ARUMUKHAM et al. v. THE BRITISH INDIA STEAM NAVIGATION COMPANY

022-NLR-NLR-V-01-ARUMUKHAM-et-al.-v.-THE-BRITISH-INDIA-STEAM-NAVIGATION-COMPANY.pdf


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ARUMUKHAM et al. v. THE BRITISH INDIA STEAMNAVIGATION COMPANY.
Re 38. Chanda.
Shipping—Sailing rules—Collision between steamer and sailing vessel—Fault
of sailing vessel—Damages.
A schooner sailing in a direction of north-west by west sighted awhite light on the port bow, which she mistook for the light of theTnticorin lighthouse, and she made towards it. A few minutes after-ward, noticing a red light, she concluded that a steamer was ahead,and put up a white light, porting her helm at the same time, whichnecessarily brought her across the course of the steamer.
The white light exhibited in the sailing vessel was observed in thesteamer for a second or two and disappeared. The steamer held hercourse believing that the sailing vessel was pursuing a course parallel tohers, and that she would keep on in that course. In a few minutes thevessels collided and the schooner sank.
Held, that the schooner was materially in fault, and that if the steamerhad left it to the last moment to take the proper measures for gettingout of the way of the schooner, and had not acted with all thepromptness which might have been expected under the circumstances,she too would have been in i fault and liable to pay one-half of thedamages caused.
But as the schooner did not carry the red and the green lights on herport and starboard sides, but held up a white light with aslittle prominenceas possible, so that the steamer could not ascertain expeditiously whatcourse the sailing vessel was taking, nor could get out of her course indue time, no fault could be attributed to the steamer upon which shecan be made answerable for even half the damages sued for.
T
HIS action was raised before the Vice-Admiralty Court ofthe Island by the owners of a schooner called Arutnukhatn
Sundaram for the purpose of recovering compensation from theBritish India Steam Navigation Company, as owners of the ss.Chanda, for the loss of the schooner aforesaid, through beingsunk after collision with the steamer, in consequence, it wasalleged, of the negligence of the latter.
At the trial Samuel Grenier appeared for plaintiffs.
James van Langenherg (with him R. Morgan), for thedefendants.
After evidence heard, the learned Judge, Sir John BuddPheak, reserved judgment.
On 15th October, 1878, he delivered judgment as follows :—Notwithstanding the difficulty which was experienced at thetrial on Saturday in effecting satisfactory translations of theevidence of the witnesses, I still think that the principal facts ofthe case are very clearly made out—much more so, indeed, thanis usually the case in suits of this character. The foundation of
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the eait itself—namely, the collision between the two vessels andthe Iosb of the Arumukham Sundaram—is beyond all dispute,and both sides pretty well agree in their account of the materialfacts of the occurrence. According to Abbas, the chief witnessfor the plaintiffs, those on board the schooner, about an hour afterchanging watch at midnight, sighted a white light about two milesright ahead of them. At first they took it to be the light of theTuticorin lighthouse, and under this impression for a time theymade towards it. When first discovered it was seen on the portbow. Five or six minutes afterward a red light was seen, andthe witness immediately concluded that there was a steamerahead. Then, according to his account, the course of the steamerwas slightly altered by porting the helm. The red light continuedto be seen on the port side until the collision took place. As soonas (four or five minutes after seeing the red light) Abbas perceivedthat there would be a collision, he called out again. The steamerstruck the schooner nearly stem on, just abaft the main rigging.This witness (as well as all the others) says that as soon as the redlight of the steamer was seen, the schooner put up a white lighton the forestay. He also says that he never saw the hull of thesteamer until he had perceived the red light. According toCunjee Ahamadu Pulle, the man who was at that time at thewheel of the schooner, it was a quarter of an hour after Abbasfirst called out that he saw any light at all. This was a whitelight on the schooner’s port bow. About ten minutes afterwardhe saw a red light in addition to the white light on the port bow.The light remained the whole time on the port bow, only it keptcoming closer and closer. Next he saw the hull of the steamer.This was about ten minutes after he first perceived the red light,and then, he said, he ported his helm with the effect of changingthe course of the schooner about two points, bringing her intoa course heading north-west. At that time the steamer was, byhis reckoning, about 150 fathomB off, and the collision almostimmediately afterwards took place.
