THE TRUSTEES OF THE PORT OF TUTICORIN v. WILLIS S.S COMPANY, LIMITED

064-NLR-NLR-V-43-THE-TRUSTEES-OF-THE-PORT-OF-TUTICORIN-v.-WILLIS-S.S-COMPANY,-LIMITED.pdf


Trustees of the Port of Tuticorin v. Willis S.S. Co., Ltd.,
253
[Colonial Court of Admiralty.]
1941Present: Howard C.J. (President).
THE TRUSTEES OF THE PORT OF TUTICORIN v.
WILLIS S.S. COMPANY, LIMITED.
Cause No. 1 of 1939.
Action for damages-—Collision between two ships-—Defendant’s ship towedto berth by harbour pilot—Failure to give warning to pilot■—Negligenceof defendant.
Plaintiff sued the defendants for damages sustained by reason of acollision that occurred in the Colombo Habour between the s.s..Harborough owned by the defendants and the dredger s.s. Tuticorinowned by the plaintiffs, which collision was due to the ' negligentand improper navigation of. those on board the s.s. Harborough.
It was conceded that at the time of the collision the “ Tuticorin ” was atanchor in the Colombo Harbour which is subject to the law of com-pulsory pilotage and that s.s. Harborough was being navigated into aberth by a Pilot acting under the control and orders of the Governmentof Ceylon.
It was also in evidence that although the s.s. Harborough had aright-handed screw and as a rule when the helm is put to starboardgoes to starboard, sometimes for some unknown reason she would swingto port and that the Captain had not warned the pilot of this before hetook the ship to berth.
Held.-, that the defendants had not discharged the burden imposedupon them of establishing that the collision was occasioned by no faulton their part ,or that it was solely the fault of the pilot and that conse-quently they were liable in damages.
T
HIS was an action instituted in the Colonial Court of‘Admiralty.
The facts are stated in the head note.
E. F. N. Gratiaen, instructed by F. J. & G. de Saram, for plaintiffs.—The dredger “ Tuticorin ” was at anchor when the s.s. Harborough,.
254 HOWARD C.J.—Trustees of the Port of Tuticorin v. Willis S.S. Co., Ltd.
which was in motion, came into collision with it. The fact that theplaintiff’s vessel was, at the time of the collision, at anchor and could beseen was prima facie evidence of negligence on the part of the defendants.The burden of proof was upon them to rebut the presumption of liability—The Indus ”.1
It is the duty of the master and crew to render proper assistance to thePilot—s.s. Alexander Shukoff v. s.s. Gothland.'
It is the' duty of the master to warn the Pilot of the tendency of aship to swing to port when the helm is put to starboard.
N.K. Choksy (with S. J. Kadirgamar), instructed by Julius & Creasy,for defendants.—No liability attaches to the defendants because (1) thecollision was caused by no fault on their part, (2) it was due to inevitableaccident, (3) it was solely the fault of a pilot who was on board bycompulsion of law.^
’The cause *of the collision was’ a cause not produced by the defendants ;it was a cause the result of which the defendants could not avoid. “ TheMerchant Prince”.*
An outside .influence and not something in the ship herself was re-sponsible for the swing in the wrong direction. This outside influencewas the dragging of the ship in shallow water.
The Pilot was at fault in two particulars, viz. : — (u) in failing to requi-sition a tug, (b) in approaching berth 28 with too much headway.
A ship of the Harborough’s displacement should not be brought toher moorings without a tug.
Headway should have been taken off the ship before it reached buoy 33.
There was no “ duty to warn ” the Pilot of the unusual swinging toport, contrary to the helm, as it had occurred only once before and maywell have been due to extraneous causes. A single such occurrence longbefore does not indicate any defect in the steering gear; the Captainof the Harborough had no reason to anticipate that it would ever occuragain. The evidence' is that the Captain did warn the Pilot as soon astthe latter gave the order to put the helm to starboard. The pilot had theopportunity of countermanding the order but did not do so and choseto take the risk, and the fault was entirely his.
December 12, 1941. Howard C.J.tt-
In this case the plaintiffs • claim a sum of 1^. 5,712, being damagessustained by reason of a collision that occurred in ‘ Colombo harbouron December 13,' 1938, between the s.s. Harborought owned by thedefendants, and . the dredger “ Tuticorin ”, owned by the plaintiffs,which collision was occasioned by the negligent and improper navigationof those on board the s.s. Harborough. The. damages were agreedbetween the parties at the amount stated in the claim. It was also
conceded by the defendants that at the time of the collision the “ Tuti-corin ” was at anchor. In such circumstances the law formulated in“ The Indus ” (supra) was applicable. In that case in an action.for damage by: collision where it appeared that the defendants’ vessel'1(1887) 12 P.D. 46.* (1921) 1 A.C. 216.
