Kolturuswami v. Veeravva

The assessors in an appeal court are not substituted for those consulted in the trial court; they are <nlditional to them; and if one adviser or two advisers are to be p,refcrrcd, it is because in the judginent of the court the advice given is such as, in itself, is the more acceptable. The relevant articles of the Regulations of 19ro, made under 1 h~ Merchant Shipping Act, 1894, arc set out in the judg ment. Cn.-u, APPELLATE JURISDICTION: Civil Appeal No. 229 \ ,f 1954. Appeal from judgment and decree dated February 28, 1952, of the Bombay High Court in Appeal No. 34 of 1952, arising out. of the judgment. and decree dated February 5, 1951, of the said High Court in Admiralty Suit No. 1 of 1943. s. [(. Das J. S. O. Isaacs, P. N. Bhagwati, S. N. Mukherjee and B. N. Ghosh, for the appellants. E. E. Jhirad and T. M. Sen, for the respondent. 1959. January 12. The Judgment of the Court was delivered by S. K. DAS, J.-This appeal on a certificate given by the High Court of Judicature at Bombay is from the decision of a Division Bench of the said High Court in Appeal No. 34 of 1951, da.ted February 27 and 28, 1952, by which it reversed the decision of a single Judge of the said High Court in Admiralty Suit No. 1 of 1943 dated August 8, 1950. The appellant., Asiatic Steam Navigation Company Ltd., is a company incorporated in the United King dom with its registered office in London and has an office in Calcutta. The respondent i.s ex-Sub-Lieute nant Arabinda Chakravarti, who at all material times was a commissioned officer in the then Royal Indian Navy with its headquarters at Bombay. The action which the appellant brought arose out of a collision in 982 SUPREME COURT REPORTS [1959] Supp. n, 1 5 -:--;-: '959 a swept channel, a little distance outside the Madras harbour, on December 13, 1940, at about 6-51 p.m. ;.~;~:;io:••m The two ships concerned in the collision were the ca .. Ltd. cargo vessel, S. S. Nizam of 5,322 gross tons and H. M. S. Ka/,awati, a patrol ship of 1,185 tons. For v. Sub-Lt. Arauinda the sake of brevit.y and convenience, these two vessels Chakrnv•rli will be referred to in this judgment as the N izam and s. K. va, J. Ka/,awati. At all material times, the appellant owned the Nizam and the respondent, it was stated, was one of the officers in charge of and responsible for the navigation of the Kalawati . One F. C. H. Mason was the Chief Officer of the Nizam and the Master was Malcolm John McLure. Henry Lee was the Comman der of the Ka1awati and Arabinda Chakravarti, as stated above, was one of the officers in charge of and responsible for the navigation of the Kalawati at the relevant time. The case set out by the appellant in the plaint was this. On December 13, 1940, in the afternoon the Nizam, which was then under charter to the Ministry of Shipping, left Madras harbour bound for Calcutta carrying a cargo. She was then tight, staunch, strong, well manned and in every respect sound and fit. A few minutes after 6-45 p.m. when the weather was fine, clear but cloudy, the moon full, the wind moderate, the sea calm and the set of the tide from north to south, the Nizam was being navigated in a swept channel outside the Madras harbour. The swept channel was approximately about one mile wide and seventeen miles long. The Nizam was heading for the open sea on her proper course to Calcutta and was being navigated in a proper and seamanlike manner and was on her proper, namely the starboard side of the channel. The Kalawati was on an opposite course making for Madras harbour. The Nizam having the Kalawati about one point on her starboard bow star. boarded with the result that the two vessels were about one mile apart on courses which would result in their passing from port to port with a distance of about half a mile between them. At that time, the Kalawati made a " light " signal to the Nizam ; the signal was not legible and the N izam sent a signal • I (1) S.C.R. SUPREME COURT REPORTS 983 x959 . II h • . Chakravatli h N. s. f{. Das J. Navigation co., Ltd. . v. to port ; thel'eafter, Sub-Lt. Arabi~da which asked for a repetition of the signal of the Kala- wati. The N izam continued hard to starboard, but The Asiatic Steam the Kalawuti altered course to port with the result that the Kalawati wa.s converging on the course of the Nizam. The Nizam continued to go fltarboard and the Kalawati . d w en a co 1s1on seeme very immment, t e was put full speed astern, but the Kalawati was navi- gated across the bows of the Nizam and the result was that the starboard quarter of the Kalawati came into collision with the bows of the Nizam. The Kala- wati then pivoted round the bows of the Nizam and again came into collision with the latter. After alleg- ing the facts stated above, the appellant pleaded in the plaint that the collision was ca.used by the negli- gent navigation of the Kalawati and the following particulars of that negligence were given: (a) altera- tion of the Kalawati's course to port so as to t&ke her a.cross the bows of the Nizam; (b) failure of the Kala- wati to stop or to go a.stern and/or to put her helm ha.rd a-starboard when there was yet time for her to do so and avoid a. collision; (c) in breach of the Regu- lations for the Prevention of Collisions at Sea the Kalawati failed to keep to her proper side, namely, the starboard side of the channel, when it was her duty to do so, and further the Kalawati failed to keep out of the way of the Nizam when it was her duty to do so and (d) a proper look-out was not kept on board the Kalawati. The total claim which the appellant preferred for the damage sustained was a sum of Rs. 88,000 ·and odd and particlars of the claim were set out in sch. B of the plaint. In his written statement the respondent denied any liability for the damage sustained by the Nizam. The case of the respondent as set out in his written state ment was, to put it briefly, this. The re&pondent said that at about 6-45 p.m. on December 13, 1940, he was the officer on watch and the Kalawati was steering a course north 800 west keeping to the Kalawati's proper side of the channel. The N izam was sighted at about that time, about 20' on the port side and about 2i miles away, heading for the open sea and • ' 984 SUPREME COURT REPORTS (1959] Supp. e ChakravarU s. K. Das J. '959 Th A -:--t. st sia ic Novigation Co., Ltd. v. steering eastwards and running a parallel and op- posite course. Due to certain wartime regulations, the . lights of both the vessels were blacked out. Accord. ing to the courses which the Nizam and the Kalawati were then pursuing they would have passed each Sub-Lt. Arabinda other clear port to port and the respondent signalled to the N izam with a portable Aldis Lamp and asked for her identity. The Niiam replied with one long flash indicating that she was ready to receive signals from the Kalawati. As the respondent was about to continue signalling, he noticed that the Nizam altered her course to port in such a. manner that she was converging on and crossing the course of the Kalawati. The respondent then stopped signalling and a.s the Nizam continued on the wrong course ta.ken by her until her bows were fine on the port bows of the Kalawati, a collision seemed imminent, the two vessels then being about two cables a.pa.rt. In order to avert the imminent risk of collision the respondent ordered the Kalawati to be put ha.rd· aport and simultaneously indicated to the N izam the a.Iteration of the Kalawati' B course. The Nizam, however, instead of keeping to the course already ta.ken by her and passing the Kalawati on the-;itarboard side, erroneously attempted to correct the earlier wrong course ta.ken by her and attempt ed to go back to her proper side of the . channel. The N izam then altered her course to ha.rd star boa.rd with the result that the two vessels were in such a position that it was not possible to avert a. collision either by slackening the speed of the Kalawati or by going In substance, the