OF

LAW.

PRIV. Co.]

JUDICIAL COMMITTEE OF THE

PRIVY COUNCIL

Reported by J. P. ASPINALL, Esq., Barrister-at-Law. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND.

April 28 and 29, 1875.

(Present: The Right Hons. Sir J. W. Colvile,
Sir BARNES PEACOCK, Sir MONTAGUE SMITH, Sir
R. P. COLLIER, and Sir H. S. KEATING.)
THE ANGLO-INDIAN.

Collision-Lights-Duty to show light astern to following ship.

It is prima facie the duty of an overtaking ship to keep out of the way of a ship ahead of her, but if the latter ship sees another approaching her from a direction where her lights are not visible, and which vessel she has reason to suppose does not, in fact, whether keeping a good look-out or not, see her and is likely to come into collision with her, it is her duty to give some warning to the overtaking ship, not necessarily by exhibiting a light, but by some signal, such as the firing of a gun, the showing a light, or otherwise, which will indicate her whereabouts to the overtaking ship, and call the attention of that ship to the danger of a collision.(a)

THIS was an appeal from a decree of the Right Hon. Sir Robert Phillimore, Knight, Judge of the High Court of Admiralty of England, in a cause of damage promoted in that court by the respondents, the owners of the brigantine Excel and of

the

cargo laden on board her; and also by the personal representatives of her late master, and others of the crew of the Excel, against the barque Anglo-Indian, of which the appellants were owners, for the recovery of damages arising out of a collision between the said two vessels.

The Excel was a brigantine of 210 tons register, or thereabouts. The Anglo-Indian was a barque of

440 tons register.

The collision happened about 2.30 a.m. on the 14th April 1874, in the Bay of Biscay, about fifty miles south by west of Cape Finisterre.

The wind at the time was blowing a gale from the north-north-west, and the night was dark and cloudy, with passing showers.

(a) See notes to The Earl Spencer, post, p. 4.-ED. VOL. III., N. S.

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The case set up in the court below on behalf of the respondents, as stated in their petition, was, that the Excel, whilst in the prosecution of a voyage from Swansea to Barcelona, was hove to on the starboard tack, under double-reefed mainsail and mainstay sail, heading about west, and forereaching at the rate of between one and two knots an hour, making considerable lee way. The regulation lights were said to be duly placed and burning brightly at the time. Shortly before 2.15 a.m. a green light-which afterwards proved to be that of the Anglo-Indian-was observed astern of the Excel, and distant about 300 yards. The AngloIndian, it was alleged, instead of keeping out of the way of the Excel, approached her in a direction which involved risk of collision, and exhibited her red light to those on board the Excel; and, as it was further alleged, although the Anglo-Indian was loudly hailed from the Excel, and a light was exhibited over the stern of the Excel, the AngloIndian ran into and struck the Excel upon the stern, and did her so much damage that she shortly afterwards foundered and was lost, together with her cargo and everything then on board her. Upon this occasion the master was unfortunately drowned.

that

The case on the part of the appellants was, on the occasion in question the Anglo-Indian, bound from London to Jamaica, was close-hauled on the starboard tack under reefed upper topsails, foresail, and foretopmast staysail, heading about west, and making about five knots an hour. Her proper regulation lights were duly exhibited and burning brightly, and a good look-out was being kept.

Under these circumstances, about 2.30 a.m., on the 14th April, the hull of the Excel was made out a very short distance ahead and a little on the starboard bow of the Anglo-Indian. The helm of the Anglo-Indian was thereupon immediately put hard astarboard, but it was impossible to avoid a collision, and the stem of the Anglo-Indian struck the Excel on the port side of her stern.

The respondents alleged that the collision was caused by the negligence of those on board the Anglo-Indian, and by reason of their neglect to keep a proper look-out and to keep the AngloIndian out of the way of the Excel.

