COURT OF APPEAL.

Tuesday, July 24, 1923.

OWNERS OF STEAMSHIPS ARDGOWAN," "ARDGOIL" AND "BURANDA" v. ROYAL COMMISSION ON WHEAT SUPPLIES.

Before Lord Justice BANKES, Lord Justice ATKIN and Lord Justice YOUNGER.

Charter-Party Demurrage Exceptions Clause Strike- Congestion -Obstructions on Railways carrying Grain or more Grain to be carried than Railway could deal with-Stoppage in Docks or Failure to arrange Berth-" Go slow" Strike-Nature of Proof of Delay thereby-Export Prohibition: Time refused to Charterers to find out whether temporary or permanent-Obligation to continue loading other than nonprohibited Cargo.

(Continued from p. 307.)

Mr. WRIGHT, Continuing his argument for the appellants, contended that the arbitrator was wrong in saying that the cargo ought to have been ready at Rosario for loading. He ought to have allowed for the labour trouble on the railways.

Wednesday, July 25, 1923.

After further arguments in this case to-day, the Court intimated that it required further information on certain points.

The case was accordingly remitted to the arbitrator for him to report further to the Court, and the appeal was adjourned till next term.

COURT OF APPEAL. Thursday, July 26, 1923.

GARRA v. EAGLE STAR & BRITISH

DOMINIONS INSURANCE CO.

Before Lord Justice BANKES, Lord Justice ATKIN and Lord Justice YOUNGER.

Procedure-Marine Insurance Claim-Affidavit of Ship's Papers-Inspection of Account Books refused.

This was an appeal by the defendants from an order by Rowlatt, J., refusing them the inspection of entries in books of

an

accounts disclosed by plaintiff in affidavit of ship's papers. The action in which his Lordship refused the application was brought by Wenceslao Gonzelez Garra, of Villagarcia de Arosa, Spain, against the Eagle Star and British Dominions Insurance Co. in a claim for loss under policies of insurance upon the Guillermo.

Mr. G. P. Langton (instructed by Messrs. Holman, Fenwick & Willan) appeared for the appellants; and Mr. R. A. Wright, K.C., and Mr. S. L. Porter (instructed by Messrs. W. & W. Stocken) were for the respondent.

Mr. LANGTON said the claim in the action was brought by a Spanish gentleman, Senor Garra, and the defendants, the appellants in this case, were the underwriters of the policy. The vessel was lost in calm weather near the coast, and their Lordships would not be surprised to hear that the defence was that she was wilfully cast away. The matter of the appeal raised a short point on an affidavit for ship's papers which was made in the ordinary form. In the affidavit the plaintiff disclosed certain books and accounts-six, he thought and on that the defendants endeavoured to obtain inspection of the documents which were exhibited in the affidavit, particularly to get inspection of the books of accounts. Senor Garra claimed that some parts only of these documents were relevant, and the remaining parts were not.

Quite shortly the position was this. The plaintiff said: "I own, besides this vessel, the Guillermo," which was the subject of this action, other vessels, and my books relate to all my vessels and all my business. I will give you inspection of just those entries which relate to the Guillermo, but not anything else." He thought he was right in saying that the appellants had had inspection of the working accounts, insurance accounts, and first costs accounts of this vessel, but further than that the respondent had refused to go.

It was therefore quite impossible to investigate in any way the financial position of this gentleman, against whom the appellants were alleging that he wilfully cast his vessel away. Their Lordships were familiar with the order with regard to ship's papers. The financial position of the respondent was not a matter in any way in issue in this action, but it was a matter which in the circumstances related to the action. The definition of relating was set out in the Annual Practice as follows:

Co., 11 Q.B.D. 63, in which his Lordship said:

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may-not which must either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.

Lord Justice YOUNGER: When he is also a shipbuilder, would you be entitled to inspect his books to see whether he was insolvent ?

Lord Justice BANKES: I do not think you can convince us of this, Mr. Langton.

Mr. LANGTON: I am sorry you have come to that determination so early, my Lord. Could it be reasonably said that this gentleman's financial position has nothing whatever to do with it, either directly or indirectly. I say that either directly or indirectly this question of his financial position must affect it, whether or not

Lord Justice YOUNGER: I asked you, supposing he was a shipbuilder and he was carrying on a disastrous business, would you be at liberty to inspect his books to show that he was insolvent ?

Mr. LANGTON said this was a question as to whether there was a motive for fraud. It had never been suggested

Lord Justice ATKIN intervened with the remark that it was only a question now whether this matter was one which related to inspection.