(1892) P. D. 187.
HOWARD CJ.—Trustees of the Port of Tuticorin v. Willis S.S. Co., Ltd. 255
while in motion came into collision with the plaintiffs’ vessel which wasat anchor, it was held that the fact that the plaintiffs’ vessel at the timeof the collision was at anchor and could be seen was prima facie evidenceof negligence on the part of the defendants, and that the burden of proofwas upon them to rebut the presumption of liability, by showing eitherthat the collision was occasioned by no fault on their part, or that it wasdue to inevitable accident, or that it was solely the fault of a pilot whowas on board their vessel by compulsion of law. The only question,therefore, that I have to decide in this case is whether the defendantshave established to my satisfaction either—-
That the collision was occasioned by no fault on their part, or
That it was due to inevitable accident, or
That it was solely the fault of a Pilot who was on board by
compulsion of law.
The main contention of the defendants has been based on (c). At thesame time Mr. Choksy contends that, if the collision was not . solely thefault of the Pilot, the defendants come within (a) or (b). In consideringwhether the defendants have established that the Pilot was solely toblame, it has to be borne in mind that the law imposes on the Masterand crew the duty of rendering proper assistance to the Pilot. In s.s.Alexander Shukoff v. s.s. Gothland' Lord Birkenhead L.C., at p. 223,Stated as follows : —
“ In cases where such a defence ” (that is to say one of compulsorypilotage) “ is set up there are two factors which must be taken intoaccount. The first is that this defence, which is of statutory originand has been repeated in successive Acts of Parliament, is part ofthe settled policy of the country, and is not to be narrowed or di-minished in force by decisions of the courts. The second is that thisrule, which is intended as a measure of security, does not mean, andmust not be taken to mean, that a Pilot when once he is in charge ofa vessel is so circumstanced that the master and crew owe him noduty to inform him of circumstances which, whether he has noticedthem himself or not, are material for him to know in directing thenavigation of the vessel. The master and crew are not mere passengerswhen a Pilot is on board by compulsion of law. The Pilot is entitledto their assistance, and to apply the defence of compulsory pilotageto a case where the accident would have been averted if such assistancehad been given, though in fact it was not, would defeat the'policywhich has created the defence, and so far from increasing the safetybf navigation would actually increase its risks. The law has been laiddown in a number of cases, though not, I believe, in this House. InThe Iona ‘ the Judicial Committee, after pointing out that it wasfor defendants to make out the defence and that therefore they mustprove not merely that there was fault or negligence on the part of thePilot'but that the? darrtage was occasioned exclusively by such default,proceeded to point out that if the Pilot had been made earlier aware ofthe position of a certain barge the accident might never have occurred.
*£.R. 1 P.C. 435.
1 U921) 1 A.C. 216.
256 HOWARD C.J.—Trustees of the Port of Tuticorin v. Willis S.S. Co., Ltd.
Thus the neglect of duty on the part of the lookout man not onlymight have been conducive to the disaster but was in all probabilitythe ultimate cause of it. Again, in “The Velasquez"', the JudicialCommittee laid down the rule in these terms: —‘ The cases haveclearly established that if, for any act or omission which contributedto the accident, the master or crew is to blame, then, although thePilot is also to blame, the owners are not exempted fromliability.
Colombo harbour is subject to the law of compulsory pilotage and the" Harborough ” was being navigated into No. 28 berth by a Pilot actingunder the control and orders of the Ceylon Government. I -have toascertain the facts with regard to what happened from what has beentermed an “ agreed statement of evidence ” which are extracts fromthe record of an inquiry held by the Commissioner of Wrecks soon afterthe collision. Inasmuch as the persons concerned were not representedby Counsel these extracts, as might have been anticipated, leave severalmatters unexplained. However, I have to do my best with the materialat my disposal. According to the evidence of the Pilot, at 11.38 a.m.,he brought in the “ Harborough ” which was a vessel with a right-handedscrew through the northern entrance with the intention of making forNo. 28 berth. When approaching the head buoy of this berth with hisengines stopped and helm hard-a-starboard, he sent away his headlineand the ship was swinging bow to starboard. In order to make themanoeuvre necessary for taking the ship into No. 28 berth he gave theorder “ full speed astern ” expecting her to swing in the same way bowto starboard. She swung, however, the opposite way to port. To tryand check this swinging, he let gey the starboard anchor paid out to110 feet and blew for the tug. No tug was, however, available. At11.39" a.m. the pilot gave another “ full speed astern ” order which hedescribes as an emergency order. In spite of the check imposed by theanchor and headline (which was a brand new .7" rope and which parted)the ship carried on and hit the dredger which was in berth No. 34 at'11.39$. The “ Harborough’s ” port anchor caught the superstructureof the dredger at about the break of the forecastle head and damaged itup to the chute. The only other point in the Pilot’s evidence that<:alls for comment is his statement that the wind and sea at the northernentrance would tend to make a ship misbehave and that if a tug had beenavailable he wciuld have used her. The remaining evidence in the agreedstatement is supplied by the Captain, Chief and Third Officers and theChief Engineer of the “ Harborough ”. No conflict as to what happenedarises between their testimony and that of the Pilot. One fact, howeverof great importance does emerge from the evidence of the Master.He states that, when his engines went astern, he warned the Pilot that,although the “ Harborough ” had a right-handed screw and as a rulegoes to starboard, sometimes for some unknown reason her bow willswing to port. In cross-examination he stated that once in the twoyears he had beeii on the ship he had experienced her swinging thewrong way and after that experience he warned Pilots that she may
J Ibid. 494, 498, 500.