The appellants denied the statements of the respondents that a light was exhibited over the stern of the Excel and that the Anglo-Indian was

B

hailed, and attributed blame to those on board the Excel for improperly neglecting to keep a good look-out, for improperly neglecting to take any measures to show the position of the Excel to those on board the Anglo-Indian, and for improperly neglecting to observe the provisions of article 20 of the Regulations for Preventing Collisions at Sea.

The evidence was taken orally in open court before the learned judge of the court below, who was assisted by two of the Elder Brethren of the Trinity Corporation. The learned judge found the Anglo-Indian alone to blame for the collision, giving his reasons as follows:

Sir R. Phillimore.-There is no question at all. as to the duty of the Anglo-Indian, that is clearly prescribed by the 17th article: "Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel;" and her defence for not keeping out of the way, as I understand it, is that the night was so dark that it was the duty of the Excel to have shown a light over her stern, and that if she had done so the collision would not have taken place. But on the evidence I am satisfied that the night was not of the character described by the Anglo-Indian witnesses. I am satisfied that the Excel ought to have been visible to those on board the AngloIndian at the distance that she says, viz., at the distance of at least 300 or 400 yards, and that if there had been a proper look-out on board the Anglo-Indian-and in my opinion and the opinion also of the Elder Brethren there was not-she would have seen the Excel in time to have got out of her way, and to have crossed her stern by starboarding at an earlier period. The question, therefore, does not arise, nor does the court intend to discuss it, whether in the present state of the sailing regulations it would or would not have been the duty of the Excel to have shown a light over her stern, because I am satisfied, as I have already said upon the evidence, that this vessel ought to have been visible to those on board the Anglo-Indian at a sufficient time to have avoided the collision. And, indeed, there is a dilemma out of which the Anglo-Indian, in my judgment, would find it difficult to escape, even if she had not been going at a speed of about six knots an hour, she being the overtaking vessel. She was going about six knots, and that rate of speed would only be justifiable if she could have seen a vessel in sufficient time to get out of her way. I am satisfied upon the evidence, as I have already said, that if there had been a proper look-out this vessel would have been seen in due time to have prevented the collision, and therefore I pronounce the AngloIndian alone to blame. The cross action must be dismissed.

From the decree made in accordance with the above judgment the owners of the Anglo-Indian appealed for the following among other reasons:

1. Because the evidence taken in the court below shows that the collision was attributable to the negligence of those on board the Excel.

2. Because those on board the Excel neglected to keep a good look-out.

3. Because those on board the Excel neglected to take any measures to show the position of the Excel to those on board the Anglo-Indian.

4. Because on the evidence adduced by the respondents themselves it is evident that those on board the Excel considered it necessary to show a

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light over the stern, and that no light was shown in time to give those on board the Anglo-Indian warning.

5. That the learned judge ought to have held the Excel to blame for neglecting to show a light to indicate her position to the Anglo-Indian.

6. Because the collision was not occasioned by any negligence of those on board the AngloIndian.

Butt, Q.C. and R. E. Webster, for the appellants. -It was the duty of those on board the Excel to have kept a better look-out. It was, further, their duty to have exhibited a light over the stern of the Excel in sufficient time to have given warning to the Anglo-Indian and to have enabled her to keep out of the way of the Excel. This duty arises out of the general maritime law, which requires a ship, being approached by another ship from such a direction that the former is not as visible as the latter, to exhibit a light or give a signal so as to warn the approaching vessel:

The Iron Duke, 4 Notes of Cases, 94, 585; 9 Jur. 476;
The Osmanli, 7 Notes of Cases, 509.

And this duty is continued and enforced by the 20th article of the regulations for preventing collisions, which provides that "nothing in these rules shall exonerate any ship or the owner or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case." The duty to exhibit a light being under such circumstances an obligation of the general maritime law, was a "precaution required by the ordinary practice of seamen." There is no obligation to carry a fixed light over the stern, but a light should be shown in proper time as a signal.

