VOL. 23. No. 1]

Collision in River Thames-Disputed courses -Evidence tendered and rejected of automatic record of movements of gyroscopic compass on defendant ship. Their Lordships to-day continued the hearing of the appeal of the United States Shipping Board against a decision of the Court of Appeal which, affirming a decision of the President of the Admiralty Division, held that the American Merchant was solely to blame for a collision with the Matatua in the Lower Hope Reach of the Thames in March of last year.

The contention of the appellants was that the Judges below had not paid sufficient attention to the record of the courses steered by the American Merchant recorded automatically by a gyroscopic compass attachment which showed neither of two alleged alterations of course to port before the collision.

The previous proceedings in the appeal were reported at 22 Ll.L.Rep. 279.

Sir John Simon, K.C., Mr. Butler Aspinall, K.C., and Mr. B. B. Stenham (instructed by Messrs. Thos. Cooper & Co.) appeared for the appellants; respondents were represented by Sir Leslie Scott, K.C., Mr. G. P. Langton, K.C., and Mr. K. Carpmael (instructed by Messrs. Ince, Colt, Ince & Roscoe).

Sir LESLIE SCOTT, in opening the case for the respondents, submitted that the question to be decided was as to what

[BY SUBSCRIPTION

weight ought to be given to the gyro com pass record, and whether the Courts below gave that weight to it. He would endeavour to approach the matter on the footing that, so far as credibility was concerned, there was not much weight to be attached to the record in view of the oral evidence. The question was whether the gyro record was of such a convincing character as to entitle it to be said that the learned Judge did not give sufficient weight to it. His submission would be that it was extremely improbable, if not impossible, that the collision could have happened at the place alleged by the appellants, and the angle alleged by them. He would also submit that, on the evidence, the line drawn on the card after the break was inconsistent not only with the evidence given by the respondents, but with the facts that were common ground. With the heading she had the Matatua could not substantially have got to the spot of the collision and have had a collision.

Tuesday, July 7, 1925.

Sir LESLIE SCOTT, continuing his speech for the respondents, examined the evidence to support his submission that the vessels approached in a position to pass all clear port side to port side, when at a short distance the American Merchant was observed to be swinging rapidly to port without warning. If the collision took place within the channel, the American Merchant must have starboarded very substantially before the collision took place.

COUNSEL Concluded his submission with an examination of the charts and documents in the case.

Thursday, July 9, 1925.

Sir JOHN SIMON, replying on behalf of the appellants, said that the gyroscopic apparatus had the confidence of practical. men; it was regularly installed in the Royal' Navy; and where in big ships it was subject. to check it was checked by another gyro-* scopic compass, which was evidence that it might be expected to work properly:.•

Their LORDSHIPS reserved. judgment.

Friday, Oct. 23, 1925.

JUDGMENT,

Lord BUCKMASTER, in moving that the appeal should be dismissed, said: The colli.sion out of which this action has arisen took place between the steamship American Merchant and the steamship Matatua in the River Thames at about 53 or 4 55 a.m. in the early morning of Mar. 24, 1924. It was a catastrophe of no ordinary magnitude, for eight men were killed and three injured on board the Matatua, whose owners were the plaintiffs in the action and are the respondents in this appeal.

The place where the accident occurred was in the Lower Hope Reach. The exact spot of the occurrence is one of the critical matters in the appeal. The Lower Hope Reach is a bend where the river, after running due east down the Gravesend Reach, turns to the north and then at the end of the reach, which is about 21⁄2 sea miles, turns again to the east. The buoy that marks the northern side of the channel where the reach begins is called the Ovens Buoy; halfway up the reach, on the same side of the channel, is another buoy called Mucking No. 2; and at the top, again on the same side, is a third buoy called Mucking No. 1. All these buoys are on the left-hand side of the channel. The Matatua was going down this reach bound for Dover, but her immediate objective was Hole Haven some 2 miles to three miles east of Mucking No. 1 Buoy-where she intended to pick up some ammunition. The American Merchant was coming up the river; and an. ebb tide was running of about three knots.

