APPEAL UPHELD

Evening Post, Volume CXXVIII, Issue 49, 26 August 1939, Page 7

APPEAL UPHELD

HURUNUI COLLISION

LOST VESSEL'S FAULT

JUDGES UNANIMOUSLY AGREE

(By Air Mail, from "The Post's*

London Representative.)

LONDON, July 27

The appeal of the New Zealand Shipping Company against the judgment given by Sir Boyd Merriman following a collision between the liner Hurunui and a steam drifter Reclaim, when nine lives were lost, was allowed by the Court of Appeal. The decision announced in the lower court in favour of May Florence Foyster, widow of one of the crew, who has five children, was reversed. Leave for the widow to appeal to the House of Lords has been granted.

Asking ior damages, the widow claimed that the collision was caused partly by the fault, or default, of the owners and master and the crew of the Huriinui. The total-sum involved is believed to be about £30,000. The case has been referred to as "important and difficult."

The appeal was heard by Lord Justice Scott, Lord Justice Finlay, an^d Lord Justice dv Barcq.

Lord Justice Finlay, in his reasons for allowing the appeal, said: "Nothing done or omitted to be done by the Hurunui can affect the fact that this lamentable accident was due to' nothing but the negligence, and reckless navigation, of the Reclaim."

RECLAIM'S STRANGE ACTION. The collision took place between 9 a.m. and 10 a.m. on November 19, 1937, in the North Sea about five miles off Lowestoft. The Hurunui was proceeding north at about 11 knots; the Re-, claim, with other fishing drifters, was coming out into the North Sea on an easterly gourse, at about right angles to I the course of the Hurunui, with the Hurunui on her starboard hand. Under articles 19 and 22 it was the duty of the Reclaim to keep out oi the way of the Hurunui. which with 4600 tons'of cargo on board had a displacement of about 11,000 tons. Until shortly before the collision another drifter, the Marshal ■ Pak, was near to the Reclaim and proceeding on a parallel course. The Marshal Pak changed course, slackened speed, and passed astern of the Hurunui. The Reclaim kept, straight on, to • the '"amazement" of the Hurunui's pilot, who expected her to give way. When he saw that a collision was unavoidable he turned the Hurunui hard to starboard, and gave a warning blast. In his judgment—each Judge gave a separate judgment, and all agree unanimously—Mr. Justice Finlay said: "It is distasteful to have to criticise the navigation of the Reclaim, when all those on board her, with the exception of the cook, who had, of course, no responsibility for navigation, were drowned. But justice to the living makes it necessary for-me to say that in my opinion the cause of the accident was the negligence of the Reclaim, negligence which persisted right up to the moment of collision, and which far transcends the negligence so constantly dealt with in the courts where some action is taken when other action would have been more appropriate, or action is taken late when earlier action would have been appropriate. NO REGARD FOR OWN SAFETY. "Here the Reclaim was navigated without any regard for her own safety, or the safety of others, and she persisted in that course of conduct when warned by the blast of the Hurunui.

"On the facts of this case I am no! prepared to hold that the pilot of tha Hurunui made any mistake at all. It is important to remember tha^ his duty, under the rule and the note was only; to aid the give-way ship, the Reclaim, in action to avoid the collision. Herei the Reclaim took no action whatever to avoid the collision, and it was there*' fore difficult, if not indeed impossible, to aid her. , "We are advised by otlr assessors that the pilot ought reasonably to have expected the Reclaim, on hearing the one blast signal, 'to wake up and put he* wheel either hard to port or hard to starboard.' The pilot himself said that he thought that the Reclaim would go to port. He may have had in his mind perhaps subconsciously the possir bility of the Reclaim going to sta^* board, although he did not say so iii his evidence, but, however that may be, it seems to me that he was certaihr ly.entitled to suppose that she-would probably go to port.

"If she had gone to port, the action which the pilot took in starboarding would have given her effectual aid ihi avoiding the collision. If she had gone to starboard, it seems to me probable^ that for the engines of the Hurunuf' then to be reversed would have beert to add to the risk of collision.

"In these circumstances, I am of opinion that the Hurunui in blowing the blast signal when she did, and starboarding when she did, acted inkaccordance with sound rules of naviga* tion, for I agree that the Hurunui cannot be blamed for taking action eithef too early or too late."