By

Milward, Q.C. and E. C. Clarkson, for the respondents.-There is no duty to exhibit any light except those provided by the regulations. article 2, it is expressly provided that the lights therein provided, and "no others," shall be carried, and to find that it was the duty of a sailing vessel to carry more than the side lights at night would be an overruling of the regulations. But even if there was such a duty, it can only arise when there is danger of collision, and in the present case there was no reason to apprehend danger until the ships were close together, and then the green light was actually shown. Those on board the Excel kept a bad look-out.

Butt, Q.C., in reply.

April 29, 1875.-The judgment of the court was delivered by

Sir R. P. COLLIER.-This was a suit brought by the owners of the Excel, a brigantine of 210 tons, against the Anglo-Indian, a barque of 440 tons, in consequence of a collision, for which the Excel maintained that the Anglo-Indian alone was to blame. The collision took place in the Bay of Biscay, about fifty miles off Cape Finisterre, in the open sea, at between 2 and 3 a.m, in Dec. 1874. The Excel was going in a westerly direction, at about 1 or 2 knots an hour. The Anglo-Indian was proceeding at a rate of somewhere about 6 knots an hour in the same course, behind the Excel. The Anglo-Indian ran into the stern of the Excel, and the Excel was sunk. The learned judge of the Admiralty Court has found that the AngloIndian was alone to blame.

The question involved in this case is chiefly one of fact, and their Lordships repeat what, indeed, they have often said, that they are extremely loath to interfere with the finding of the court below on a question of fact, that court having had the advantage, which they have not, of seeing and hearing the witnesses, unless they come to a very clear conclusion that that finding was wrong.

Now, the findings of fact of the learned judge are these: First, with respect to the state of the night, in regard to which there was some conflicting evidence, those on board the Excel representing that the night, though dark, was clear, with passing clouds; those on board the AngloIndian representing that it was dark and very stormy, with rain, or, at all events, occasional rain. The learned judge says: "But on the evidence I am satisfied that the night was not of the character described by the Anglo-Indian witnesses. I am satisfied that the Excel ought to have been visible to those on board the Anglo-Indian at the distance that she says, viz., at the distance of at least 300 or 400 yards." Their Lordships accept that finding, and are of opinion that it is borne out by the evidence. Then the learned judge goes on and finds another most material fact, namely, "that if there had been a proper look-out on board the Anglo-Indian-and in my opinion," the learned judge says, "and the opinion also of the Elder Brethren, there was not-she would have seen the Excel in time to have got out of her way, and to have crossed her stern by starboarding at an earlier period." Their Lordships are of opinion that this finding also is entirely supported by the evidence. Indeed, in their Lordships' view, it might not be incorrectly said that upon the evidence there was no look-out at all on board the Anglo-Indian. The man upon the look-out says that when he first saw the vessel the Excel was "ahead, a little on the starboard bow ;" that he first saw her masts; that when he saw the masts "she was at no distance at all," and "When I saw the masts," he says, on the starboard bow, I wheeled round and sung out, 'There is a vessel on the starboard bow,' but I was too late; we were foul of her already.' And he subsequently says, "I was foul of her the moment I saw her." He further adds that he saw no light whatever on board her, and also that he heard no hailing on board her, which other people on board the Anglo-Indian did hear. This certainly would point to the conclusion that the man Robinson, who was keeping the look-out, as it is supposed, on board the Anglo-Indian, was really keeping no look-out at all. That being so, and having reference to the 17th article, which provides that Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel," their Lordships have no doubt whatever that the finding of the learned judge was right, that the Anglo-Indian was to blame.