The Matatua was in charge of an experienced pilot who had frequently taken her out, and who in 18 years' work had never known an accident. His case was that he passed the Ovens Buoy, leaving it 800 or 900 ft. on his port hand, that he then put the ship on the ordinary course-N. 40 E. mag. Opposite the Lower Hope point on the east side of the river, about two-thirds of the way down the reach, he changed to N. 55 E. According to his story the American Merchant was then in the close neighbourhood of No. 1 Mucking Buoy. He states that shortly after this, his own vessel being in line with the Mucking Light and the Mucking Buoy, the American Merchant

violently starboarded her helm and drove straight into them, with the result I have described.

The officers of the American Merchant, which was also in charge of a first-class pilot with an unblemished record, tell a different tale. Their story is that she came straight down the channel close to the Mucking Buoy No. 1, that she steadied and prepared to starboard, as she was entitled to do, to go up the reach, and that the Matatua came right across her course and thus caused the damage.

It is unnecessary to describe in closer detail the exact operations on the one side or the other; and it is impossible to ascertain what can have caused the pilot on either vessel to adopt a manoeuvre which might be explicable as an act of war, but is incomprehensible for two merchant vessels in the ordinary course of peaceful navigation. The learned Judge who tried the case determined that the plaintiffs' witnesses were telling the truth. There can be no doubt, however, that in one respect he misinterpreted the evidence of the defendants' pilot, attributing to him the statement that he was four cables below No. 1 Mucking Buoy where he first saw the Matatua, when, in fact, he rejected this suggestion and asserted he was opposite Thames Haven, 11⁄2 miles lower down. Notwithstanding this fact, did the matter rest alone on the proper value to be attributed to the evidence on one side or the other, his judgment could not, in my opinion, be successfully appealed, for in particular, if the Mucking Buoy and the Mucking Light were in line with the Matatua as the Matatua's pilot asserts, the place of accident could not possibly be where the witnesses of the American Merchant say that it was.

This case, however, differs from the ordinary case of a collision at sea because, as I understand for the first time, there is introduced into the evidence the automatic record attached to the gyroscopic compass by which the American Merchant was steered. The gyroscopic compass is an instrument by which the action of a gyrɔscope is adapted so that the axis of the revolving wheel points persistently to the true north. Attached to this compass is a recording instrument which, like a sphygmograph or a machine for reading changes in atmospheric pressure, automatically traces the courses of the vessel along a prepared chart plotted in concentric circles of five minute intervals. Unless something deflects the axis of the revolving wheel or failure takes place with the recording apparatus this record would be exact; but it must be remembered that it is subject to two qualifications-the one that it can never show the exact spot where the vessel was at a particular moment unless some other spot on its course definite and ascertained has been fixed; and, secondly, that if the vessel made a continuous revolution to port or starboard it would give no clear indication of any spasmodic action ahead or astern.

In this case, from the record produced, it is clear, if the evidence of the pilot of the American Merchant be accepted as establishing the fact that in passing the Blyth Sands, which is opposite Hole Haven, he was two cables to the N. of the Middle Blyth Buoy and that he passed within 100 ft. of No. 1 Mucking Buoy, that the accident could never have occurred at the spot assigned by the Matatua, and further, that the American Merchant would at all points have been well on her right course. The learned President rejected the record chiefly owing to the fact that after the accident it showed that the vessel continuously turned to port for some 16 min.; and he accepted the witnesses on the Matatua who said that the vessel revolved in an opposite direction. Commander Harrison, who has experience of these compasses and was called for the plaintiffs, said that they were not infallible, and that though there was nothing on the record alone to which he could point as showing error, yet accepting the story as given by the Matatua's evidence as the learned President did - he appears to have regarded the record traced as consistent with such an inaccuracy as that to which the machine is liable. Owing perhaps to the novelty of this evidence, neither Commander Harrison nor the expert witness called for the defendants was ever fully examined so as to make clear the exact character and causes of the aberrations to which the compass is occasionally liable or how they were evidenced on the record; and without this explanation I find it very difficult to believe that the compass, which on subsequent examination was found in order, can suddenly have gone wrong at the moment immediately before the accident, could have continued wrong for 15 min. after the accident, and then righted itself, nor was it ever stated that in the experience of the witnesses such a phenomenon had ever occurred.