Now, if this account be accepted, the course of the schoonermay be thus summarized. She was first sailing in a direction ofnorth-west by west, but on the appearance of the white light, itbeing mistaken for a fixed light on shore, she made for it, perhapBwithout noticing the compass, and on the natural assumptionthat no change was made in the actual course of the schooner.Nevertheless, as the light she aimed at was moving instead ofbeing fixed, the course the steamer was steering naturally changedwith it. The witnesses, however, may be quite honest when theysay that the schooner did not change her course. When they saw
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the red light they were certainly within the red quadrant of thesteamer. Whether the red light was seen in fact on the port bowfirst or on the starboard bow first is comparatively immaterialnnder these circumstances, because by the witnesses' own accountthe schooner was at that time making as straight as she could forthe steamer, and therefore the angle could not have been verygreat one way or the other which the direction of the schooner’scourse was making with that of the steamer. And then theschooner ported her helm, which necessarily, as indeed it wasintended to do, brought her across the course of the steamer ; andat this point it is important to bear in mind that by the accountof plaintiffs’ witnesses the white light was put up.
If we now turn to the evidence which Mr. Emery gives of theoccurrence, we find him saying that he first saw the vessel undersail about two points on the starboard bow, apparently then abouta mile from the steamer. But there was no light. He watched theschooner for two or three minutes from the middle of the star-board side of the bridge, and observed that it did not sensiblychange its position. While he was so observing it, a white lightwas exhibited by the schooner, which after a second or twodisappeared, and with it the schooner also. Mr. Emery tried tomake out the schooner, notwithstanding that the light was gone,with the aid of binoculars, but could not detect it. He was notnear enough to see her actual course, and he inferred that it musthave been approximately parallel with that of the steamer. As amatter of fact, it has been seen that, if the schooner’s ownaccount of the matter be taken, she was then making straight forthe steamer, and so Mr. Emery was not far wrong in the inferencewhich he drew. He assumed that the vessel, whatever she was,and whatever her course might be, would keep on in the coursewhich she then was upon ; and this he had a right to do, becausethe schooner was bound by law, with a certain exception that Imay possibly presently allude to, to keep the course she was on,and to leave it to the steamer to get out of her way. For thispurpose Mr. Emery starboarded his helm, and this also un-doubtedly he had a perfect right to do, provided he succeeded inthat way in avoiding the schooner. But unluckily the assumptionof Mr. Emery was falsified by two circumstances. The first wasthat the inference, that the schooner was pursuing a certaindefinite course not remote from parallelism with his own was ill-founded. She was pursuing a varying course—a course varyingwith his own position, but such in effect as rendered herrelatively fixed for the few moments he was observing her, andtherefore justifying his inference. The second circumstance is
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that at the time Mr. Emery was drawing this inference and actingupon it, the schooner changed her course designedly by portingher helm and going across his bows. Just after this time thelight re-appeared again, and then it was almost immediately underthe steamer’s bows. He ported his helm—the best thing probablyhe coaid do—but it was too late to avoid the collision thatimmediately ensued. The manoeuvre probably had the effect,however, of putting the colliding point further aft than it wouldotherwise have been.
In the view which I have thus taken of the facts—a view inregard to which I have no hesitation at all upon the evidencebefore me—it is plain that the schooner was materially in faultin this matter, and that therefore it follows that at best shecould only recover from the steamer one-half of the damagecaused.
