SUPREME COURT.

Otago Witness, Issue 2325, 22 September 1898, Page 24

SUPREME COURT.

ADMIRALTY JURISDICTION. Monday, September 19.(Before His Honor Mr Justice Pennefather and Captain Taylor and Captain Davison, assessors.) PATERSON V. THE OWNERS OP THE STEAMSHIP WAKATIPU. A suit for damages for the loss of the barque Laira and the stores contained in her, and also for tha loss on a charter. Mr Hosking and Mr Solomon appeared for tha plaintiff, and Mr Chapman and Mr W. C. MacGrregor (instructed by Mr Allan Holmes) for the defendants, the Union Steam Ship Company? In this case his Honor delivered the Judgment of the court as follows: — This is an action in the Supreme Court of New Zealand, as the Colonial Court of Admiralty, whereby the plaintiff, as owner of the barque Laira, makes a claim in respect of damage to the ship, loss of ship's stores and provisions, and loss of charter, against the defendants as owners of the s.s. Wakatipu. At the opening it was admitted by the defendants " that the s.s. Wakatipu, then being navigated under steam in the Victoria channel, came into colljson with the barque Laira in broad daylight in the forenoon of the 2nd day of April, 1898, while the latter was moored at the berth at the Victoria wharf, in the harbour of Ota^o, Dunedin, whereby the said Laira suffered damage." I therefore held, following the rule laid down in the Merchant Prince (1892, Pro. 9, 11) that a prima facie presumption of negligence had been raised, which it lay on the defendants to rebut ; and that consequently the defendants were bound to begin. In trying the case the court has had the assistance of two. nautical assessors of great experience and technical knowledge. A vast amount, of evidence has been adduced and the hearing has extended over seven days ; but it cannot be said £a have been unneces-

sarily prolonged considering the intricacy of the case and the difficulties of the points involved. The Otago Harbour is a shallow one, and •would be unavailable for any but small steamers had not an artificial channel, called the Victoria channel, been formed. This required constant dredging in order to keen it clear. The exact depth may vary from day to day ; it might even happen that some alight accumulation might be formed and washed away by a subsequent tide. This fact may to some extent account for the difference between the various soundings of -which evidence has been given, which were taken at intervals between the 21st April and the 6th July of this year, although in certain instances the discrepancies are so serious that it is difficult to explain them except on the supposition that one or other of the soundings is incorrect. Towards the upEer end of the harbour, near the wharf, the ottoin of the channel is muddy, but not bad holding ground for an anchor. When a steamer enters the harbour at Port Chalmers, intending to go up to Dunedin, a waterman goes on board and reports the amount of water then shown on the gauge there, which is an indication to the master of the steamer of the amount of water he may expect to find in the dredged channel; the amount shown on the gaixge is to be added to the normal dredged depth — viz., 16ft, as given by the authorities of the Harbour Board. In this instance the waterman boarded tho Wakatipu and reported to the captain that the gauge showed 3ft. It has been proved by the evidence that in ordinary circumstances, if the tide is rising and 3ft is shown on the gauge at Port Chalmers, a vessel of the draught of tho Wakatipu may safely proceed up to Dunedin. At the upper end of the channel, near the wharf, there is on the eastern side of the channel a row of piles numbered up to 32. On the morning in question the harbour dredge was at work at a spot between piles numbered 27 and 28. A steamer is obliged to slop her engines whilst passing the dredge. The piles are placed in a line parallel to the channel ; that is, in a straight lino running generally in a N.N.E. and S.S.W. direction up to pile 31, but after that bending towards the south and east. A vessel coming up the channel would therefore head directly towards the Victoria wharf until reaching pile 31, after which she would turn slightly to port. It appears, indeed, that some vessels timi slightly to starboard at that point, so as to have a free sweep when turning to port shortly afterwards. The captain of the Wakatipu states that when 'she reached pile No. 31 he gave orders to starboard the helm; that the order was executed; but that when the helm was put hard a-starboard she did not obey it. Two vessels, the Canterbury and tho Laira, were then lying alongside the Victoria wharf. The master continued at a speed of (as he alleges) about 2| knots an hour, hoping that she would obey the helm in time for him to avoid colliding with either of them. When quite close to the Canterbury, finding that she was still refusing, he ordered the engines to stop and reverse, and shortly afterwards dropped the starboard anchor. However, it was too late; the Wakatipu went on, canted to starboard, collided with the Laira, and sank her. The plaintiff, by his