Mr. LANGTON said he was putting it on the words of the affidavit, "ship's papers."

Lord Justice ATKIN said that these words were wider than the ordinary documents, they must disclose all ship's papers. Was not the principle at the end of Rule 12 applicable to ship's papers-" discovery and inspection"?

Mr LANGTON said it was the cause of the matter the whole matter.

Lord Justice YOUNGER: Is it that you are asking for documents with regard to other matters? It is a mere accident that they are ships.

Mr. LANGTON said that as soon as be understood it he accepted it. Over and over again in every one of the cases in which he had been concerned there had been as a first issue in the case-what is the position of the plaintiff ? The plaintiff always came forward and said: "I am a man of substance," and no one on the other side said that it was not relevant to the issue. The question was whether he was fraudulent or not. Nobody had ever suggested that this was not relevant to the issue.

Lord Justice ATKIN: No one has suggested that ship's papers are incomplete because the books are left out.

Lord Justice BANKES: Your argument is that he must disclose books or papers, any relevant material with regard to the ship? Mr. LANGTON replied that he contended that it should be any material matter which

case.

would enable him to impute his adversary's The respondent said: "I am an honest man and my ship is lost." His reply was: "You are nothing of the kind; you wilfully cast your ship away." He charged the respondent with fraud, and he was entitled to know what sort of man he was dealing with. In three cases within his recollection the company had been a single ship company, and as soon as they had inspection they had inspection of the whole company. The reason why this

application had never occurred in a previous case was because the respondent happened to have other businesses, and they could not get any other idea of his financial standing if he was to be entitled to cover up everything except such very small evidence as he put forward. He was sorry if his argument did not appeal to his Lordships, but that was his submission.

JUDGMENT.

Lord Justice BANKES: The appeal does not appeal to me, and it must be dismissed.

Lord Justice ATKIN, agreeing, said he thought it was wide of the application order. He did not see that there was a question of motive, though that might have to be gone into carefully. It seemed to him at the present stage that it would be a precedent in discovery as to what were matters relevant if the appeal were allowed.

Lord Justice YOUNGER Concurred, and the appeal was dismissed.

ADMIRALTY DIVISION.

Wednesday, June 13, 1923.

"TOKUSHIMA MARU" v. "ARTXANDA MENDI."

Before Mr. Justice HILL, sitting with Captain O. P. MARSHALL, C.B.E., and Captain A. M. MORRELL, Elder Brethren of Trinity House.

Collision in dense Fog off Portuguese Coast -Disputed speeds.

The hearing was concluded of this case, which involved a claim for damages arising out of a collision between the Japanese steamship Tokushima Maru and the Spanish steamship Artxanda Mendi in the Atlantic, off the Portuguese Coast, in fog, on the afternoon of Aug. 6, 1922.

Mr. D. Stephens, K.C., and Mr. G. P. Langton (instructed by Messrs. Waltons & Co.) appeared for the plaintiffs; and Mr. F. N. R. Laing, K.C., and Mr. Lewis Noad (instructed by Messrs. W. A. Crump & Son) represented the defendants.

Mr. Justice HILL reserved judgment.

Monday, July 23, 1923.

JUDGMENT.

Mr. Justice HILL, in giving judgment, said: This is a case of a fog collision off the coast of Portugal on the afternoon of Aug. 6, 1922, between the Japanese steamship Tokushima Maru and the Spanish steamship Artxanda Mendi. The fog at the time of the collision was thick. The plaintiffs say they saw the Artxanda Mendi at 200 to 300 yards. The defendants say they saw the Tokushima Maru at 150 ft. The first contact was port bow to port bow. The Tokushima Maru's damage was by a blow 15 ft. abaft the stem and again somewhat further aft on the port bow. The Artxanda Mendi's damage was along the port side. It is agreed it was a sliding blow. The plaintiffs say it was nearly end on and the defendants an angle of one to two points. The 1okushima Maru, of 5972 tons gross and 423 ft. long, laden, was bound north; the Artxanda Mendi, of 3212 tons gross and 335 ft. long, also laden, was bound south.

