In this case the owners of the steamship Pennant, a steel screw steamship of Beaumaris, 648 tons gross, 254 tons net, claimed damages from the owners of the Acasta, a steel screw oil tank steamship, of London, 5259 tons gross and 3213 tons net, in consequence of a collision which occurred in the early morning of Sept. 4, 1925, in Sea Reach, River Thames, when the Pennant was on a voyage from London to Boulogne, laden with a general cargo. The members of the crew of the Pennant also claimed for the loss of their clothes and private effects. The Acasta was on a voyage from Havre to Shell Haven.

Mr. A. T. Miller, K.C., and Mr. E. A. Digby (instructed by Messrs. J. H. Glover, Watson, Buckley & Blackwood, of Liverpool, Messrs. Pritchard & Sons, agents) appeared for the plaintiffs; Mr. G. Langton, K.C., and Mr. R. F. Hayward (instructed by Messrs. Waltons & Co.) were for the defendants.

According to the plaintiffs' case, shortly before 4 15 a.m. on Sept. 4, 1925, the Pennant, an iron and steel screw steamship, of Beaumaris, of 648 tons gross, 254

tons net register and 180 ft. long, fitted with triple expansion engines of 94-h.p. nominal and manned by a crew of 12 hands all told, was in Sea Reach, River Thames, on a voyage from London to Boulogne, laden with a general cargo. The wind at the time was S.S.E. a light breeze, the weather fine and clear and the tide ebb of the force of about 11⁄2 knots. The Pennant was on a down-river course of between E. by S. S. and E.S.E., keeping -to the south of mid-channel, and was proceeding at a speed of about 10 knots. She was exhibiting the regulation masthead side and stern lights which were burning brightly; and a good look-out was being kept on board of her.

In these circumstances, the helmsman noticed about ahead, and at a distance estimated to be about half a mile, the masthead and both side lights of a vessel which afterwards proved to be the Acasta. Shortly afterwards, the master of the Pennant, who was in charge of her navigation, sounded one short blast on the whistle and ordered the helm of the Pennant to be put hard-a-port, but nevertheless the Acasta, coming on at speed, heading for the Pennant, apparently with her stem struck the Pennant forward of amidships on the port side such a heavy blow that the Pennant very shortly afterwards sank. In consequence of the said collision, the master and his wife were drowned and the crew lost their clothes and private effects.

Plaintiffs alleged that those responsible for the navigation of the Acasta were negligent in that they failed to keep a good look-out; improperly navigated to the south of mid-channel; failed on approaching the Pennant to port their helm and pass port to port; proceeded at an excessive speed, and failed to ease, stop or reverse their engines in due time or at all; and failed to comply with Arts. 18, 25, 27, 28 and 29 of the Collision Regulations.

According to the defendants' case, shortly before 4 17 a.m. on Sept. 4 the Acasta, a steel screw oil tank steamer, of London, of 5259 tons gross and 3213 tons net register, 400 ft. in length and 52 ft. beam, fitted with triple expansion engines of 517-h.p. nominal and carrying a crew of 49 hands all told, while on a voyage from Havre to Shell Haven, was in Sea Reach, River Thames. The wind was W.N.W. a moderate to fresh breeze, the weather was fine and clear and the tide was ebb of the force of about 2 knots. The Acasta, steering a course of W.N.W. mag. on her own starboard side of mid-channel, was making about 10 knots through the water. She carried the regulation single masthead light, side lights and stern light which were being duly exhibited and were burning brightly; and a good look-out was being kept on board of her.

In these circumstances those on board the Acasta observed the masthead light and green light of a steamship which proved to be the Pennant distant about a mile and a half and bearing about half a point on the starboard bow. The vessels

approached in a position to pass safely starboard side to starboard side, but the Pennant when about 200 yards distant on the starboard bow of the Acasta suddenly sounded a short blast, opened her red light and shut in her green light; and, although the engines of the Acasta were immediately put full speed astern and three short blasts were sounded on her whistle the Pennant came on, acting as if under hard-a-port helm, and with her port side forward of amidships struck the stem. of the Acasta a heavy blow, doing considerable damage to the Acasta and so much damage to herself that she shortly afterwards sank.