case of the respondent was astern. that the collision was ca.used by the circumstances (a) that the N izam failed to keep to her proper side of that she continued to port in such a the channel, (b) manner a.s to put the Kalawati in a perilous position and the Kalawati had to take avoiding action and finally (c)' the Nizam was negligent in altering her course to hard astarboard after being made a.ware the Kalawati had repeatedly that the course of to port. Therefore, according to the been altered respondent, the action of the N izam in steering star board after Kalawati had ta.ken port action, was the proximate and effective cause of the collision. (1) S.C.R. SUPREME COURT REPORTS 985 On the pleadings stated above, several issues were r959 framed but the principal question for decision by the The Asiat"c Steam learned trial Judge was if it was the negligent action of the Nizam or of the Ka'lawati which caused the collision. Issues 1, 2 and 3 were the issues which related to this question. A further question was raised Sub-Lt. Arabi~da by issues 4 and 6 and that related to contributory negligence, and in case it was found that both the s vessels were to blame for the collision, the question raised was in what proportion the negligence of the Nizam and of the Kalawati contributed to the colli- sion. The learned trial Judge found in favour of the present appellant on the principal question and ex- pressed his finding in the following words :- Navig:tion Co., Ltd. v. Chakravaro • K. Das • 1 "I' have come to the finding that the first helm action was taken-and rightly taken-at the crucial time by the Nizam going hard a.starboard, and the Kalawati turned to port when there was no question of the imminence of any collision. . ........ In these circumstances, as a standing on vessel the Kalawati to port and turned - and wrongly in my opinion - but for her turning to port, there was no question of the two vessels coming .into a perilous position. In these circumstances, I am of the opinion that the Nizam was justified in starboarding. The Kalawati had to keep her course under the rule being a standing on vessel, and should have maintained her course in that manner until the last safe moment, but to my mind she turned to port much before any such occasion arose. On this point, I may say that had the Kala wati to take any action at all, the normal action would have been going to starboard, and this would have completely a.voided the collision. On this point I may state that the nautical advisers whom I have had occasion to consult are in agreement with the view I am adopting. I may also state that in my opinion the Nizam put its engines full speed astern a.t the earliest opportunity, looking to the situation. The Nizam was put full speed astern at least 2i minutes approximately before the collision took place, and even if the statement of 124 ,• 986 SUPREME COURT REPORTS [1959] Supp. n 5 r959 A -. -. S. K. Das ]. co, Ltd. v. Cha.\.-avai-ti was fundamentally wrong for McLure that she was dead slow before the collision is a slight overstatement it must follow that the back of 'N;::;;,;0~'"mthe momentum of the Nizam hadalready been wholly broken and there is evidence that she was doing about 3 to 4 knots instead of her 9 to 10 knots normal speed. Sub-Lt. Arabinda On the other hand, I am clearly of the opinion that it the Captain of the to put her engines full speed astern Kalawati not In immediately he saw the l!itua.tion was perilous. fact, instead of doing so, he went full speed ahead. To my mind, that was not only a wrong judgment but a judgment inspired by desperation, namely, that by putting them full speed ahead, with a bit of luck, he would have cleared himself of the DOie of the Nizam. I have, therefore, come to the conclusion that the Kalawati wrongly altered her course at the moment when she did, and if any step had to be taken she should have altered not to port b11t to starboard, and if any other action was necessary, she should have put her engines full speed a.stern." In view of the aforesaid findings, the learned trial Judge expressed the view that the question of coutri· butory negligence did not a.rise, as also the question in what proportion ea.ch contributed to the collision. The question of damages was, by agreement, held over until the findings on the question of negligence and, after the learned trial Judge had given the necessary findings on the question of negligence, the damage sustained by the N izam was assessed at Rs. 76,893-2-8 and a decree waR passed for that a.mount with interest thereon at four per cent. per annum from June 19, 1941. The respondent then preferred a.n appeal and the appeal was heard by Cha.gla., C. J., and Bhagwati, J. Like ,the trial Judge, the Judges who heard the appeal also had the assi"tauce of. two assessors. On principal question as to whether the collision wa11 caused by the negligent action of the N iuim or of the Kalawat·i, the learned Judges who heard the appeal reversed t.he findings of the learned trial Judge. They said: "Tlwrl'fol'c, in our opinion, on this evidencf!, we (1) S.C.R. SUPH.EME COURT HEPOHTS 987 l h d Chakravarti l "k l S. R. Das]. z959 , -. -. ,, ''e as1at1e ,,.awm. Naviaatio" co .• ~u.1. v. must find as a fact that the N izam did not alter her course to starboard at 6-45 p.ro., but she did so much r' h 6 48 I p.m. w en s e gave one atcr an very I ·e y at - blast to indicate the change of course. Now, if that i:-; the fact we find, we have to consider what bearing that finding of fact has upon the question of the 'iu 11-Lt. Arabir.<1;1 defendant's negligence. The question is whether the defendant was justified in turning his ship to port at 6-48 p.m. if at t iat moment the N izam was still steering to port. The question is whetper at 6-48 p.m. there was a reasonable probability of a collision which justified the Kalawati in changing her course to port in order to avoid that collision. We have the plan before us and we have the evidence before us, put as this question of fact involves a question of nautica.l skill we have availed ourselvtJs of the assistance of is emphatically the assessors. Commander Kale of the opinion that at 6-48 p.m. if the N izam was pursuing the same course that she was doing from 6-38 p.m., there was a reasonable probability of a collision which it was the duty of the defendant to avoid as best as he could, and according 1.o Com- mander Kale, the only way he could have. possibly avoided it was by steering his ship to port. Capt. Malcolm does not agree with this view. He takes the view that the Kalawati should have raLher turned to stal'board than to port, and his opinion is based on the consideration that the Kalawati should have assumed that at sometime or other the Nizam would turn star- board and taking that possibility into consideration she should have gone to the right side and not to the wrong side. With respect to Capt. Malcolm, we are inclined to prefer the opinion given by Commander to what should have been done under the Kale as the Nizam was the" giving circumstances ... Now, as way" vessel, there was the primary obligation upon her if necessary to stop the ship or to go n.stern, and on the evidence it is difficult to resist the conclusion that the order to go full speed astern, could have been given earlier either by the Captain himself or by Mason. On this point both the assessors have ex- pressed their opinion that as a matter of naucical skill 988 SUPREME COURT REPORTS [1959] Supp. Th A e 1959 -:--,. 