The plaintiffs' case is that their vessel was proceeding on a course of N. 4 W. at full speed; that 22 minutes before the collision a fog bank was sighted ahead; that 15 minutes before the collision speed was reduced to slow, an extra look-out was placed, and the whistle was started to be sounded for fog; that shortly afterwards they entered the fog and continued at slow speed, making four knots; that seven minutes before the collision they heard a long blast apparently on the starboard bow and the engines were stopped; that long blasts were exchanged twice or thrice, the whistle of the other vessel being apparently on the same bearing and they expected to pass her starboard to starboard; that two minutes before the collision they heard a long blast finer and nearer and the engines were ordered full speed astern; that a minute before the collision they saw a bow wave and the Artxanda Mendi's port bow half a point on the starboard bow, 200 or 300 yards away, heading to cross from starboard to port; that they gave three short blasts and heard three short blasts, and they hard-a-starboarded to cant their head to starboard, and the collision followed. At the collision, they say, the Tokushima Maru was heading N. E., she having altered one point. The plaintiffs think that the Artxanda Mendi starboarded at the last and so changed her heading. After hearing the defendants' case, the plaintiffs also charge the Artxanda Mendi with porting before the Tokushima Maru was seen. They in addition make the usual fog charges as to speed and engine action.

The defendants' case is that their vessel was on a course of south by compass and ahout S. W. magnetic; that they had been in some fog for a long time; that 46 minutes before the collision, being at full speed of 9 knots, they began to sound for fog on seeing a fog bank ahead; that 36 minutes before the collision they reduced to slow, the fog being such that they could see the bows of their ship; and 26 minutes before the

collision, hearing several whistles on the starboard bow, they stopped; that 18 ininutes before the collision they went slow ahead for a few revolutions and again stopped; that 11 minutes before the collision they heard the whistle of the Tokushima Maru right ahead; and they continued to sound prolonged blasts for fog and then having run all their way off they sounded two long blasts twice or thrice, still hearing the single prolonged blasts of the Tokushima Maru; that two or three minutes before the collision they heard the Tokushima Maru approaching rapidly, and the engines were put full speed astern, three short blasts were sounded, and the helm was ported (as pleaded hard-a-ported); that the Tokushima Maru was then seen 150 ft. away a little on the port bow (according to the preliminary account two points and according to the evidence one to two points), showing a bow wave. At the collision the defendants say the Artxanda, Mendi was just gathering stern way while the Tokushima Maru was proceeding at high speed. The other charges the defendants make are the usual fog charges.

A case of this kind turns on the credibility of the witnesses and an examination of the contemporary documents. On the main question of speed I accept the Artxanda Mendi's story. Whether her speed up to 410 p.m. was justified or not, it did not contribute to the collision. I believe that the Artxanda Mendi did slow and stop as she says and that she did lose all headway and sounded two long blasts more than once and had lost all headway at the collision. On the question of helm action, I do not believe that the Artxanda Mendi substantially altered her heading before the vessels came in sight of one another. The porting or hard-a-porting was only at the time the engines were put full speed astern and did not contribute to the collision and was not improper. There was no helm action taken to alter her course after hearing the Tokushima Maru. She did not starboard as the plaintiffs think. The helm action of the Tokushima Maru was also only at the last and is not complained of. The angle of the blow is fully accounted for by the effect of the reverse engines of each, and possibly by some slight alteration of the Artxanda Mendi's heading when she lost her way.

As to the speed of the Tokushima Maru, I am not able to accept the plaintiffs' evidence. I do not know in which particular it is untrue, but in one or other particular it is untrue. There was admittedly some speed on one or other or on both vessels at the collision. The plaintiffs' surveyor estimated it at 3 to 4 knots. It was not at all upon the Artxanda Mendi; therefore it was upon the Tokushima Maru. If so, the Tokushima Maru's story cannot be true. Either the Tokushima Maru was going at greater speed than she says before she stopped or she did not stop or she did not stop when she says she did. Her case is that she was making 4 knots before she stopped. Four knots was hardly con. sistent with safety and anything over

CORY LIGHTERAGE, LTD.
("ULLESWATER ") v.
"LORD ROSEBERY."

Before Mr. Justice HILL, sitting with
Rear-Admiral G. R. MANSELL, C.B.E.,
M.V.O., and Captain A. MORRELL,

Elder Brethren of Trinity House. Collision (Dumb Barge, in Tow, and Sailing Barge in River Thames)-SeamanshipBend in River.

This case involved a claim and counterclaim for damages arising out of a collision between the plaintiffs' dumb barge Ulleswater and the defendants' sailing barge Lord Rosebery in Woolwich Reach, River Thames, on the early morning of Dec. 28, 1922.

Mr. A. T. Bucknill (instructed by Messrs. Botterell & Roche, of Sunderland and London) appeared for the plaintiffs; and Mr. J. G. Trapnell (instructed by Messrs. Holman, Fenwick & Willan) represented the defendants.