Defendants alleged that a good look-out was not being kept on board the Pennant; that she improperly ported and hard-aported her helm at an improper time; that she improperly failed to pass the Acasta starboard side to starboard side; that she improperly failed to keep on that side of mid-channel which lay on her own starboard side; that she improperly failed to ease, stop or reverse her engines; and that those on board improperly failed to comply with Arts. 25, 27 and 29 of the Collision Regulations.

Before calling the evidence, Mr. MILLER said, roughly, plaintiffs' case was that the vessels were meeting nearly end on, and the Pennant very properly ported. Defendants said it was green to green, and that plaintiffs improperly ported. The previous night plaintiffs received a communication from the Board of Trade in London that their surveyor, Capt. Jackson, had surveyed the Acasta (he supposed in connection with the repairs), and they thought that both sides ought to know that their surveyor had reported that the Acasta's lights were not in accordance with regulations. That appeared to plaintiffs to be most important in view of the circumstances of the loss. The surveyor had arranged to come and produce his report to the Court, but he would not give plaintiffs any information before he went into the witness-box.

Capt. JACKSON was then called, and produced his report, which stated that the electric navigation lights on board did not agree with the certificates and were converted oil lanterns, which would not fit the electric light screens. From information received on board, these were the lights that were in use at the time of the collision, and the error in screening would have the effect of allowing the port side light to be seen at full strength on the starboard bow, while the starboard light would be seen at full strength on the port bow. Other deficiencies found in the lights would not interfere with their visibility or direction.

Evidence having been given in support of plaintiffs' case, Mr. D. Magub, the pilot in charge of the Acasta, and Mr. Nelson Douglas, the first officer of the Acasta, who was on watch at the time of the collision, were called for the defence. Cross-examined by Mr. Miller, Mr. DOUGLAS said he could not say what made the

Pennant port her helm. He saw her red light 200 yards away, about a minute before the collision. Directly they saw the red light the Acasta put her engines astern. There was no time to alter the helm when they saw the red light. The Pennant sank some seven minutes after the collision.

Wednesday, Oct. 21, 1925.

Further evidence was given for the

defence.

DAVID DAVY, second engineer of the Acasta, said he came on watch at 4 a.m. on Sept. 4. At 4 16 he received an order full speed astern, and he obeyed the order. The engines went astern for a minute or a minute and a half, and then he felt a bump.

CHARLES DAVID SIMMONDS, able seaman on Hopper 21, said he had been 25 years in the employ of the Port of London Authority. On Sept. 4, at 4 a.m., he was moored alongside a dredger, and the Acasta passed by very close to him. He indicated the positions of the respective vessels at the time.

Mr. JAMES PATTEN, dock manager of Smiths Dry Dock Company, North Shields, said they carried out the repairs to the Acasta after the collision with the Pennant. He agreed with the evidence of Captain Jackson, the Board of Trade surveyor, that the lights required some small rectification and adjustment.

Captain HOWARD ROBERTS, master of the Acasta, said he knew nothing of the events leading up to the collision. He had no suspicion that the lights required adjustment, and the men had reported on them in the usual way. In a fog he had noticed that the lights showed a beam dead ahead. If it had been otherwise he would have reported it.

Mr. HARRY GRAY, marine engineer, gave evidence as to measurements in connection with the lights, and, cross-examined as to the port light, said it was better that it should show too soon than too late, because other ships would have longer warning. Ships' lights differed slightly even after they had been tested and passed.

COUNSEL then addressed the Court.

Mr. MILLER commented on the disadvantage the plaintiffs were under owing to the unfortunate death of the master, and submitted that the Acasta was to blame because she was not making a proper course up the river.

Mr. LANGTON submitted that on any view of the case the admitted defects in the lights were quite insufficient to account for the collision or to have any bearing at all upon the case. The difference was so insignificant that it could not possibly have affected the navigation of the Pennant, having regard to the position of the vessels. In fact he did not think that Mr. Miller now placed any reliance on it.

advantage to the tribunal which tries it on evidence of the facts while they are fresh in the minds of the witnesses.

The ships are the Pennant and the Acasta. The Pennant is a coasting vessel and was on a voyage from London to Boulogne with a general cargo. The Acasta is a tanker; and she was in ballast coming up the river. She was in charge of a pilot. The collision occurred in the Sea Reach of the Thames above No. 2 fairway buoy, one cannot be certain about the distance, and further above than the position at which the wreck of the Pennant was ultimately found and marked by the Port of London Authority. As to the wind, the only evidence is that it was W.N.W. In fact, on the advice I have received, the wind is not of importance. It could only be of importance in connection with the question as to in which direction did the ships move after the collision and before the Pennant sank. The weather was fine and clear and the tide ebb about 1 to 2 knots.