51 sia tc Navigation co .. Ltd. v. it would have been possible and indeed it should ha.ve been done, viz., that the ship should have been ordered . to go full speed astern earlier than 6-49 p.m. In our opinion, therefore, there a.re these two facts which have definitely contributed to the collision Sub-Lt. habinda taking place at 6-52 p.m. The first is the failure on the part of the N izam to give the signal that she was Chakravarti s. K. Das 1. going starboard, even assuming that we accept the plaintiffs' case that she starboal'ded a.t 6-45 p.m. If she had given. the signal then it would have given proper and full warning to the Kalawati as to what the Nizam was doing or going to do at that momeut. The other fact which has also contributed in our opinion to the collision is the failure on the pa.rt of the Nizam to go full speed a.stern earlier than 6-49 p.m." In the result, t.he appeal was allowed a.nd the action of the appellant was dismissed with costs throughout. r We have already stated that the High Court of Bombay gave a certificate of fitness under Art. 133 of the Constitution and the present appeal ha.s been brought to this Court in pursuance of that certificate. Two assessors, Capt. J. A. Cleeve and Commodore A. K. Chatterjee, have assisted us. At the very out. set, it is necessary to clarify two points. Firstly, it appears that the learned Judges who heard the appeal in the Bombay High Court did not base their findings on the evidence of the respondent or his witnesses; nor did the learned trial Judge attach any great importance to the evidence of the respondent or his witnesses. The learned Judges said:- " We do not blame the learned Judge because, when the evidence of both these witnesses was laid before us, we also felt that the evidence was not given in a manner which would inspire confidence." Learned counsel for the appellant has placed before us in full the evidence of the appellant and its witnesses. He has also placed before us such portions of the evidence of the respondent and his witnesses as, in his opinion, support the case of the appellant. In arriving at our conclusions we have also proceeded on the foot ing that as the courts below did not consider the evidence of the respondent's witnesses to be reliable, (1) S.C.R. SUPREME COURT REPORTS !J89 ·· . k d h Jd u ge too one view o t a ev1 ence an the principal question of negligence must be decided '959 on the evidence of the appellant's .witnesses. The trial r' A-_-_ 5 fh t "d siatic Jd t e u gos Navigation co., Ltd. who heard the appeal took another view. There being no concurrent finding~, we allowed learned counsel for v. the appellant to place the entire evidence of the appel- Sub-Lt. Arabinda lant's witnesses before us in support of his contentions. The other point relates to the assessors. It has not been disputed before us that the function of nautical s. K. Das J. assessors is to advise the court upon nautical manners and as Scott, L. J., said in The Olan Lamont.('): Chakruva>ti "' · " •.....•..... their ad vice is expert evidence, admis sible in Admiralty Courts, on all issues of fact about seamanship." The de~ ision of the case, however, rests entirely with the court and even in purely nautical matters the court is not bound to follow · the ad vice of assessors, but on questions of nautical science and skill great attention must obviously be paid to the opinion of the assessors since they are the only source of information on these points and some reason should be given for disregarding them. In the Australia(') Lord Dunedin deprecated putting to assessors a question that is tantamount to asking them whether they would find for the plaintiff or the defendant and repudiated the. idea that the views of the assessors in an appeal court are entitled to more respect than those of assessors below. The assessors.in an appeal court are not sub stituted for those previously · consulted; they are additional to them; and if one adviser or two advisers are to be preferred, it is because in the judgment of the court the advice given is such as, in itself, is the more acceptable. There can be no question of any appeal from one set of assessors to another. \Ve have followed the same principles with regard to the advice of the assessors given in this case and we shall refer to such advice in the course of this judgment when it has a hearing on the questions at issue before us. The principal point for determination in this case is which of the two, the Nizam or the Kalaicati, was (1) (1946) 79 LI. L. Rep. ,521, 524 (Lloyds List Law Reports). - (2) [1927] A. C. 145. '. -- 990 SUPltEME COURT REPORTS [1959) Supp. t 1 . .h . . . t' d t f th Chakravarti or a e ermma 10n o 1 959 . . e Asiatic Steam F N avigvtion co:, Ltd. v. responsible for the collision; and if both were respon- sible, what is the extent of the responsibility of ea.ch ? . ese questions 1t 1s necessary first to find what courses the aforesaid two boats were following at the relevant time and what changes of Sub-Lt. habinda course were made by them. These facts have to be determined first and in doing so we must keep in mind some of the Regulations made under the Merchant s. K. Das J. Shipping Act, 1894. It h~s been admitted by counsel for both parties that these H.egulations apply, and we are concerned with the Hegulations of 1910, namely, those made by an Order in-Council dated October 13, 1910. They embody rules which were to be followed at the relevant time by all vessels upon the high seas, and in all waters connected therewith, navigable by sea-going vessels. Articles 17 to 27 of the 1910 l~egu­ lations relate to steering and sailing rules. Article 17 applies to sailing vessels, and Art. 18 to steam vessels. Article 18 says in effect that when two steam vessels a.re meeting end on or nearly end on so as to involve risk of collision, each should alter her course to star. board so that each may pass on the port side of the other. Article 19 is in these terms: Art. 19. " When two steam vessels a.re crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other." The vessel which has to keep out of the way of the other is called the " give way " vessel and the other is ca.lied the " standing on " vessel. In the case before us there is no dispute that the N izam was the give way vessel and the Kalawati the standing on vessel. Article 21 · has some bearing 011 the question at is>uo before us and is in these terms : Art. 21. " Where by any of these ltules one of two vessels is to keep out of the way, the other shall keep her course and speed." Article 23 says : "Every steam vessel which is directed by these Rules to keep out of the way of another vessel shall, un approaching her, if.necessary, slacken her speed or stop or reverse." I (1) S.C.R. SUPREME COURT REPORTS 991 t1am 1 ns1a1tc r959 , ~ 5 NaviKatio" co., I.td. v. Sub-Lt. Arabi"d" Cltaltravarli 5 • K. Das 1 • Article 24 sa.ys inter alia that notwithstanding a.ny- thing in the Rules, every vel!Sel overtaking another Th k 1 shall keep out of the way o t e overta en vesse . Article 25 is very important for our purpose, as learn- ed counsel for the a.ppella.nt ha.s pla.ced great reliance on it. This Article must. be quoted in extenso. f h 1 Art. 25. " In narrow channels every steam vessel shall, when it is sa.fe and practicable, keep to that side of the fairway or mid-channel which lies on the star- board side of such veB&el." There ha.s been considerable difficulty in defining a "narrow channel", and in the trial court the present respondent denied that the awept channel outside the Madras harbour was a narrow channel within the meaning ·Of Art. 25 aforesaid. The courts below pro ceeded, however, on the footing that the channel in question was a narrow channel within the meaning of the said Article and we have also proceeded on the same footing. Article 27 is t.lso important for our purpOse. It says: Art. 27. "In obeying and construing these Rules, due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the a.hove Rules neces sary in or<ler to a.void immediate danger." Art.icles 29 a.nd 30 are two 1·esidua.ry Articles. Article 29 inter alia says that nothing in the Rules shall exonerate any vessel from the consequences of any neglect to keep a. proper look out or of the neglect of any precaution which may be required by the ordinary pra<:tice of sea.men, or by the special circumstances of the case, and Art. 30 says that nothing in the Rules shall