preliminary acfc, attributed the following faults and defects to the Wakatipu: — " Negligent, improper, and unskilful management on the part of those in charge of her. "And in particular, bub without limiting or affecting the generality of the foregoing charge : " (sl. the Wakatipu was navigated up the Victoria chaiinel -at too early a sta<*e of the tide. (b) That she was in bad trim to be navigated up the said channel to the Victoria wharf. " (c) That in navigating the said channel, and particularly when nearing the Victoria wharf, she was travelling at too fast a speed. " (d) That her master had not sufficiently acquainted himself with the nature and various depths of the said channel, and while navigating the said channel on the said 2nd day of April took no soundings. " (c) That in navigating the said channel on the said 2nd day of April the Wakatipu kept too close to the piles on the eastern side of the said channel, and did not keep in that part of the said channel where the depth of water was the safest for manoeuvring her, but, on the contrary, took a dangerous course. " (f) That sho was nob kept under proper control while proceeding up the said channel, and particularly when between post 29 in tho said channel and the said Victoria wharf, and that due care was not taken in approaching the said wharf. " (g) That when it was found she failed to answer her helm, sufficient steps were not taken to place her under proper control in case she should fail to do so. "(h) That when it was found she failed to answer her helm no sufficient nor any steps were taken to remedy tho defect or to enable the vessel to take the direction or course required of her. " (i) That her master neglected to take in due time proper measures for avoiding a collision with the Laira or mitigating its. effects. " (j) That an anchor was not dropped soon enough. " (k) That her starboard anchor was used instead of the port anchor, or both. " (1) That her port anchor was not ready to be used in case of emergency. " (m) That her engines were not reversed as soon as they ought to have been for the purpose of avoiding the collision or mitigating its effects. "t" t (n) That her helm was not properly used. " (o) That sho did not observe the provisions of article 18 of the regulations for preventing collisions at sea. " (p) That she was not navigated up tho said channel under a duly qualified pilot or other duly qualified person/ Having heard the evidence and taken the opinion of tho nautical assessors, I hold that the Wakatipu was not navigated up the channel at too early a stago of tho tide; that there is no evidence that her master had not sufficiently acquainted himself with the various depths of the channel, but, on the contrary, it appears that he had taken pains regularly to study the current reports and to make inquiries from persons likely to be correctly informed; and that inasmuch as he had passed the examination for pilotage exemption he was a duly qualified person; although at the same time I wish to state with regard to this that it appears that the examination is conducted in a perfunctory and unsatisfactory manner. The allegations that the vessel was in bad trim, and that she failed to observe the provisions of article 18, have been abandoned during the argument. The next question to consider therefore is whether the Wakatipu- was travelling at too fast a speed; and in connection with that will come the further question whether she was kept under proper control while proceeding up the channel. As to this the evidence is contradictory. It is unfortunate that neither tho mate's log book (which was signed by the master) nor tho engineer's log book is kept in as detailed a manner as could have been wished. In the former, the following entries were made on the 2nd April: — " B.3s.— Entered Taiaroa Heads. " 9.2o.— Passed Port Chalmers. '■ 10.30. — Moored at tongue wharf, Dunedin. " About 10 a.m., when proceeding up channel to tongue wha_rf, and passing Victoria wharf (north end) ship refused to answer helm, causing her to run into and sink the barque Laira." The master has sworn that the Wakatipu was going about six knots an hour over the ground when coming up the channel to just below the position of the dredge. The distance from the Heads to Port Chalmers is about seven miles, and from Port Chalmers to the Victoria wharf about eight miles. The evidence, of the tele-