HOWARD C.J.—Trustees oi the Port of Tuticorin v. Willis S.S. Co., Ltd. 257
swing the wrong way. The Master also stated that, when the “ Har-borough ” went astern, she was about the ship’s length from the dredger.The Chief Engineer also stated that he had seen the ship swinging thewrong way before, but could not account for it. The Chief Officerstated that the headline on the buoy did not check the vessel until it wasat its full length—90 fathoms—by which time they were within twentyfeet of the dredger and his men were not quick enough to get turns onthe bitts as the vessel had such way on her.
To supplement the evidence of the eye-witnesses of the collision thedefendants called Mr. W. S. Watt, a fully qualified Master with seventeenyears’ experience at sea and twenty-seven in Colombo as Master of the“ Sir William Matthews ”, a dredger, and with the Ceylon WharfageCompany. The establishment of the defendants’ case with regard tothe negligence of the Pilot is based on the expert evidence tendered bythis witness. He has made certain deductions from the evidence of theeye-witnesses which evidence indicates, so he maintains, that the collisionmust be attributed to the -Pilot who was at fault in two particulars,that is to say (a) in failing to requisition a tug, (b) in approaching berth 28with too much headway. On the other hand the plaintiffs have calledCommander Pocock, the senior Pilot, and Lieut.-Commander Rigby Swift,who maintain that the evidence indicates that the collision cannot inany way be attributed to the negligence of the Pilot, but was due to theship turning to port when the engines were put full speed astern. Thesewitnesses also contend that the Master should have warned the Pilotthat the ship had this peculiarity.
Is it established that the Pilot was at fault in failing to requisition atug to assist him in berthing the “ Harborough ” ? There are onlytwo tugs, one only of which according to Commander Pocock is as a ruleon duty. Sometimes four ships are berthed at the same time. Com-mander Pocock further states that it is the practice of the Pilots tobring ships to their moorings without tugs and that he does so in ninecases out of ten. On the other hand the Pilot states that he would haveused a tug if one had been available and it would have been possible tohave waited. Although Mr. Watt in his evidence states a ship of the“ Harborough’s ” displacement should not be brought to her mooringswithout a tug, and it would be very foolish to try and moor a ship inberth 28 without a tug, he admitted in cross-examination that taking avessel to its berth without a tug was not a risk and that he cannot sayhe would have insisted on a tug. Having regard to the practice of thepilotage service and the lack of any evidence to prove that the mooringof a vessel in berth 28 was a hazardous operation necessitating the use of atug, I am of opinion that the failure to requisition a tug for the berthingof the “ Harborough ” cannot be regarded as negligence.
Is the collision attributable to the negligent act of the Pilot in ap-.proach'ing the buoy with too much headway? Mr. Watt states thatheadway should be taken off before the ship reaches buoy 33 and thatthis was not done.' In fact he makes the calculation that, when fullspeed astern was ordered, the ship was proceeding at a speed of fourknots. He makes this calculation from the distance travelled before the