But I further think upon these facts that the steamer was notin fault. In the case of the Velasquez, which is reported inthe Law Reports, 1 Privy Council 494, a question of this kind,almost precisely the same in its circumstances as the questionarising in the present case, was considered and determined. Thematerial parts of the judgment delivered by Sir James Colvile inthat case are as follows :—
This is an appeal on the part of the owners of the Spanish steamer Velasquezagainst the sentence or decree of the High Court of Admiralty, which haspronounced that that vessel was in fault in running down the late barquecalled The Star of Ceylon, and has condemned the appellants and their bail inthe damages proceeded for, and costs of suit.
The conflict of evidence is far less than generally occurs in cases of collision.The undisputed facts of the case are : that about half past seven on theevening of the 11th of October last, the steamer, being in charge of a licensedpilot, was proceeding up channel, steering north-east by north ; whilst- thisbarque was going down channel, heading south-west by south, and thereforeon a course parallel to that of the steamer. The wind was east by south ;each vessel was making about six knots an hour through the water ; and thetide, which was against the steamer, was of course in favour of the barque-It is further admitted that at some time before the collision the steamer star-boarded her helm, or at least executed a manoeuvre which had the effectwhich starboarding a helm of the ordinary construction produces ; and thatthe barque ported her helm. The result was a collision in which the barque,being struck on the port bow by the stem of the steamer, was sunk, her crewhappily escaping on board of the steamer.
The case of the barque is thus stated: “ The masthead light of the steamerwas first seen at the distance of between three and four miles nearly ahead,but a little on the port bow of the barque her red or port light was subse-quently made out in the same direction. She continued to approach the barqueon her port bow, and in such a direction as to involve danger of a collisionunless one of the vessels ported ; and as no alteration was made in her coursewhen the two vessels were so near that it was dangerous for the barque tokeep on her course, the helm of the latter was ported. Very shortly afterthis has been done, and the vessels would otherwise have passed clear of each
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other, the steamship was uoticed to be making towards the barqne ; and asthe only means of avoiding a collision, or lessening the effect thereof, thehelm of the barqne was pnt hard aport; bat almost immediately afterwardsthe steamer, having shat in her red and opened her green light, ran stem oninto the barqne," &c. And the contention of the plaintiffs, the owners of thebarque, was that the collision was attributable solely to the carelessness,negligence, and want of skill of those on board and in charge of the steam-ship, more especially in their having omitted, either from want of a goodlook-out or otherwise, to take within sufficient time the proper measures tokeep clear of the barque.
The defence on the part of the steamer raised the following case : “ Thebarque was first seen at the distance of about three quarters of a mile from,and being from two to three points on the starboard bow of, the steamer, andwith no light then visible on board the .latter. The steamer starboarded byorder of the pilot, and her head went off to port, and she kept out of theway of the barque; but the latter improperly deviated from her course, undera port helm, and exhibited a red light to those on board the steamer, andcaused danger of collision ; whereupon, by order of the pilot, the steamerhard a-starboarded and stopped her engines, but the barque, nevertheless, raninto, and with her port bow before the fore-rigging struck the steamer onher stem and starboard bow." And the contention of the defendants wasthat the collision was caused by the negligent and improper navigation of thebarque. Another and distinct ground of defence is that, if the collision wasin any way occasioned by any body on board the steamer, it was occasionedsolely by the licensed pilot, whose orders in respect of her navigation werepromptly and implicitly obeyed by her master and crew.
In the circumstance stated, it was the duty of the steamer to keep out ofthe way of the sailing vessel, and provided she did so effectually, she was atliberty to do it either by starboarding or by porting her helm. On the otherhand, it was the duty of the barque to keep her course, and she could beexcused for deviating from it only by showing that it was necessary to do soin order to avoid immediate danger.