phonist at tho heads, that he saw the Wakatipujust abreast of the point of the heads, immediately after 9 o'clock, is so clear that even if iff were unsupxsorted it would lead me to think that the log must be incorrect. Then the watermau at Port Chalmers has sworn that he read 3fb on the gauge before informing the master. It has been shown that the reading on the gauge which he used corresponded exactly with that on the automatic gauge, and the automatic gauge did not register 3ft before 9.30. Ib must be taken, therefore, that the Wakatipu diet not leave Port Chalmers until after 9.30. When tho engines were reversed (the Wakatipu being, at that moment abreast of the Laira) the time, according to the engineer's log, was 10.8. That alona would show that the master must be mistaken in saying that she was going about sis knots over the ground till she came up to tho dredge; but, besides that, there was the delay/ in passing the dredge to be taken into consideration. We have also the evidence of the men employed on the dredge, who (considering; the importance it would be to them, inasmuch} as a vessel coming up to the dredge at full speed, even though she stopped her engines whilst actually passing, would strain the moorings of the dredge by her wash) would naturally be observing carefully; and they all say that when the Wakatipu passed the dredge after her, engines had been stopped she was moving at a speed which showed that up to that point she must have been going at upwards of six knots au hour. * I_ am of opinion, therefore, that the speed at which she wag going exceeded not merely the six or six and a-half knots as stated by the master, but even the nine -knots mentioned in the Preliminary Act filed by the defendants. Tho master has also stated that he fancied the vessel was "smelling the ground" when passing Ravensbotirne (a point about one anci three-quarter miles from the Laira). He saicl that she made a sort of shoot there, as if she had skated over something. Now, as to that, it ii possible (1) that the master was wholly, mistaken; or (2) that a shoal had risen in tha channel at that point ; or (3) that she was somewhat out of her course and that the ground she smelt was at one side of the channel. Considering, also, that there is the evidence of th» men on the dredge that after she passed tha point before she came up to the dredge she was going in an erratic manner, and at times keeping close along the bank of the channel, I considw that the last view is the most probable^ and thus there is evidence, as far as in goes, that the vessel was not kept under propel} control while proceeding up the channel. This, it is true, has no direct bearing on thd. cavi3Q of the accident. But indirectly it is important. If the Wakatipu was not going in the middle of the channel before reaching tha dredge, and in consequence smelt the ground,, that raises a presumption that the same thing may have occurred again later. If she was* going at a greater speed than 2£ knots when shet refused to obey the helm, it was the master's duty to reverse the engines and drop the anchoi? sooner than if she had been going slower. I come now to the point opposite pile 31, afi which the Wakatipu refused to obey her helm 5*5 * It is not the duty of the court to find out tha reason why sho did so, but merely to examine) whether the reason alleged by the defendant ia satisfactory. It does not appear quite clear* whether at the moment the master suspected! tho existence of a shoal; but since then soundings have been taken, and he feels confident that the cause was that the vessel was smelling; or touching the ground. There is no doubt that( these soundings have proved that when they; wero taken (the earliest of them being 19 days* after the accident) certain shoals hitherto unknown existed; and this raises a presumption! that they may have been there on the 2nd April. It must be observed, however, that according to the supposed course of the Waka— tipu marked on the chart put in by the defendant, she must have passed over the largest o£ ' these (which is close td pile No. 30) without itst having any perceptible effect on the vessel* course; that the second one (which is near pila> No. 31) rises so little above the bottom of thet channel that her bilge could not have touched it; that if she touched it at all it must have* been with her keel, and if her keel passed over jt she must have been too near to the east sido 1 of the channel; that this ridge is very small and merely composed of soft silt, so that it ist doubtful whether it could have interfered with; her obeying her helm more than a very brieff poriod indeed; and that the other shoals discovered higher up the channel could have hadt no influence on the accident. It is a matterr for, comment that these shoals have not beert tho cause of any other vessel meeting with -aa accident. I cannot hold, therefore, that it hast been proved that this shoal was the cause off tho Wakatipu disobeying her helm and continuing to do so up to the point where the collision became inevitable. Assuming, then, that it had been found out when about opposite pilo No. 32 that for some reason or other thea Wakatipu had failed to answer her helm, the next matter to be considered is whether sufficient steps wero taken to place her under proper control in case she should continue to defc so, to remedy the defect, and to enable the vessel to take the course or direction required ofr her. This will include the questions : Whether due care was taken in approaching the wharf $ whether proper measures were taken for avoiding a collision with the Laira, or mitigating its effects ; whether an anchor was dropped sooni enough ; whether the port anchor or both anchors should have been used ; whether the porfr anchor was ready for use; whether the engines