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The question remains, whether there was negligence contributing to the accident on the part of those navigating the Excel. On this subject there has been a discussion before their Lordships as to the meaning of three articles in the Regulations for Preventing Collisions at Sea; those articles being the 2nd, the 19th, and the 20th. The second is to the effect that "the lights mentioned in the following articles," numbering them, "and no others, shall be carried in all weathers, from sunset to sunrise." Article 19 is in these terms: "In obeying and construing these rules, due

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regard must be had to all dangers of navigation; and due regard must also be had to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary in order to avoid immediate danger." Then the 20th is: " Nothing in these rules shall exonerate any ship, or the owner or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case." It has been argued on the one side that Article 2 is absolutely prohibitory to a vessel under any circumstances showing any light except the lights prescribed. On the other hand it has been argued that, although undoubtedly it would not be proper for a vessel under the circumstances in which the Excel was to keep up a fixed light at her stern, nevertheless, that under the circumstances of a vessel approaching her which would not be able to see her as well as she would see that vessel, it was her duty to have exhibited a light in time to avoid the collision; that she might have done this, but neglected to do so. Their Lordships do not entirely accept either of the views which have been thus expressed. Undoubtedly it is primâ facie the duty of the overtaking vessel to keep out of the way of the vessel ahead of her, but their Lordships would be loath to lay it down that no duty whatever attaches under such circumstances as the present to the vessel ahead. If that vessel saw another approaching her, whether keeping a good look-out or not, which she had reason to suppose did not in fact see her, and was likely to come into collision with her, they would be loath to say that no duty was cast upon her. On the contrary, they are of opinion, under those circumstances, it would be her duty to give some warning to the approaching vessel, not necessarily by exhibiting a light, but by some signal, such as the firing of a gun, the showing a light, or otherwise, which would indicate her whereabouts to the approaching vessel, and call the attention of that vessel to the danger of a collision. The question, therefore, comes to this, whether in this case it has been established that the Excel, in the words of Article 20, did neglect any precaution which might be required by the ordinary practice of seamen, whereby she might have avoided the collision?

Now, the facts with reference to this subject may be taken to be these: The Excel saw the Anglo-Indian approaching at a distance of about 300 or 400 yards. That is found as a fact by the learned judge, and their Lordships think rightly. It appears that, simultaneously with her sighting this vessel she sighted the green light of the vessel, and that green light would then indicate that there was no danger of collision; that the Anglo-Indian would pass behind her stern. Very soon after both lights opened, the red and the green, and then undoubtedly there was imminent danger of a collision. The evidence on the part of the Excel is that, under those circumstances, after an ineffectual attempt to obtain the globe light, the green light was taken from the starboard side of the vessel and exhibited from the stern. That fact appears to be proved, and their Lordships are by no means satisfied upon the evidence that that green light was not shown in sufficient time to have enabled the overtaking vessel, if she had

PRIV. Co.]

kept a good look-out, to have avoided the collision, which might have been in all probability prevented by a very trifling starboarding of the helm.

Under these circumstances, in their Lordships' view, it is not established that the Excel did neglect any precaution "which may be required by the ordinary practice of seamen," and that no case of contributory negligence has been made out against her.

Under these circumstances, their Lordships will humbly advise her Majesty to affirm the decision of the Admiralty Court, and to dismiss this appeal with costs. Appeal dismissed.

Solicitors for the appellants, Stokes, Saunders, and Stokes.

Solicitor for the respondents, Thomas Cooper.

Thursday, June 17, 1875. (Present Sir JAMES W. COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE SMITH, and Sir ROBERT P. COLLIER.)

THE EARL SPENCER.

Collision-Ship overtaken-Duty to show a light astern--Speed.

Although a ship is, under some circumstances, bound to keep a look-out astern, and to show a light or give a signal to another ship overtaking her and evidently unable to see her, nevertheless, where a steamer going at a high rate of speed in a fairway overtakes a sailing ship showing no light or signal, and does not see her until too near to avoid a collision, although keeping a good lookout, the steamer will be held alone to blame, if a lower rate of speed would have given the steamer time to have avoided the collision upon sighting the sailing ship.(a)

Tuis was an appeal from a decree of the Right Hon. Sir Robert Phillimore, the learned Judge of the High Court of Admiralty of England, in a case of damage lately pending in that court, promoted by the respondents, as the owners, master, and crew of the Merlin, and the owners of her cargo, against the steamship the Earl Spencer, owned by the appellants, the London and NorthWestern Railway Company.