The

The Pennant was proceeding down. Acasta was coming up. They came into collision, the stem of the Acasta with the port side forward of the Pennant. As to the angle of the blow, the only evidence I have apart from the survey fixes the angle at about 35 degrees. Evidence has been given from some witnesses from the ships, but it is not very reliable. Those on the Acasta were so high up that they could hardly have had any accurate observation of the Pennant right under their stem at the moment of the collision. We really have only the evidence from the lad at the wheel of the Pennant, whose experience was very limited because he only left school last April and therefore you could not attach a great deal of importance to his evidence. Unfortunately, the master of the Pennant who was in charge of the navigation was drowned in consequence of the collision.

As to the speeds of the vessels, I need not trouble except to say that they were about the same-ten knots on each ship.

As to the place of collision, there is acute controversy between the parties; and it is one of the most important questions in the case. There is the usual controversy in a narrow channel collision. Did the collision take place to the south of mid-river or to the north of mid-river? The Pennant, which was speared on the stem of the Acasta, sank, it was agreed, some eight minutes after the collision; and as the tide was ebb it is highly probable that she sank further down the river than the place of collision.

As to whether she sank further to the south of the place of collision, that is a matter about which a good deal has been

said and which I have to consider. In fact, as marked by the Port of London Authority, the wreck is put upon a spot rather to the south of mid-channel. The case for the Pennant was that she was proceeding downriver E. by S. S., keeping to the south of mid-channel, when the Acasta was noticed by the helmsman about half a mile away. There was nobody on the bridge at the time except the wheel man. The Acasta came on and struck the Pennant on the port side forward. It was significant in the plaintiffs' particulars of negligence that, while they made the usual narrow channel charges, they did not specifically charge the Acasta with starboarding. The Acasta charged the Pennant with porting at an improper time and failing to keep to the south of mid-channel. When the case came on for hearing, leave was given to the plaintiffs to add a charge that the side lights of the Acasta were not in accordance with the rules, the charge being as made in evidence that the chocks of the screens of the lights were so improperly fitted that each of the side lights showed a little across the bows so that the red at full visibility showed 1 deg. on the starboard bow and the green at full visibility three-quarters of a deg. on the port bow. There has been some interesting evidence on the matter; but on the facts as I find them I believe that these defects, which are not very considerable ones, were immaterial.

to

The plaintiffs were no doubt at a disadvantage, because the only man in Court who had seen anything from the time the ship passed No. 3 buoy up to the collision was this lad who was at the wheel. Plaintiffs called the chief officer who was on watch up to 4 o'clock, but I am not able to attach very great weight to his evidence. I think perhaps he told me he saw a good deal that was not to be seen; and I regard his evidence with some suspicion. I come more trustworthy evidence, honestly given by the lad at the wheel. He said he got a course from the previous man at the wheel of E. by S. S., and that he got an order from the master to keep the buoy on the port bow. It is possible that he steered E. by S. S. and later on got the order to keep the buoy on the port bow. He said he saw the Acasta and her masthead and both side lights at a distance which he judged to be half a mile. One cannot rely too much on his judgment of distance. He thinks, being rather flurried at the sight, he ported, and the master, it does not appear how soon after, ordered hard-a-port when the vessels were some 400 yds. apart. He put the wheel hard over before the collision, but could not see the red and green until just before the collision. That I think is really all that he can tell us; and I do not think it helps us very much.

I do not think I can get much help from the other witnesses for the Pennant. They called an independent witness from the Humphrey, a sludge boat which was coming down the river following the Pennant; and no doubt if I accept his evidence in

con

full it supports the Pennant's case siderably. He says that he was keeping the Pennant sharp on the starboard bow all the time; that before passing No. 3 buoy he had seen the red of the Acasta on his starboard bow; and that midway between Nos. 3 and 2 the red was shut in and the green opened. That is his evidence, if I recall it correctly; and just before the collision he saw the green of the Pennant. According to him he always has the Pennant sharp on his starboard bow: he is well on the south of mid-channel and a fortiori the Pennant is on the south. Of course, it is involved in his case that at some time or other the Acasta starboarded. That does not appear to me to be involved in the plaintiffs' case as it started or as it is framed in the claim. But Mr. Miller says yes, that is his case; and it seems to be necessarily involved in the case not only to make it consistent with the evidence from the Humphrey but with the evidence which I accept from the other side.

