bar put her engines full speed astern, and succeeded in getting off first. In doing so her bow canted round, and she had ai-quired so much stern way that not being stopped in time she ran into the Murray, and caused the damage. The question was, —did the Charles Edward, in getting off the bar, use such care, and diligence, and caution, and skill, as she should have used, and so have prevented her running into the Murray 1 There were simply two points the jury would have to decide, first, whether she ought to have been there at all ; and, secondly, being there, whether she exercised proper diligence in avoiding a collision and having due regard to her neighbor's rights. There was another point raised in the pleadings. It was pleaded by defendants that our contributory negligence caused the accident. He could not see from the evidence how such a plea could be snstained ; but if it could, the law is that if our negligence caused the accident, the verdict would be for the defendants ; but if, notwithstanding our negligence, it could by proper care on the part of the defendants have been avoided, then they are not relieved from responsibility if they failed to exercise that proper care. The learned gentleman cited a well-known case about a hobbled donkey on the highway being run against by the driver of a phston. The donkey being hobbled could not get out of tho way, and was therefore deemed a fair object for the defendant's careless driving, but the law held that the fact of the donkey being in the way did not relieve the defendant from the effect of his carelessness, as it was shown he could, by ordinary care have avoided running against tho donkey. Mr Button then quoted from the harbor regulations to show that no steamer shall attempt to cross

a bar while another vessel, or while a steamer having a vessel in tow is crossing the bar. He maintained that a steamer grounded on tho bar as the Murray was, was in tho same position as an ordinary sailing vessel, or a steamer with a vessel in tow crossing it, and that should have prevented the Charles Edward from going out. The Kennedy and the Murray were both on the bar, and that being so, the Charles Edward had no right to go out. The Judge: When was it high water ? Mr Button : Aout ten to twenty minutes past four. The Judge: What was the draught of the vessel ? Mr Button : I can only state the comparative draught. The Murray had the largest draught of the three, and the Charles Edward the least. It may be said that, seeing the Kennedy was on the bar, the Murray had no right to go out ; but the fact is that the Kennedy was so far out of the way, and Captain Palmer was so far away from the Kennedy; that it was perfectly safe, as the event proved. Besides, even granting that it way an improper thing for Caplaitn Palmer to take the bar while the Kennedy was on it, ii was doubly improper for the Charles Edward to take it when the other steamers were on the bar. Mr Button then called evidence, whieh has been fully reported in the enquiry which took place in September last before the Collector of Customs, Westport. On the second day the defendant's case was gone into. Mr Conolly opened the case for the defence It was, he said, a case of some marked importance, and considerable loss must fall on some person or other by reason of the damages sustained, aud the delay thereby arising, besides subsequent expenses But the mere pecuniary question was by far the least important to try, as the loss of a few hundred pounds was of small moment eoaipared to the question whether a master of a steamer, to whose judgment so much was entrusted, was guilty of negligence. It was a pity that tbe case was circumscribed by matters of accounting ; and he should have preferred to have taken the case on a broader basis, and left tbe accounting to be otherwise arranged. The case was that of a captain who had been a long time employed, and it may be a question of his further employment or otherwise, because of bis being in a position wherein he thowght it would be shown he could hardly have acted differently from what he did. He gathered from Mr Button's opening address that he charged tbe defendants with negligence on two points ; first, with taking the bar, and, secondly, having done so, grounded, that he was wrong in getting off in the time and manner he did. Now, first, as to attempting to take the bar, he thought there was very little, if indeed anything at all, shown against defendant on that head. Tudeed, he considered he was completely exonerated. The Charles Edward was a vessel of very light draught of water. The Murray had a much heavier draught; yet the harbourmaster let Iter go almost immediately after the Kennedy, although he knew tho state of the bar was bad because of the tide being at the lowest neap ; aud although Captain Palmer told him it would be a toe and heel business in crossing, and the harbour master also let the Charles Edward go out shortlv after her, knowing that the Murray would bump as he had stated; and he also said that he made it a practice when there was any danger to caution the master, and this he did not think it necessary to do so on this occasion. Mr Conolly then pointed out that the bar was continually shitting, that the lights had also to be shifted, aud wore frequently disregarded, because shipmasters knew the run of the channel to be different from that indicated by the lights, and that the lights had been shifted almost immediately after this collision. He said, too, that he would show that instead of the Charles Edward having no business to attempt the bar when she .saw the Murray on it. there was really no alternative, and that she could not go back. Referring to Mr Palmer's evidence (which he said was very fair, making allowance for the proneness of human nature always to take a favourable view of its own case), he pointed out that Mr Palmer had admitted that the Charles had drifted round, but that she did not swing her full length, but as if she were aground about the middle, as on a pivot. Conway, however, said she completed a full half circle, showing that she was aground at the bow, which be should bring evidence to show was the fact. Mr Con. way further said she seemed afloat, while Mr Palmer said she was aground about the middle. He would show that, in the circumstances, no more diligence to avoid accident could have been employed than was employed, and went into the question of " inevitable accident," and the legal meaning of the phrase as laid down by Dr. Lushington. After a few other observations, the learned gentlemen said he would defer further remarks until he addressed the jury on the whole case. He called

Thomas TTolrr.os, roaster of the p.s. Gharl&s Edward; Charles Popo, second officer ; W iUon, purser ; Darling, engineer; Whitwell, master of the Kennedy; Creagh, chief officer ; and Jacobsen, signalman at Westport. The evidence of the above has already appeared in print in con-

nection with the enquiry at Westport. The addresses of the counsel on both sides occupied the time of the Court until one o'clock on Friday. At half-past one the Judge commenced his summing up, which lasted until a quarter to four, when the jury retired, and afer a short absence returned with tf verdict for the plaintiffs fo* £642.

Repairs, painting, &c. 174- 19 a 9 Seven days' demurrage at Westport, at £L5 per diem 105 0 0 Twenty-seven days' demurrage at Nelson 405 0 0 Loss of contract for conveyance of mail by San Francisco to West Coast ports 50 0 0 Loss of contract terminated by the Government by reason of demurrage ... 50 0 0 Surveyors for survey reports, £c. 8 8 0 )793 7 9