were reversed as soon as they ought to have been, and whether her helm was properly used. Assuming, then, that it had been found out? that for some reason or other the Wakatipir had failed to answer her helm when about opposite pile No. 32, the next matter to be considered is, whether sufficient steps were taken* to place her under proper control in case shet should continue to do so to remedy the defect* and to enable the vessel to take the course ou direction required of her. This will includethe questions whether due care was taken mC approaching the wharf; whether proper measures were taken for avoiding a collision with! the Laira or mitigating its effects; whether art anchor was dropped soon enough; whether tha port anchor, or both anchors, should have been* used ; whether the port anchor was ready for? use; whether the engines were reversed as soon as they ought to have been; and that her helms was not properly used. I must first observe that at this point very," great care, caution, and maritime skill becamenecessary in consequence of the proximity ofT shipping, the narrowness and configuration ofr the channel, the state of the wind and tide, and the fact that the master had noticed that tha vessel had failed to answer her helm. Thespeed which she had maintained from Port Chalmers to a point immediately below the. dredge had been something about 12 knots an; hour ; then her engines had been stopped while* passing the dredge; then they had been seti going again at slow ahead, with occasional touches at full speed. Accelerated also by wind and tide, her speed when opposite pile No. 32' must have far exceeded that stated by the master — viz., 2| knots an hour, and this kept herj beyond safe control. From the position of the steamer when onV pile No. 31 it was evident to the master that if she continued on her then course she must collide with the Canterbury. When the helm had been starboarded and she had refused to* obey it, he must have seen that a collision was imminent. In that predicament he considered that the only thing to do was to wait for tha possibility of the vessel answering her helm afi, the last moment. But there were other stepsi that might have been taken in order to prevent a collision or (if a collision had become inevitable) to minimise the damage it would cause* These were to have reversed the engines at atime agones than he did, to. have let so his porjf

• anchor (which would have kept her head cantmg so rapidly to starboard), shifted his helm, i>nej, if necessary, let go his starboard anchor also. The omission to have his port anchor ready to let go at the right moment brings the case within the words of the Judicial Committee of the Privy Council in the City of Pekin (10 A.C., 40, 45) : ' " Her port anchor ought to have been in readiness. ... In such circumstances tho keeping of both anchors in readiness is a safe and ordinary precaution, it being impossible to predict which of the two it may become necessary to drop, or that both will not be required." There is another unsatisfactory point in the master's evidence as to the position of the starboard anchor, both as to where it was let go «"id where it was eventually picked vp — the p 'pition or distnncs not corresponding with the -amount of chain aiisged to have been paid out. The master states that the anchor was dropped ■about 150 ft from the bow of the Canterbury and about 100 ft outward from but abreast of the Laira' s main hatch, and that it was in that position when picked up after the collision. As thera were only 12 or 14 fathoms of chain let out from the windlass, four and a-half fathoms (27ft) of which were disposed of between the wir-dlass and the outside of the hawse pipe, thera would only be nine and a-half fathoms (57ft) of chain outside to the anchor. Clearly, "therefore, the Wakatipu must have been at a less distance than 100 ft from the Laira, when the anchor was let go, and this proves that the anchor was not let go until doing so had becomo absolutely useless. I now come to consider the results of the facts just proved. According to the rule laid down by Lord Esher, Master of the Rolls, in the " Merchant Prince" (1892), p. 179-187, unless the defendant ■can get rid of it, it is negligence proved against jhiin that he has run into a ship at anchor, and the only way for him to get rid of that which circumstances prove against him is negligence, is to show that it occurred by an accident which was inevitable by him — that is, an accident the cause of which was such that he could not by any act of his have avoided the result. And, as Lord Justice Fry pointed out in the same case, he must either show what was the cause of the accident and show that the result of that causj was inevitable, or he must show all the possible causes, and must further show with regard to every one of these possible causes that the result could not have been avoided. Here, as I have already stated, I do not feel satisfied that the cause alleged by the defendants — namely, crossing the unknown shoal — was "the true one; and even supposing that it was, J do not consider