The cause arose out of a collision which took place between the two vessels about 4.30 a.m., on Saturday morning, the 17th Oct. 1874, within Holyhead Bay, North Wales, a little inside the breakwater. The Merlin was a schooner of 65 tons register, manned by a crew of four hands, all told, and whilst proceeding from Carmarthen to Liverpool with a cargo of tin plate, was in Holy. head Bay, inside the breakwater. The Earl Spencer, a paddle-wheel steamship of 431 tons register and 350 horse power, was proceeding

(a) This decision and the one preceding it, The AngloIndian (ante, p. 1), have the effect of overruling the decision of the Admiralty Court in The Earl Spencer (ante, vol. 2, p. 523), where it was decided that there was no duty upon any ship to exhibit lights other than the lights provided by the regulations, and that, in fact, such exhibition of lights would be contrary to law. Now, however, a vessel seeing another overtaking her will be bound to show a light or signal if there is danger of collision, and the headmost ship has reason to believe that the following ship cannot make her out; in effect, where the special circumstances or the ordinary practice of seamen require the exhibition of such a light. Whether the exhibition of the stern light is required will of course be a question for the court or the assessors in each case. -ED.

[PRIV. Co. from Greenore, Ireland, to Holyhead, with cargo and passengers.

The case for the appellants, as set up in their answer, was, that under the foregoing circumstances, the Earl Spencer proceeded on her said voyage in safety until about 4.25 a.m. on the 17th Oct. 1874, when the tide being ebb, the weather dark and rainy, and a gale blowing from the S.S.W., the Earl Spencer was rounding the breakwater of and entering Holyhead Outer Harbour, heading about S.E., with her regulation lights burning brightly, and a good look-out being kept on board of her at such time; and after rounding the breakwater those on board the Earl Spencer suddenly sighted a vessel, which turned out to be the Merlin, with no lights visible, bearing about half a point on the starboard bow of the Earl Spencer, and close ahead of the latter vessel, and inside the breakwater. The captain of the Earl Spencer, thinking that the Merlin was a vessel at anchor, starboarded the helm of the Earl Spencer to go to the eastward, and outside of her and of the other shipping, there being several vessels at anchor to the westward of the Merlin; but, discovering immediately afterwards that the Merlin was under weigh, the captain of the Earl Spencer ordered the engines of that vessel to be stopped and reversed full speed, which order was immediately obeyed, but the time which had elapsed from the sighting of the Merlin was so short, and as the Merlin was steering a course which crossed the course of the Earl Spencer, that latter vessel was unable to avoid the Merlin, but her bow came into contact with the stern and port quarter of the Merlin. The captain of the Earl Spencer attempted to tow the Merlin into safety, but, after an unsuccessful attempt to do so, was compelled, through fear of risking the lives and property under his care, to abandon her, after taking on board her crew.

The appellants charged those on board the Merlin with improperly omitting, under the circumstances of the case to hail the Earl Spencer or to show a light, or to take any proper measures in due time to warn those on board the Earl Spencer of the proximity and position of the Merlin, although, from the relative position of the two ships, the regulation lights of the Merlin were not visible to those on board the Earl Spencer. The appellants further charged that those on board the Merlin neglected to comply with the provisions of articles 19 and 20 of the Regulations for Preventing Collisions at Sea. The appellants further charged that the said collision was occasioned or contributed to by the negligence of those on board the Merlin.

The case of the Merlin, as stated in her petition was, that she was on the starboard tack, heading about S.E. by S., with a moderate gale from the S.S.W., weather rainy, and tide about one and a half hour's ebb, and was making about 1 to 2 knots per hour, with her proper regulation lights duly exhibited and burning brightly; that she was under double-reefed mainsail, reefed topsail, standing jib, and fore staysail, and her crew were engaged in setting her double-reefed foresail, the captain having charge of the helm. That the Earl Spencer, with her three lights open, was seen at the distance of about a cable's length astern of the Merlin, and coming towards her under steam. The Earl Spencer, though loudly hailed from the Merlin, ran against and with her stem struck the Merlin a violent blow on