I therefore find myself confronted with this difficulty, that the learned President has accepted a story inconsistent with an automatic record which I see but slender reason to distrust. None the less, it might be necessary, if Captain Harrison's evidence be accepted, to assume the necessary errors to explain the record in the light of the evidence.

I think, however, that it is possible that reconciliation can be approached if not effected in another way. If the course of the American Merchant along the Blyth Sands were put more to the south, her turning to port just before the accident, as the record undoubtedly shows, may explain the accident taking place approximately on the spot alleged by the Matatua. The evidences as to the distances from the Blyth Buoy and Mucking No. 1 Buoy are at the best only estimates; and they may be wrong. Accepting the Matutua's evidence on the one hand and the fidelity of the instrument upon the other, this may offer some explanation. After the collision it is, of course, possible that the violence of the blow deranged the instrument, though

unfortunately no witness said so; or it may be that in the excitement of the moment the Matatun's witnesses did not exactly observc the way the ships moved. The record taken by the compass is quite consistent with the struggles and efforts made as recorded in the log book, provided only that these did not check the steady swing to port.

In the result, therefore, I think that as your Lordships cannot allow this appeal without rejecting the verbal evidence of men whom the President believed, and that if their evidence be accepted the defendants were to blame, this appeal should fail; but I am not at all satisfied that the instrument gave as untrustworthy an account of what took place as the learned President believed.

Lord ATKINSON: I have had the pleasure and advantage of reading the judgment that has just been delivered by my noble and learned friend on the Woolsack; and I so thoroughly concur in it that I have nothing to add.

Lord SUMNER: There is no question of law in this case. The matter is one of fact only. Lord Merrivale did not misdirect himself as to any part of the evidence. After fully considering it he simply attached less importance to the gyro-card than the appellants now contend that it deserved. Having seen and heard the witnesses on both sides, witnesses who in their turn had seen what happened and must have known the truth, he believed in the end that the Matatua's case was proved and that the American Merchant's was not. The Elder Brethren's advice bore out this conclusion. The Court of Appeal confirmed it, acting in accordance with the advice of their assessors. Your Lordships' advisers are of the same mind. I can imagine no greater responsibility for this House to take than to allow this appeal notwithstanding.

The gyro-card is a mechanical record which cannot lie not being human - but which may be wholly incorrect or may be unintelligible. At best, all that it can tell is that the ship's head was steady on such and such a true compass bearing for such and such a time, or that it swung for some cause or other to such and such another bearing during such and such a number of minutes. To make it intelligible at all, human evidence must add sundry essential considerations. You must know ab extra the position of the ship when the record begins and her speed during its duration, and the forces of wind and tide, which might prevent a movement from being made good, which would otherwise be inferred from the card's record. There is one more thing that can only be known ab extra. It is this: whether the gyroscopic compass worked correctly at all material times and, if not, why it went wrong and what allowance, if any, can be made to correct the error. As to these

last two points little more is possible than conjecture.

The gyroscopic compass is so contrived that if all goes well the axis of its wheel always points to the true north pole in all positions and at all places. Following this guidance a ship, steered mechanically or by hand, ought to conform to the true compass courses steered; and the recording attachment ought, accordingly, to record on the card the true heading of the vessel from time to time. The record ought to be quite true. Though a helmsman may easily steer a degree off the course given him, the card gives correctly the course he actually steers. This compass has been extensively used in his Majesty's ships and of late years has been adopted by many merchantmen, but experience has shown that its gyrations ought to be regularly checked and its indications carefully verified.