interfere with the operation of a special rule, duly ma.de by a. local authority, relative to the navi gation of any harbour, river or inland waters. We proceed now. to a consideration of the evidence with regard to those facts on which the determination of the question of negligencEl depends in this case. We do not propose to embark on a. very detailed third review of the evidence given in the case, but shall con fine ourselves to those salient points which, in our view, arc determinative of the principal question at 992 SUPREME COURT REPORTS [1959] Supp. r f h "d r959 Chakravarti oviga ion co., Ltd; v. issue between the parties, namely, that of negligence for the collision which took place at about 6.51 p. m. The NAsfat;',. Steam on December 13, 1940. We shall for that purpose re1er to t e ev1 ence o Mason, McLure and Abdul N abi, three witnesses for the appellant. As to the Sub-Lt. Arnbinda effect of the evidence of these three witnesses, the learned Judges who heard the appeal in the Bombay High Court came to conclusions different from those s. f(. Das 1 · of the learned trial Judge and one of the points for our consideration will be if the appellate Court gave good and convincing reasons for differing from the view of the evidence which the learned trial Judge took. It may be stated here that the aforesaid three witnesses were examined by Blagden, J., in April, 1945, and February, 1946, and that learned Judge made some notes as to the manner in which the three witnesses gave their evidence. Our attention has been drawn to those notes by learned counsel for the appellant. Blagden, J., however had ceased to be a Judge of the Court before the suit was tried. The respondent and his witnesses were examined in 1950 by Coyajee, J., who tried the suit and gave judgment in favour of the appellant. It appears from the evidence that at about 4-45 p.m. on December 13, 1940, the Nizam took the pilot on board and proceeded to sea. At about 5-22 p.m. the pilot was dropped and she proceeded at full speed under McLure's orders up the swept channel, the speed being about 10! knots. McLure handed over to Mason at about 5-55 p.m. and the Nizam was then steering a course north 86° east, making some allow ance for the leeway to port for the set of the tide from north to sOLith. At about 6 p.m. the third officer re the bridge at lieved Mason; Mason returned 6-30 p.m. and took over from the third officer. Mason said that be had checked the bearings of the Nizam just before he left the bridge a.t 6 p. m. and she was then two ca.hies on the proper side of the channel. Soon after 6-30 p.m. Mason saw a vessel about two points on the starboard bow of the Nizam at a. dis tance of about three miles. Mason's evidence was that he thought then that the Nizam was overtaking t t • ~ (1) S.C.R. SUPREME COURT REPORTS 993 1959 s. K. Das J. Navigation Co., Ltd. v. S<1b-Lt. Ar.1bi11da Chakrava,ti that other vessel which must have been the Kalawati. At 6-38 p.m. Mason altered the course of the N izam ne Asiatic Steam 8° to port, because he thought that the Nizam and the Kalawati were on converging courses. At 6-43 p.m. the look-out on the Nizam rang the bell twice i11dicat- • mg a. vessel viz. the Kalawati on the starboard side. Mason then said that at about 6-45 p.m. the Kalawati was about one mile on the Nizam's starboard bow and was clearly seen to be crossing to starboal'd port. The Kalawati then ma.de an .Aldis lamp' signal and Mason replied I.M.I. with a torch which asked for a. repeti- tion of the signal. Mason then ordered ha.rd a.star- board; he did this because under certain wartime orders a merchant vessel had to turn away from any ship that signalled. At 6-47 p.m. the Kalawati was several points on the port bow of the N izam and near the Kalawati altered her course to a.bout 6-48 p.m. port and indicated the alteration by two short blasts. Mason replied by one short blast indicating that the Nizam was turning to starboard. At a.bout 6-49 p.m. McLure came on board and he rang full speed astern. By about 6-51 p.m., however, the collision took place. The above gives in brief a. summary of the events which, according to Ma.son, to the collision. McLure's evidence was that he returned to the bridge at about 6-48 p.m. on hearing two short blasts from the Kalawati, and on coming to the bridge he saw that the Kalawati was turning to port. McLure at once ordered full speed a.stern and ca.used three short blasts to be given; but the collision occurred within about two minutes. Abdul Na.bi was the Quarter Master of the N izam. His evidence was to the effect that Mason ca.me on the bridge at about 6-30 p.m. and at that time the N izam was steering a course north 86° east. At about 6-40 p.m. (Abdul Na.bi said that it was ten miriutes after Mason came on the bridge) he received an order to steer 8 ° to port and he did so. Some five or ten minutes after he received another order to go to starboard, that is, to the Nizam's former course. Then came the la.st order to hard a.starboard and this was at about the time when Abdul Nabi heard two 125 994 SUPREME COURT REPORTS [1959] Supp. '7959 -. -. bla~ts from the Kalawati. It may be here remarked that Abdul Nabi's evidence differs essentially from Th•NA"~'",. 5''"mthat of Mason as to the time when the Nizam went t aviga ion co .• Ltd. v. hard a.starboard and also as to t e sequence o events which led to the alteration of the Nizam's course from Sub-Lt. Arabinda north 86 ° east to 8 ° port first, then to her former course and then again to hard a.starboard. We shall later return to these discrepancies. Chakravarti h f s. K. Das J. The three circumstances, however, which stand out from the evidenc~ of Mason are-(a) that the Nizam was on the proper side of the channel at about 6-45 p.m.; (b) she turned to ha.rd a.starboard at about r 6-45 p.m. in order to present her stern to the Kalawati in compliance with certain wartime orders; and (c) the Kalawati turned to port at a.bout 6-48 p.m. after she had seen the N izam turn to ha.rd a.starboard some three minutes earlier. If Mason's evidence is correct with regard to the aforesaid three circumstances and the Kalawati turned to port after she had seen the N izam turn to ha.rd astarboard and if at the time the Kalawati. was on the wrong side of the channel, then there can be very little doubt as to where the responsi- bility for the collision should lie. Coyajee, J., accept- ed Mason's evidence with regard to the aforesaid three circumstances and held that the responsibility for the collision lay on the Kalawati, because she turned to port at the time she did after having seen the Nizam turn to hard a.starboard some three minutes earlier. The learned Judges who heard the appeal did not accept as correct Mason's evidence that the Nizam turned to hard a.starboard at about 6-45 p.m. in order to present her stern to the Kalawati ; on the contrary, from the evidence of McLure and Abdul Na.bi read with the evidence of Mason, they ca.me to the conclu sion that it was impossible to accept the appellant's case that the Nizam turned starboard at 6-45 p.m. and it was more likely that she turned to starboard at about 6-48 p.m. after she had heard the signal of the Kalawati that she ~was turning to port. In other words, the learned Judges found that the Kalawati had turned to port first in order to avoid an imminent risk of collision and it was then that the N izam ~ t \ - , ~ (1) S.C.R. SUPREME COURT REPORTS 995 z9s9 The Asia;. Steam N•vigation - co., Ltd. . v. altered her course to starboard in order to get to the ~ proper side of the channel. ' l . Chakravarti s. K. Da$ J. The question before us is which of these two views is correct. On a careful consideration of the evidence and the submissions made thereon by learned counsel for the parties we are of the opinion that the view of Sub-Lt. Arab•~•da the earned Judges who heard the appeal 1s the correct view. According to the evidence of Mason, he checked the bearings of the