258 HOWARD C.J.—Trustees of the Port of Tuticorin v. Willis S.S. Co., Ltd.
order to go astern was given. Mr. Watt also draws the inference thatthere was too much headway from the failure of the measures takenby the Pilot to check the ship, that is to say, the throwing of the headline,the letting go of the starboard anchor and the order for the engines to gofull speed astern. Mr. Watt in cross-examination says that he cannotvouch for the accuracy of his calculations. They leave on my mindthe impression that they were purely guess work. With regard to theship swinging in the wrong direction Mr. Watt says that this possibilityalways exists and that it is the duty of every Master to warn the Pilotof every peculiarity. At the same time he says that, if a ship had swungthe wrong way once, he does not know whether he would have warnedthe Pilot. He also evolves a theory that an outside influence and notsomething in the ship herself was responsible for the swing in the wrongdirection. This outside influence was, so he suggests, “smelling theground ” or the dragging of the ship in shallow waters. He also assertsthat, owing to silting, parts of the harbour are shallower than othersand in berth 28 there is a shelving' towards the port side which mightproduce this drag. If this drag took place, the putting of the enginesto full speed astern would increase the swing. Although putting forwardthis theory, Mr. Watt admits that the order to go astern was a properone to give and the warning from the Master about the tendency of theship to swing in the wrong direction came too late. Commander Pocock,whilst admitting the swing in the wrong directions could be due tooutside agency and not due to something in the ship, states that he hasnever had experience of a ship swinging the wrong way when being takeninto berth No. 28. Moreover he disclaims all knowledge of Mr. Watt’stheory. With regard to the speed, he states a ship must have someheadway when she reaches the buoy. He considers four knots a little toomuch speed, but he would have a headway of two knots. He also saysthat the Master should have warned the Pilot that the ship, had a tendencyto swing the wrong way so that the Pilot might take extra precaution.Without such a warning the Pilot would expect the ship to swing in thenormal way and hence the order full speed astern was normal. Thestrain on the headline would be greater if the ship swung the wrong way.
Pealing with the evidence as a whole I am of opinion that the sug-gestion that the ship was making too much headway rests on puresurmise. Even if four knots is regarded as excessive for mooring theship in berth 28, such excessive speed cannot be regarded as the proximatecause of the collision. If the ship had swung in the normal way, thecollision would not have taken place. The abnormal swing was theproximate cause of the collision.
As already indicated in this judgment, the defendants must provethat the Pilot was solely responsible for the collision. In this connectionthe question arises as to whether the Master rendered proper assistanceto the Pilot. It is. obvious that the warning with regard to abnormalswinging was useless once the order “ full speed astern ” had beengiven. In my opinion the Pilot should have been warned before hetook the ship to this berth. With such a warning he would have had anopportunity of deciding whether he would take the risk of berthing the
HOWARD C.J.—Trustees of the Port of Tuticorin v. Willis S.S. Co., Ltd. 259
ship without the assistance of a tug. He would have realized, if heattempted the manoeuvre without such assistance, that it was essentialto proceed very slowly. Moreover he might have decided to approachthe berth from the other side of the buoy. In these circumstancesI have come to the conclusion that the defendants have not dischargedthe burden imposed upon them of establishing that the collision wasoccasioned by no fault on their part or that it was solely the fault of aPilot who was on board by compulsion of law.
It has also been suggested by the defendants in the Alternative that,if the Pilot was not at fault, the collision was due to inevitable accident.In this connection I have been referred to the judgment of Lord Esher in“ The Merchant Prince' ” where the following principle with regard to whatin law constitutes “ inevitable accident ” is formulated : —
“ Unless you can get rid of it, it is negligence proved against youthat you have run into a ship at anchor. Then they have gone onwith some variation of phraseology, but I am bound to say that ifyou look into all the cases with an agreement of fact, that the only wayfor a man to get rid of that which circumstances prove against him asnegligence is to show that it occurred by an accident which was in-evitable by him—that is an accident the cause of which was such thathe could not by any act of his have avoided its’result. He can onlyget rid of that proof against him by showing inevitable, accident, thatis by showing that the cause of the collision was a cause not producedby him, but a cause the result of which he could not avoid. Inevitableseems unavoidable. Unavoidable means unavoidable by him. Thatbeing so, there comes the proposition which Lopes L.J. has put intoform that a man has got to show that the cause of the accident was acause the result of which he could not avoid. If he cannot tell youwhat the cause is, how can he tell you that the cause was one theresult of which he could not avoid ? That appears to me to be perfectreasoning. But when he comes to show the circumstances of the case,he cannot show, he says, the cause which puts him in a great difficulty,when he shows circumstances under which the Court can see a cause—I do not say see it clearly proved, but see a probable cause, and seewith the evidence which he gives that, if that was a probable cause,there were means by which he could have avoided it. Then not onlydoes he not satisfy the burden which is put upon him, but he lets youinto the view of things which shows you a probable cause, and showsyou that if that was the probable cause the’means by which he couldwithout difficulty have avoided it. ”
Applying the principles laid down by Lord Esher it may be said in thiscase that the collision was due to the swinging of the ship in the wrongsdirection. That abnormal swing is not the negligent act of the Pilot.The defendants suggest a probable cause which is not clearly proved.The burden of proving that the collision was inevitable is not in suchcircumstances satisfied.
The defendants have, therefore, failed to discharge the burden of proofimposed upon them and judgment must be entered for the plaintiffsas claimed together with costs.Judgment for plaintiffs.
* (1892) P.D. 187-188.