The evidence from the other side is that the Acasta came up, passed north of No. 1 buoy and got on to a W.N.W. course so as to pass the other buoys-a course which was continued right up to the collision and never altered-passing No. 2 buoy at about a cable's length away. They were just below No. 2 when they saw the masthead and green of the Pennant about a mile and a half away and bearing about half a point on the starboard bow. They approached to within some 200 yds., when the Pennant blew one short blast, shut in her green and opened her red. The Acasta went full speed astern.

That evidence is supported in certain particulars by the evidence of a witness called from a hopper which was alongside a dredger rather below No. 2 buoy. He said that the Acasta passed No. 2 buoy to the north. There was also a tug which, after passing No. 2 to the north, passed starboard to starboard with the Acasta. I think the Acasta passed No. 2 to the north. am not sure that the plaintiffs ask me to disbelieve the evidence that the Acasta passed No. 2 to the north. I find quite definitely that she passed to the north of No. 2.

I

Therefore if the collision happened to the south of mid-channel it follows that at some point after passing No. 2 and before the collision the Acasta starboarded so as to bring herself well over to south of midchannel. Her ordinary course which she had set herself and on which she passed No. 2 was W.N.W.; and I ask myself why she should have starboarded. As I can see there is no conceivable reason why she should do so, I cannot find that she starboarded for anybody. That leads me to conclude that the Acasta did not starboard and did not pass No. 2 about a cable to the north of it and did continue a W.N.W. course right up to the collision and was therefore north of mid-channel at the moment of the collision.

Is there any reason why I should find to the contrary? Plaintiffs put forward

their trump card; and no doubt it requires careful consideration that the wreck of the Pennant was found to the south of midchannel. We know that the two ships were locked together for some minutes, that the angle of the blow began at 35 deg. and ended we do not know where, though the actual penetration had ceased probably at an angle of 40 to 45 deg. The wind was negligible; at the moment of collision the Pennant, much the smaller ship it is true, had a speed of 10 knots; the Acasta had a speed of 10 knots reduced by the very short period of going full speed astern. She is probably four or five times the weight of the Pennant. How are these two ships going to be left? The Elder Brethren think that the resulting effect of the various forces which were in play would be just as likely to carry the ships to the south as to the north. Although there is this strong point of the plaintiffs which is inconsistent with the facts as I find them on the other parts of the case, I find that the collision did happen to the north of mid-channel.

That in my opinion disposes of the whole matter. It means that the Acasta pursued a course which she was entitled to pursue and that the Pennant got over on to her wrong side of the channel, a thing which she would certainly do if she pursued the course which she was steering at No. 3 buoy. I think it may well be that the master of the Pennant was cutting across the channel, an operation which would of course in time bring him across the bows of the Acasta and open both her lights. It was seeing both those lights that caused the boy to take alarm. He said he became flurried and ported; and it may be that having ported the master thought the only thing left to do was to hard-a-port. That is only conjecture. But, accepting as I do the Acasta's case, it fits in with the manœuvres of the Pennant if they were such that the E. by S. S. course was continued, as it may well have been, until she brought herself under the starboard bow of the Acasta and was observed by the Acasta to be in that position. That means that the fault is with the Pennant. It was suggested that the Acasta ought to have done something other than go full speed astern when the red light of the Pennant was seen, but, on the advice given to me, I cannot see what else she could have done.

Has the fact of the defects in the lights of the Acasta any relevance? It obviously cannot have. It only means that the Pennant has the red light of the Acasta opened to her sooner than it otherwise might be and that she has earlier warning. That is putting it at the highest, because the figures given in evidence show that the defects were so small and extended for so small a distance that in relation to this case they are negligible.

I therefore pronounce the Pennant entirely to blame.

KING'S BENCH DIVISION. (DIVISIONAL COURT).

Thursday, Oct. 15, 1925.

SEEVANJEE v. BOARD OF TRADE.