At the close of the argument for the appellants their Lordships intimatedtheir opinion that no ground had been made for disturbing this judgment, inso far as it found that as between the colliding vessels the steamer was solelyin fault. The conclusions which they drew from the evidence were, that thevessels were meeting port side to port side ; that the steamer took no stepsto avoid the barque until the vessels were very near each other ; and that inthese circumstances the barque was justified in porting her helm when shedid port it; whilst, on the other hand, the starboarding of the helm of thesteamer when it took place was a dangerous and improper manoeuvre, andthe immediate cause of the collision.
Their Lordships of the Privy Council founded this conclusionmainly upon the inference which they drew from the evidencethat, if there had been a proper look-out, not only would thebarque have been descried at a greater distance, but her trueposition would have been known. It was in short held in thiscase that the Velasquez was to blame, because, although shewas at liberty to get out of the way of the barque Star of Ceylon,either by starboarding or porting her helm, it was her duty totake measures for this purpose in sufficient time to practicallyget out of the way, and not leave it until so late a moment that
there was risk of immediate collision.
VOL. I.
K
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In the present instance, therefore, if I thought that the steamerhad left it to the last moment to take the proper measures forgetting ont of the way of the schooner, and that it had not actedwith all the promptness which might have been expected underthe circumstances, then I ought to hold that Bhe, too, was in fault;but it seems to me that there is no good ground why I should notaccept Mr. Emery’s account of the matter, and according to that,although he was on the watch and perceived the schooner in thefirst instance before any suggestion of a light proceeded from her,yet he had not been able to see her in time to take more effectivemeasures than he did take. Had the schooner exhibited to himthe lights which she was bound to carry, he would have seen atthe first glance precisely what course she was pursuing, and hewould probably have seen that she was coming down upon himBtem on. At any rate, he would not have been obliged to waitfor two or three minutes before he could ascertain what probablyher real course and relative position was. Now, on this evidence,taken in connection with that of the plaintiffs’ witnesses, I thinkI cannot avoid the conclusion that the schooner had not got herred or green lights shown. Mr. Emery says he did not see themat any time, and that he never saw any trace after the collisionof their having previously been where they ought to have been.There were no broken lamps; in fact, there was nothing toindicate that these lights had existed, and although Abbas andthe other witnesses called on the part of the plaintiffs say thatthe lights were burning before and up to the time of the collision,they all agree in saying that the moment they discovered thewhite light was not the shore light, bnt a Bteamer’s light, theyput up a white light on the forestay. Why did they do that, ifthey had the other lights properly burning ? It was a distinctbreach of the law for them to do so. The rule which obligessailing vessels to carry the red and the t'reen lights on their portand starboard sides respectively forbidis them to carry any otherlight. I cannot say that I have the si ightest doubt that therewere no lights exhibited on the part o.f the schooner until themoment when she discovered that the steamer was approach-ing her, and that then the schooner’s people held up as pro-minently as they could the white light taken from the cabin. Ifthis be so, it was not the fault of Mr. Emery, but distinctly thatof the schooner, that he was obliged to w aste two or three minutesin watching the sailing vessel, and in endeavouring to form anopinion as to her course before he could take any steps to get outof her way. And how important those two or three or fourminutes were can be seen at once when it is considered that at
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the rates of speed spoken to by the witnesses the two vesselsmost have been approaching each other at the relative velocity ofat least some twelve miles an hoar, which would need only fiveminutes to cover the whole space that Mr. Emery reckonedintervened between the steamer and the schooner when he firstperceived the latter. The hypothesis by which Mr. Emery ex-plained the temporary disappearance of both the schooner andher light was, that although the sky was clear there was consider-able haze in places on the snrface of the water. And this issupported by the schooner’s own case that it was some time afterthe mast-head light of the steamer was first seen that her sidelights came into view.
The conclusion, then, which I have arrived at on the wholeof the case is that, while the schooner was materially in fault inthe matter of this collison, there is no substantial fault attri-butable to the steamer upon which the latter can be madeanswerable for even half the damages sued for. The judgmentof the Court must therefore be that the action be dismissed withcosts.
Judgment accordingly.