Nizam before he left the bridge at 6 p.m. and on checking the bearings from the Madras Light House and a. conspicuous white house on the north side of the harbour, he found that the Nizam was two cables on the proper side of the channel. It appears that there should have been a dan buoy in mid-channel to mark the mid-line. Mason said that he looked for it, but did not find it. There was a fair- way buoy at the end of the channel, that is, near the mouth of the channel from the open sea. It is not disputed that the Kalawati entered the channel south of the fairway buoy and was at the time of the entry into the channel on the wrong side. The question, however, is what was the position of the two boats at the relevant time, namely, at about 6-45 p.m. when the distance between the two boats was about a mile or so. Mason's evidence itself shows that at about 6-45 p.m. both the boats were near about the mid-line of the channel. It is to be remembered that though the N izam was about two cables on the proper side of the channel at about 6 p.m., she had altered her course 8° to port, even according to Mason, at about 6-38 p.m. Abdul Nabi's evidence indicated that the N~zam had altered her course to pOI't by about 10°. Even allowing for the set of the tide, if the Nizam had continued in her port course in order to overtake the Kalawati (as Mason was then under the impression that the N izam was overtaking the Kalawati), she would cross the mid-line and go into the wrong side of the channel. It is worthy of note that in the plaint there was no mention of the circumstance that the N izam altered her course to port in order to overtake the Kalawati, on the wrong impression that both the bua.ts were go_ing in the same direction. But be that 996 SUPREME COURT REPORTS [1959] Supp. z959 Navigation co., Ltd. v. m Tha. Asiatic Steam h.er COdur.se tho port at aboiJult 6b·38 p. , 8 4 6 · a out as it may, it is quite clear that the Nizam did alter and if hshe con d. 1 p.m., s e wou tmue m t at course t be near the mid-line of the channel or just across it at the relevant time. Mason admitted this and said in Sub-Lt. Arabinaa cross-examination : " At 18-45 I was just about in the Ch•A•••••li mid-channel and the Kalawati was then steering a s. K. Das 1. crossing course". Mason prepared a chart to show the position of the two boats and this was marked as Ext. A. This chart also showed that at about 6·45 p.m. the Nizam was on the mid-line and if the Nizam had continued her port course she would be on the wrong side of the channel at about 6-48 p.m. Even though the Kalawati had entered the channel south of the fairway buoy, which was her wrong side, she was steering a course north 80° west, making an allowance for a southerly drift of about 1 or I ·5 knots. By steering that course the Kalawati would also be near the mid-line of the channel at-about 6-45 p.m. She would be on her right side of the channel at 6-46 p.m. This is also made clear from the chart, Ext. A. Learned counsel for the appellant repudiated the correctness of the chart, Ext. A, but it is a chart pre pared by his own witness and so far as the position of the Nizam was concerned, the chart must have been prepared on the position and course of the Nizam as given by the appellant's own witnesses. We see no good reasons for discarding the chart, Ext. A. At our request the assessors also prepared a chart showing the position of the two boats on the following assumptions: (a) Nizam's speed about 10·2 knots, (b) J(alawati's speed a-bout 11 knots, (c) the set of tne tide about ·71 knots and (d) length of the swept chan nel about 18 miles. This chart also showed that at about 6-45 p.m. the Nizam was on the mid-line and the Kalawati had crossed the mid-line into her right side of the channel. If the set of the tide was two knots or three knots, I'S some of the witnesses said, then both the Nizam and the Kalawati would be out side the swept channel, and if the Kalawati was sight ed two points·on the starboard bow of the Nizam she would be further south of the southern limit of the t f . ; (l) S.C.R. SUPREME COURT REPORTS 997 - Chakravarti S. K. Das]. b h h b swept channel. On a 1onsideration of the evidence I959 in the case it appears to us that at the relevant time, Th A-.-. • 5 siallc h namely, 6-45 p.m., ot t e oats were near about t e Navigation co., Ltd. mid-line, may be a little on the right or wrong side of it, and the distance between the two boats was v. a.bout one mile at that time. The very elaborate Sub-Lt. Arabinda argument of learned counsel for the appellant based on Art. 25, which requires every steam vessel in a narrow t:ha.nnel to keep to the starboard side of the channel, loses much of its force when we remember that at the relevant time the two boats were near the mid-line of the channel and, according to Mason, the Kalawati was then crossing to starboard port. One of the assessors, Commodore Chatterjee, gave as his opinion that if the Kalawati was coming from the south, it would be easier for her to enter the channel south of the fairway buoy and he would not consider it as a breach of the. rules of the road unless the Kalawati was embarrassing another ship coming out of the channel. Capt. Cleeve said that as a merchant ship captain he would never ~o it, but as a naval ship c~ptaiQ he might do it and although it might be against the spirit of the regulations, it would not be a breach of them. It is to be remembered again that the Kalawati entered the channel at about 6-25 p. m. and at the time the N izam was about seven miles away. We do not, therefore, think the circumstance that the Kalawati entered the swept channel south of the fairway buoy decisive on the issue of negligence. As we have remarked earlier the decisive question is what was the position of the two boats at the relevant time, namely, at a.bout 6-45 p. m.? The evidence leaves no room for any doubt that at the relevant time the two boats were near about the mid-line of the channel. The question is what happened thereafter? Mason said that from 6-38 to 6-41 p.m. he assumed that he was overtaking the Kalawati ; from 6-41 to 6-45 p.m. he was in two minds and when at 6-45 p. m. the Ifolawati signalled the N izam, then Mason came to know that the Ka'lawati was steering a crossing course. Mason said that he then changed to hard starboard. 998 SUPREME COURT REPORTS [1959) Supp. Th• A•;;;. 51 z9s9 This part of the evidence of Mason is flatly contradict- ed by Abdul Nabi and is further not supported by Navii•tio• ,.,,. several circumstances to· which we shall presently co., LJ4. refer. It is true that none of the witnesses gave the time with the precilion of a watch and what they •· 5 •h-l.i. Ar•bi""• said about time was more or less approximate. Abdul Chak•••••li Nabi was, however, very definite that Mason first s. x. Dru 1. ordered the Nizam to steer 8° to port; then there was a second order to go to the former course and lastly there was an order to go hard astarboard. If Abdul Nabi is telling the truth, then even making due allow ance for the approximate nature of the times which he mentioned, the evidence of Mason that he changed the course of the Nizarn to hard astarboard at about 6-45 p.m. cannot be correct. Then, take the following circumstancea one by one. If Muon had changed the courae of the Nizam to hard utarboard, why did he not give a 1ignal to indicate the change of course ? The evidence is very clear. on this point. It was the Kalawati which gave two short blasts at about 6-48 p.m. to indicate that she was changing to port. There- after the Nizam replied by one short blast indicating that she was changing to starboard. If the Nizam had changed to starboard three minutes earlier, why was no signal given ! It is necessary to refer here to Art. 28 which says that when vessels ate in sight of one another a steam vessel under way shall indicate the course taken by her. Mason madiw an attempt to say in his evidence that Art. 28 was not adhered to in