that it has been proved that the result of that cause was inevitable. It has, indeed, been urged by the counsel for the defendants that the master, if ho did not use extraordinary, at least used ordinary skill, and 'that inevitable accident means " that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill." (The Virgil, citerl in the Pladdas, 2 P.D., 34, 38). That was the view which was taken by Lord Justice Fry and Lopes in The Schwan (1892), p. 419; although Lord Esher, in the same case, defined inevitable accident as " something over which he' had no control, and the effect of which could not have been avoided by the greatest care and skill." (See also The Girolomo, 3 Hag. Ad. 169, 174). In other words, some eminent judges have held that the defendant may escape liability by showing media diligentia; others that he cannot do so unless he shows maxima. Fortunately, how- - ever, it is not necessary for me to decide which of , those authorities I ought to follow, for two reasons : In the first place, the amount of care to be expected from a man of ordinary prudence must necessarily to some extent depend on the peculiar circumstances of the case. Here we have a man who is qualified in the sense -that he has passed the examination for pilotage exemption some years ago, and has taken pnins to keep his information up to date as far as possible; but he could not have the experience of a pilot, whose daily business was to take ships up and down the harbour. He had bean away for many weeks ; he knew the chau- ' nol " wo.s never anything but a silting one," and had not had the opportunity of reading the reports for the preceding nionth ; he was coming up to the most difficult part of a difficult channel; hence the amount of care which he was bound to take was greater than it would have been in almost any other combination of circumstances. In the second place, the counsel for the defendants has been obliged to adTnit that he can only claim that ordinary care is sufficient, if it is held that the cause of his being placed in the difficult position was one wholly beyond his control; in other words, if -tho court should be of opinion that the reason why the Wakatipu did not obey her helm was that she passed over an unknown shoal. As the court does not hold that view the contention falls to the ground. It must be remembered that this is not a case of criminal liability, or even of the forfeiture of a certificate, in which it might be the duty of the court to take a lenient view. The only question here to be decided is whether the loss of the Laira shsvll be borne by her owner, who is in no way in fault, or by the owners of the vessel which ran her down. As the defendants have failed to prove that the accident was inevitable, I hold that the loss must fall on them. In this view I am fortified by the concurrence of both the nautical assessors. Mr Hosking said it seemed necessary that a minute should follow on the decision, the form being given in the Vice-Admiralty rules. After some discussion, it was arranged that the preparation of the minute should stand over. Mr MacGregor suggested that the accounts and vouchers for the assessment of damages should be filed in the ordinary way. Mr Solomon thought that every question in tho assessment of damages could stand over save one, and that was the value of the vessel. That was not a question of accounts and vouchers, and counsel submitted that it could be tried on the following day, when his Honor coul.i have the assistance of the assessors. Mr MacGregor said that defendants would in that matter require a witness who was in Wellington, so that it could not be taken next day. I.n the event of either party desiring to appeal, counsel continued, the rules provided that his Honor should fix the amount of security. His Honor: It is at your option either to go to tho Court of Appeal or to the Privy Council. Mr MacGregcr: Yea. His Honor observed that the amount of security might have to depend upon the defendants election in that respect. It was agreed that the consideration of that matter, with others, should stand over.

'At Arrowtown Mr M'Carthy, S.M., fined D: Richardson, jun., the holder of a publican's license, £6 and costs for permitting billiards to be played after hours. He ordered -the license to be endorsed. Mr Turton, for the defendant, gave notice of appeal. The Hospital returns for the week are as follow: — Patients remaining from the previous week, 106 ; admitted during the past week, 20 ; discharged, 16. Lang Dan, William Vareoe, George Gowdy, and Beatrice Wratten died in the institution during the past week, and the patients remaining number 106. The first meeting of the old boys of the George street School was held in the school on Thursday night last. There was a capital attendance, and Mr A. White was in the chair. It was decided to call a meeting at a future date, which will be duly advertised, and all old boys are cordially invited to attend. A committee was formed, and Mr P. Boyd elected secretary, so that any old school boys who wish to assist in forming a club may ' communicate with him-