Before Mr. Justice SALTER and Mr. Justice FRASER.

Charter-party T. 97 B-Requisitioned shipShip lost Reference to arbitration Measure of damages Alleged agreement as to liquidated sum being payable in event of loss-Action of arbitrator in omitting matter from special case abandoned by leading Counsel but pressed for by junior Counsel held not to have been legal misconduct.

This was a motion to set aside an award made in connection with an arbitration between Alibhoy Mulla Seevanjee, of Bombay, and the Board of Trade, in relation to the loss of the steamship Taiyabi, while under requisition by the Government in 1918. The owner asked the Court to set aside an award made by the then Mr. F. D. MacKinnon, K.C., before his elevation to the Bench, on the ground that he had omitted in stating a special case to include one of the questions he was asked to state in the said case.

Mr. Stuart J. Bevan, K.C., Sir Thomas Strangman, and Dr. Majid (instructed by Messrs. Thomas Cooper & Co.) represented the claimant; and for the Board of Trade the Attorney-General, Sir Douglas. Hogg, K.C., and Mr. Russell Davies (instructed by the solicitors of the Board of Trade) appeared.

Mr. STUART BEVAN said the matter arose out of the loss of the claimant's steamship Taiyabi while she was under requisition as far back as 1918. The contract between the parties provided for arbitration in the case of a dispute, and an award was made, 6 years after the loss of the ship, in April, 1924. The award was in the form of a special case, and this was a motion to set it aside. The arbitrator was the present Mr. Justice MacKinnon, and the ground for asking for it to be set aside was that there was an omission by the learned arbitrator to include in the special case a matter which he was asked specifically to include. There were other grounds mentioned in the notice, but a conclusion had been come to that the real ground for the claimant's motion was this omission to include this matter. This question which had been omitted was that the arbitrator had been asked to state in his special case whether the charterers, the Board of Trade, were, under their contract with the claimant, bound to insure the steamer for a sum of £100,000.

The facts indicated that in February, 1917, the Taiyabi was at Dieppe, when she was requisitioned by the Admiralty. Although no charter was executed, it was admitted and agreed that from Feb. 20, to Dec. 15, 1917, she was running upon the

as

terms of a charter-party known as T. 99. In December of that year that was changed, and at the date of her loss she was running under a charter-party known T. 97 B. On Jan. 9, 1918, she foundered in the Atlantic. The precise cause of her loss was never ascertained, but it seemed to be agreed that it was from a marine peril.

From that time until some time in 1923 there were claims put forward with regard to the charter hire payable, the question of repairs, and the liability as to the value of the ship, &c., and eventually, in 1923, an agreement was entered into between the parties in which all matters in dispute were referred to a learned arbitrator. In the award of the latter he dealt with the question of the accounts between the parties, and awarded a sum to claimant. No claim arose on this point now. The more important matter to his client was what he was entitled to be paid for the loss of his ship. In his award the arbitrator had dealt with this in alternative ways. He found that if he was right in fixing her value on the basis that she was a requisitioned ship, and not a free ship, at the date of her loss, her value was £42,000. Alternatively, he awarded that if she were a free ship her value at the time would be £80,000. These were the only points raised in the special case.

In the ordinary way, COUNSEL explained, the Court would deal with these points and send the award back to be made formally in accordance with their decision, but here he was asking them to set the award aside on the ground that the arbitrator had omitted to include the question of a special contract for the insurance of the ship for £100,000. In these circumstances. that would be the only question to be argued before the Court that day. The Board of Trade had paid £35,000. arbitrator also awarded his client costs, but as the Board of Trade had offered another £10,000, the arbitrator deprived the claimant of the costs, some £2000. There appeared to have been some misunderstanding over the matter, and he appeared to have omitted from the special case the claim under the contract for insurance for £100,000.

The

The ATTORNEY-GENERAL said he did not admit this. His case was that the arbitrator was not asked to include this in the special case, and there were affidavits to this effect. He said the point was never pleaded, and if so was abandoned.

Mr. STUART BEVAN said that the notes taken at the arbitration showed that the question was raised, and the correspondence clearly showed that when the ship was first taken the Government were asked to insure her for this amount. If there was a contract to this effect it was immaterial to consider whether she was under T. 99 or T. 97 B. It became a matter of express contract to insure for £100,000.