wartime; but then he had to admit that only a few minutes after, the Nizam did give one short blast in reply to the two short blasts of the Kalawati. It is obvious that Art. 28 was not abrogated during war- time and it was the duty of the Nizam to indicate by one short blast that she was changing to starboard, if she actually did so at 6-45 p.m. We are, however, . of the opinion, in agreement with the learned Judges of the appellate Bench, that the N izam did not change her course to starboard at 6-45 p.m. as Ma.son wants us to believe; on the contrary, the N izam continued her port course till about 6-48 p. m. and she changed to starboard only after she had heard the two blasts from t t t (1) S.C.R. SUPREME COURT REPORTS 999 e - . . Chakravarlt S. K. Das]. the Kalawati. This, we think, is clear from two very '959 important circumstances. McLure admitted in his evi- Th A-:---,. sia tc 51 dence that at the speed and under the cond1t1ons pre- Navigation co., Ltd. vailing immediately before the collision, it would take the N izam about 2i minutes to swing 90° with her helm v. ha.rd over. If actually Mason had altered the course Sub-Lt. Arabi~da of the Nizam to hard a.starboard at 6-45 p.m., then she would be heading back towards Madras at the time when the collision took place. Even McLure said: "If Ma.son's statement is correct, I should have expected my ship to be heading at right angles to her former course." That was not, however, the position of the Nizam when the collision took place. The as- sessors were agreed that once the wheel had been placed hard starboard, it was not possible to put the wheel further to starboard. If actually more than five minutes had passed, after the N izam had been put hard starboard, she would be swinging starboard a.II the time and she would take a. turn of about 180° within five minutes. In any event, by about 6-48 p.m. she would be at right angles to her former course, as stated by McLure. We think that McLure's evidence on this point destroys the ca.se of Ma.son that he had altered the Nizam's course to hard a.starboard at 6-45 p.m. Then there is the second important circum- stance that McLure admitted that he knew nothing a.bout any helm action of the N izam from 5-55 p.m. to 6-48 p.m. McLure said : " First I heard at 6-43 p.m. two bells indicating an object on the starboard bow. I was still in my ca.bin at the time. I was reading Admiralty messages. I heard two blasts from the other ship at 6-48 p. m. I have no recollection of feeling any helm action of my ship before that. I immediately went up on the bridge. The N izam did not sound one blast till I had reached the top of the ladder. That would normally suggest that the Kalawati had turned to port first". McLure further said that when a ship alters course and signals, the alteration and the signal must be It would be surprising indeed that simultaneous. McLure would not notice the helm action to hard star board if actually the Nizam had been put hard 1000 SUPREME COURT REPORTS [1959] Supp. '959 • Navigation Co., Ltd. v. starboard at 6-45 p.m. The assessors were asli:ed Th• A;;;;. Steam abo~t this matter and Commodore Chatterjee said that if the helm was put ha.rd over, he would feel it even if he was asleep. Capt. Cleeve said that the master of a fast .ship would feel the helm action sooner than the Sub.Lt. Arabinda master of a slo. w ship, probably· twenty to thirty seconds sooner. McLure, however, felt no helm action s. K. Das J. at all up till 6-48 p.m. This also shows that the story of Mason that he changed the course of the Nizam to hard a.starboard at 6-45 p.m. was not correct. Chakravarti The reason which Ma.son gave for altering the course of the Nizam hard a-starboard at 6-45 p. m. was an alleged war-time order that a merchant vessel when challenged must turn away from the challeng ing vessel. This reason is far from convin-Oing. No such war-time order was produced in evidence. In Ex. C (Surveyor's report dated January 27, 1941) the reason for the starboard action was stated thus : - " At 6-45 p. m. the other vessel appea.rd to be about one point on the starboard bow and a.bout one mile distant and to be heading to cross the bows of s. s. "Nizam ". The helm put ha.rd a.starboard in order to pass astern of the other vessel." There was no reference to any wartime order or regu lation then. McLure said in his evidence : "The rule about turning away from 11 challenging vessel was a secret matter and I did not think it fit to mention it even to my Managing Agents. Mason told me he originally steered to starboard in order to pass port to port." Even Mason was far from being firm as to the reason which .Jed him to turn ha.rd a.starboard at 6-45 p. m. Having said that the only reason was the alleged wartime order, he changed and said that he turned hard starboard because he was dazzled with the Aldis lamp signal and the Kalawati was too close. He admitted that he knew then that the Kalawati was a. patrol vessel which was not hostile; yet he wanted to turn astern, as the Nizam had a gun mounted astern! Again, he changed and g~ve a third reason for going bard starboard, namely, ·be wanted to get out. of the way of the Kalawati. In this state of the evidence, it is (1) S.C.R. SUPREME COURT REPORTS 1001 impossible to place implicit reliance on Mason's evid- ence that he turned hard starboard at 6-45 p. m. for The Asiatic steam the reason that a so-called war-time order required him to do so. Learned counsel for the appellant drew our attention to the respondent's evidence on this "d pom . : "When a ship is challenged she gives her name Navigation Co., Ltd. v. ub-Lt. Arabinda 1; ' var d e respon ent sa1 · t Th Chak a 5 .r959 and turns round but not in the swept channel or in s. K. Das J. the harbour. , I do not agree that in the swept channel when a ship was challenged to give her name she would have I did state before the Marine Enquiry to turn round. that when a merchant ship is challenged she would turn a.bout necessarily by starboard movement and give her name and the turning about would be action preparatory to running away and that owing to war I say that I was these regulations were in force. trapped into giving answers by vague questions." We agree that the respondent's evidence is not very ingenuous; but it cannot be accepted as an admission which relieved the appellant from proving the exist ence of a war-time order or regulation of the kind and nature suggested by Mason in his evidence. Mason's evidence taken as a whole seems to indicate that the order to turn ha.rd starboard came m'uch later than 6-45 p. m. and the reason for the order was to get back to the right side of the channel and to get out of the way of the Kalawati, if possible. Unfortunately, the action was taken too late and after the Kalawati had already turned to port. ·On the evidence, we are unable to hold that the Nizam took starboard action before the Kalawati turned to port. The question now arises-why did the Kalawati turn to port at about 6-48 p. m. and in doing ao, did she commit an act of negligence or an act which in any way contributed to the collision ? On behalf of the appellant, it has been argued that even if we find on the facts that the Kalawati took port action first, this action was wholly unjustified and wrong and, in a.ny event, the Kalawati could and should have gone to starboard to avoid the collision; therefore, she was wholly to blame. Alternatively~ it has been argued 1a(i 1002 SUPREME COURT REPORTS [1959] Supp. ; r . I z959 - l K l Thi Asiatie Steam Nav;gation co., Ltd. v. Chakravarti 5 , K. Das J. he quest10n 1s-w y 1 t ie that she was mostly to blame and the blame should be apportioned. We shall deal with the alternative t argTument at. a ~ter sthaged"d .a .awati turn to por at about 6-48 p. m. ? We think that Mason's own Sub-Lt. Arabinda evidence furnishes an answer to the question. We know from the Kalawati's log book that she entered the swept channel at about 6-25 