From the defendants' admissions of the fallibility of the compass it seems to me to follow that the gyro-card is only one piece of evidence in this case, peculiar, indeed, in being mechanically produced and incapable of being interrogated, but in its own way untrustworthy and obscure at times. No superiority in kind can be claimed for it from the point of view of a judge, who has to test its value as against the evidence of human witnesses in the case. I think it follows also that, if prima facie evidence is given of its error on the occasion in question by the owners of the Matatua, who are strangers to the particular instrument with which the American Merchant was equipped, their case is not to be refuted merely by saying that they do not succeed in explaining the precise cause, commencement or termination of the error of the compass on this occasion.

The people who knew this particular compass best were the pilot and officers of the American Merchant in the first place, and her owners, advised by their lawyers, in the second. How did they treat it? They have never treated this compass as having been so correct on this occasion as to be conclusive evidence of the courses steered or of the ship's actual movements. The tale its record tells for nearly 15 min. before the collision is materially different from that told by the two witnessees who knew how she was steered, viz., the pilot who gave and the quartermaster who obeyed the orders to the helm. The gyrocard says that at the time of the collision, 4 52 a.m., the ship's head had just swang to port, so smartly that the recording mechanism failed to record the actual time taken in passing from 258 deg. to 256 deg.; that immediately before that it had been steadied on 258 deg. for at least 2 min.; and that immediately before that again it had swung from 256 deg. to 258 deg., 50 fast that the time occupied also escaped the recording pen. This makes a total swing to port of 9 deg. in not more than 3 min.; no great matter, perhaps, but not a thing that the pilot and quartermaster would have been likely to miss.

The pilot's story and the ship's pleaded

case

was that when off Thames Haven Cattle Wharf he ordered a course of 263 deg. to be steered, and after a few seconds 258 deg.; that he never altered the course again; that his orders were carried out; that the Matatua, after being visible for some time, opened her green light on his port bow and blew one short blast, being then only 200 yards off, and that on hearing this signal he stopped bis engines and directly went full astern, but made no alteration in his helm until the Matatua's red light was just about ahead, whereon he hard-a-ported. His quartermaster, Cuthbert, confirming him, said that he hard-a-ported a minute before the collision, but could not say that the ship answered that helm. Mr. Jews Lincoln Cox, the mate, says positively that she did not, nor did she alter with her reversed engines going astern. Cuthbert goes on to say that previously he had steered 258 deg. for about 12 min., and before that 263 deg. for half a minute only. That Cuthbert's 12 min. are excessive is quite immaterial. The point is that 12 min. and 8 min. alike contradict the card. The fact that Cuthbert is wrong does not make the card right. Whether the difference between the story of the pilot and the record of the gyro-card would much affect the place or circumstances of the collision or not, they are totally different stories; and that given by the ship's witnesses was persisted in by them and was never abandoned by the appellants.

What then, is the conclusion? It is this. Nobody on the defendants' side, at or before the trial, considered that the gyrorecord must certainly have been right or was any better than the pilot's story. The American Merchant's case appears then to have been that the true place of collision was not materially affected by this discrepancy, and therefore that the gyro-card was useful corroborative testimony.

As a

Unfortunately the gyro-card's account le to a position no whit better for the American Merchant's case than the pilot's, but it was by no means the same. corroboration it corroborated an untrue story. The only alternative is that, not being infallible, it failed for the time being to record anything trustworthy at all. It is to be remembered that it will not do to say of this instrument that it is nearly right or not far out. Neither is it useful to inquire whether it is corroborated on the whole by the witnesses. If it is working right, its record is right, and what the witnesses say does not matter. Their agreement makes it no more right, their divergence makes it no less right. If, however, it is not right altogether, it is of no use at all, for what they say affords no means of rectifying its rate of error. For present purposes it must be quite right or must be taken to have gone wrong; and how far wrong no one can say.

The witnesses who gave specialist evidence about the gyroscopic compass were five in number. They were, for the Matatua, Commander Harrison and Mr.