p. m. south of the fairway buoy and she was then steering a course of north 80° west; by about 6-45 p. m. she was on the mid-line of the channel when she sighted the Niz.am on the port bow. The Niz.am had already altered her course to port. Ma.son summarised the position at 6-45 p. m. thus : " At 18-45 she {meaning the Kalawati) was about one mile on my starboard bow and was crossing to starboard port." Capt. Clecve thus explained the meaning of the aforesaid statement: " That means that the distance between the two boats was one mile, and she (Kalawati) was a mile off to my (Nizam's) starboard bow and she was crossing from my starboard to my port. " Mason further clarified the position by saying that the two boats were then steering crossing courses and it was not correc.t_ to say that if both ships had kept their course and speed as it was at 6-43 p. m., they would have passed port to port. Mason also said that " the two boats were on converging courses at 18-45 hours ". Obviously, there would ha. ve been a collision, if no a.voiding action was taken by either boat. That is why Mason was at pains to point out in his evidence that he took starboard action at 6-45 p. m. to get out of the way of the Kalawati and if both the ships had kept their courses as they were immediately after Ma.son had starboarded at 6-45 p. m., they would have passed port to port with a.bout half a. mile to spa.re. We have found, however, that Mason's statement that he had starboarded at 6-45 p. m. was not correct. The position, therefore, was that the two boats were on f crossing courses in a narrow channel and when the Kalawati signalled with the Aldis lamp, she found that the N izam was still steering to port. The Aldis lamp has a small telescope attached to it and from a demon$tration made in Court., it became obvious that f r (1) S.C.R. SUPREME COURT REPORTS 1003 · t" h z959 • t"fi l Tb Cllallrava1ti s. K. Das J. Navigation co .• Ltd. . v. the respondent was in & po11ition to see through the telescope what coorse the N izam was taking. At Tll• Asiati& 51.,..,. about 6-48 p. m. the distance between the two boats was less than half a mile, and unless the Kalawati took a voiding action, a collision was imminent. There- fore the Kalawati took port action and indicated her Sub-Lt. habusda d · ' · b e JUS 1 ca. ion irection y t e necessary signs. . for the port action of the KaZawati was the continu- a.nee of the Nizam on a. port course-a. course which was not only ta.king the N izam over the mid-line into the wrong side of the channel but was also making her converge on the course of the Kalawati. The Kalawati was the standing on vessel, and it was the duty of the N izam to get out of the way. Ins~ead of doing th,at, the N izam persisted in her port course and· changed to hard starboard after the Kalawati had justifiably ta.ken port action to avoid an imminent risk of collision. It has been argued before us that the Kalawati should have anticipated that sooner or later the N izam would correct her mistake and go to the starboard side of the channel and, therefore, as the standing on vessel, the Kalawati should have kept her course and speed as required by Art. 21, and if she had done so, there would ha.ve been no collision. This argument fails to take note of the perilous position in which the Kalawati was placed by the con- tinuance of the Nizam in a port course till about 6-48 p. m. and furthermore ignores Arts. 27 and 29 under which when a vessel finds herself so close to another vessel that a collision cannot be avoided by the action of the giving-way vessel alone, she must also take such action as will best a.id to avert collision. The Kalawati was, therefore, justified, in taking port action at 6-48 p. m. when a collision seemed imminent and perhaps the collision would have been averted if the N izam had not taken the unfortunate action of hard starboarding after the Kalawati had taken port action. McLure realised the position as soon as he came on tlie bridge at 6-49 p. m. and ordered full speed astern. Unfortunately, it was too late then. If Ma.son had followed the provisions of Art. 23 and had slackened the speed of or reversed the Nizam between 6-45 p. m. and 6,48 p. m. the collision might have been averted. ' 1004 SUPREME COURT REPORTS [1959) Supp. Ch•A•••••ti r959 -. -. s. K. Das J. ;:'.g~1~'.n v. Instead, however, he ordered the Nizam to be put hard starboard at about 6-48 p. m. This, in our opini- The ~"~ 1"/ 1'"m on, was an act of negligence, which wa.s primarily responsible for the collision. The findings of the lea.rn- ed trial Judge were, in our view, vitiated by re a.son of Sub-Lt. A<abinda the circumstance that he accepted a.s correct Ma.son's evidence that he had put the N izam ha.rd a.starboard at 6-45 p. m. in the teeth of circumstances which showed clearly enough that Mason's evidence about starboarding at 6-45 p. m. could not be correct. These circumstances were-(!) if Mason had put the Ni~am hard starboMd at 6-45 p. m., the N izam would be 90"' to her former course by 6-48 p. m. and by 6-49 or 6-50 p. m. she would be turning towards Madras; (2) McLure did not feel any such helm action at 6-45 p. m.; (3) the N izam gav.e no signal of starboarding at 6-45 p. m. but gave such signal after the Kalawati had turned to port soon after 6·48 p. m.; and (4) the reason which Mason gave for starboarding at 6-45 p. m. did not stand the test of scrutiny. In the court of appeal below, one of the assessors, Commander Ka.le, said definitely tha.t the only war-time restric tions in 1940 were with regard to lights and wireless communication. He sa.id that signals had to be given by ships when they decided to change their course, and the more so when ships were in restricted waters and there was another vessel coming ahead. We think that the learned Judges who heard the appeal rightly emphasised the importance of the circumstances stated above, and having given them due weight, rightly reversed the findings of the lea.med trial Judge. To summarise our conclusions now: (I) we accept the position that the Kalawati entered the channel at 6-25 p. m. on the wrong side and the Niza·ll? was two cables on the right side at about 6 p. m.; but by 6-45 p. m., the two boats were opposite each other near about the mid-line of the channel, the distance be tween the two being then a little more than a mile ; (2) the Nizam did not take any hard starboard action at 6-45 p. m.- rather she continued to steer to a port course till a.bout 6-48 p. m. and .probably went over the mid-line into the wrong side of the channel ; (3) when the Kalawati signalled with the Aldis lamp, she } .1 (1) S.C.R. SUPREME COURT REPORTS 1005 " "d" h K 1- noticed that the N izam was steering to port and was x959 on a course converging on the Kalawati and at about Th A -:--- k 51 1 SI« IC 6-48 p. m. t e aw,wati too avo1 mg act10n y turn- Navigatiou ing hard to port and gave a. signal to that effect; (4) co., Ltd. the N izam then took starboard action to get back to v. the right side of the channel and get out of the way Sub-Lt. Arabinda of the J{alawati; and (5) when McLure came on the bridge at about 6-49 p. m. he ordered full speed astern -but it was too late and the collision took place at about 6-51 or 6-52 p. m. Chakravarti s. I<. Das J. • b .. I . On the aforesaid findings there is little difficulty left in adjudging where the responsibility lies for the collision. As we have said earlier, the responsibility lies with the N izam. relied: "The Tioga" (1) and It ii; necessary to notice now, very briefly, two decisions on which learned counsel for the appellant the "Empire In the Tioga the question for considera Brent " (2). tion was the liability for damages in respect of a colli sion which occurred in the swept channel of the N. E. Coast of England between the Pundit, a ship in the port column of a south- bound convoy of eight ships, and the Tioga, an independent north-bound ship. The decision proceeded on the footing that south bound ships were under a strict duty to keep within the western half of the channel and north-bound within the eastern half, thus passing each other port to port. Down the centre of the channel there was a line of flashing buoys four or five miles apart. There was a general prohibition of navigation lights, which made the strict observance of the rule of the road in the swept channel exceptionally imperative. The night was overcast and dark, and there was drizzling rain In those circumstances, it was diminishing visibility. found that the Pundit, instead of keeping to her right water, trespassed into the Tioga's water, and further more when she the Tioga's red at a quarter of a mile away, her instant duty was to star board out of the Tioga's way so as to pass port to port. This the Pundit failed to do. Therefore, the Pundit was held responsible on two grounds, which Scott, L. J., explained in the following words :- (1) (1945) 78 Ll. L. Rep. l (Lloyd's List Law Reports). (2) (1948) 81 LI. L. Rep. 306 (Lloyd's List Law Reports). first saw Th A ' eam T' I9J9 -:- . St 1 Sia'·' Navigation co., Ltd. v. 11 Chakrnv•• - s. K. Das j. Sub·LI. Arabfoda board her helm. 1006 SUPREME COURT REPORTS [1959) Supp. · h' If th t t t ioga por o por . "The two ships were either meeting or crossing; and in either case it was the Pundit's duty to pass the · ey were crossing s 1ps it was also her duty to keep out of the way of the Tioga and go under her stern ; if meeting ships, simply to star- In addition, there was the special duty of the Pundit in that channel to regain her right water. She had been blundering out of it and en- dangering north-bound traffic ; and I entirely agree with the learned Judge's view that for that reason alone she was seriously to blame ; and that position of itself would entitle the Tioga to expect her to be actually on a starboard helm, correcting her error, at the moment she put her lights on". We do not think that the decision in the Tioga is of any great assistance to the appellant. On our findings, it was the duty of the Nizam to keep out of the way of the Kalawati; and at 6-48 p.m. the N izam was in all probability in her wrong water and the Kalawati in her right water - at any rate - both were near the mid-line of the channel, and in these circumstances, the Nizam's action in starboarding after she had seen the Kalawati, turn to port cannot be justified either on the principles laid down in the decision aforesaid or on the provisions of the rule of the road in a narrow channel. In the Empire Brent the collision took place in the river Mersey between the steamship Starmont and the steamship Empire Brent. It was found that so far as the Starmont was concerned, she deliberately set a course which meant that for most of the way up the river she was necessarily proceeding on the wrong side of the river for her. The Empire Brent had just left the Princes Landing Stage when she had to cope with the situation created by the approach of the Starmont. In these circumstances it was held that the Starmont was wholly in the wrong for coming up on the eastern side of the river and for breaking in that way the narrow channel rule which prevails in the . Mersey. Willmer, J., said:- " I find it difficult to find words sufficiently strong to condemn the action of a man who persists in coming up on the wrong· side of the river-especially as this ) - (1) S.C.R. SUPREME COURT REPORTS 1007 action of the Starmont was quite deliberate &nd was merely for the purpose of her own convenience." Dealing with the alternative case that the starboard- ing action of the Empire Brent was the whole cause of the collision even if the Starmont was wrong in coming up on the ea.stern side of the river the learned Sub-Lt. Arabintla J d Th A . . 5 Navigation Co., Lt4. v. u ge o serve : b d z959 ' 1 te11m CllaAravarti s. K. Das J. " That alternative way of putting . the case has become academic, having regard to my finding that the vessels were green to green at any rate up to the time when they were about three-quarters of a. mile apart. But, lest it should be thought that I agree with it, I should like to take the opportunity of saying that I regard that contention as wholly wrong. As I understand the principles which apply in narrow channels, it has been la.id down for many, many yea.rs that, although the crossing rule does from time to time have to be applied in narrow channels (when, for instance, a vessel which is crossing the channel has to act in relation to a vessel which is proceeding up or down the channel), nevertheless, when vessels are approaching each other, navigating respectively up ancl down the channel, it is Art. 25 of the Collision Regulations which applies and applies exclusively. There is no room in such a situation for applying the provisions of the crossing rule at the same time as the provisions of the narrow channel rule, because the I have no requirements under the rules a.re different. hesitation in saying that as between a vessel coming up and a vessel going down, approaching each other in that way in a narrow channel like the Mersey, the narrow channel rule, and the narrow channel rule only, is the rule which has to be applied. However, that is a digression, because, having regard to my findings of fact, the point is academic." Learned counsel for the appellant has placed strong reliance on the aforesaid observations and has con tended that in the present case also the provisions of the narrow channel rule should apply and not those of the crossing rule. We do not see how a strict or exclusive application of the narrow channel rule will help the appellant in the present case. We have found that the N izam was in her right water at about 6 p.m. •. 1008 SUPREME COURT REPORTS [1959] Supp. r959 Th A --:-; St but she had altered her course to port later and at a.!iout 6-45 p.m. she was near the mid-line and at 6-48 p.m. 'N;:;g:~ioneam when she starboarded in answer to the Kalawati's port action, she was in a.II probability in tho wrong water. The N izam cannot, therefore, say that if. the narrow Sub-Lt. Arnl>inda channel rule only applied, sho is bound to succeed. Cl•akravarli We do not, therefore, think that the ratio of the deci co .• Ltd; v. S. l<. Das]. sion in the Empire Brent helps to establish the case of the appellant. In view of our findings, we consider it unnecessary to deal with the alternative claim of the appellant as to an apportionment of the blame for the collision in question. We do not think that the Kalawati was to blame for ta.king port action when she did, and we have already stated our reasons therefo1·. There is a. further difficulty in the way of the appellant. It is true that the question of contributory negligence was one of the issues before the learned trial Judge, but in the view which he took of the evidence, he considered it unnecessary to decide it. The appeal was decided on the footing that the Kalawati was not guilty of negligence and the entire liability for the collision was that of the Nizam. The appellant has no doubt con tested the correctness of the findings arrived at by the learned Judges of the appellate bench; but neither in the memorandum of appeal nor in the atatemelj.t of the case presented to this Court did the appellant raise the alternative claim which it has now raised. During the course of the hearing of the appeal in this Court, a. petition was made for adding a. fresh ground of appeal in order to raise the alternative claim of an apportion ment of liability for the collision under tho rules for the division of loss prescribed under the Moiritime Conventions Act, 1911. We do not think that the prayer for an alternative claim can be allowed at this stage, because on our findings there is no case for an apportionment of the blame. In the result, the appeal fails and is dismissed with costs. We have already passed orders for the pay ment of the fees of the two assessors, and no fresh orders thereon are necessary. )