According to the plaintiffs' case, shortly before 7 a.m. on Dec. 28, 1922, the Rector, a steel screw steam tug of 106 tons gross, was in Woolwich Reach, bound from Jetty Road, Galleon's Reach, to Cory's Barge Roads, Bugsby's Reach, with four loaded dumb barges and one unloaded dumb barge in tow, of which the Ulleswater was the second rank barge on the port towrope. The weather was clear but dark, the wind about S. a fresh breeze, and the tide flood of the force of about a knot. The Rector (which while proceeding up-river, had been compelled to work over a little to the S. of mid-channel in order to pass under the stern of a vessel which had just come out of the King George Dock on the N. side of the river) had, after clearing the vessel, put her helm a-port and was working back towards the N. of mid-channel. With engines working at full speed ahead, she was making a speed of about 4 knots over the ground. The regulation masthead, towing lights and side lights were being duly exhibited on board the Rector, and a white all-round light was being exhibited on board her sternmost barge; and these lights were

burning brightly. A good look-out was being kept on board the tug and her craft.

In these circumstances those on board the Rector observed, distant about three cables and bearing about 1 to 2 points on the port bow, the red light of a sailing barge which proved to be the Lord Rosebery. The Rector kept her helm a-port and also kept her speed, and the vessels approached in a position to pass each other in safety port side to port side; but when distant only about 150 ft. the Lord Rosebery, which had continuously broadened on the port bow of the Rector, suddenly opened her green light and shut in her red, causing danger of collision. The engines of the Rector were at once reduced to half speed ahead, her helm was kept to port, and her whistle was sounded one short blast. The Lord Rosebery still came on showing her green light until she was distant only about 20 yds. from the Rector when she re-opened her red light and shut in her green light. Travelling at a considerable rate of speed she shortly afterwards, with her stem, struck the Ulleswater on the port side about amidships, doing the Ulleswater so much damage that she had to be beached on the south shore.

Plaintiffs alleged that a good look-out was not kept on board the Lord Rosebery; that that craft failed to keep her course; that she improperly and at an improper time put her helm to starboard and improperly failed to port her helm again in due or sufficient time; that she failed to comply with the provisions of By-laws 38, 41 and 42 of the Port of London River Bylaws 1914.

The case for the defendants was that on the morning in question the sailing barge Lord Rosebery, of 72 tons register, laden with wheat, was in Woolwich Reach in course of a voyage to Newport (I.O.W.). The weather was fine and clear, the wind W.S.W. a moderate breeze, and the tide flood of a force of half to one knot. The Lord Rosebery was exhibiting her regulation sailing and stern lights which were burning brightly; and a good look-out was being kept.

In these circumstances the Lord Rosebery, at the lower end of Woolwich Reach with all sails set and on her port side, was sailing to the S. of mid-channel heading slightly to the S. shore and making about three knots through the water. Shortly before 6 30 a.m. when about off Globe Wharf those on board observed the masthead, towing and starboard lights of a steam tug which proved to be the Rector, with five craft in tow, distant about halfa-mile and bearing one to two points on her port bow. The Lord Rosebery maintained her course and speed; and, when the Rector had approached to within about 200 yds. of her, still showing her starboard light, the master of the Lord Rosebery fearing collision, hard-a-starboarded and gibed his vessel. Shortly after he had opened his starboard light to the Rector and when the vessels had approached to

the

within about 75 yds. the Rector blew one short blast and, acting apparently under hard-a-port helm, closed her starboard and opened her port light to the Lord Rosebery and swung her craft including Ulleswater athwart river and across the bows of the Lord Rosebery. The master of the Lord Rosebery immediately put her helm hard-a-port: but the Rector, continuing to tow her craft across the Lord Rosebery's bow, caused the Ulleswater with her port side to collide with the stem of the Lord Rosebery and damaged her.

It was pleaded that the plaintiffs' servants or agents in charge of the Rector and/or the dumb barge Ulleswater failed to keep any or any sufficient look-out or to see or avoid the Lord Rosebery; improperly and at an improper time starboarded and/or came too far to the S. of mid-channel; thereafter improperly ported and attempted to cross ahead of the Lord Rosebery; failed to give any or any sufficient indications of their course or courses in sufficient time or at all; and failed to comply with By-laws 32, 33, 34, 38, 39, 40, 41 and/or 42 of the Port of London River By-laws 1914.

JUDGMENT.

Mr. Justice HILL, in giving judgment, said: This case is not altogether a simple one. It arises out of a collision between the dumb barge Ulleswater and the sailing barge Lord Rosebery. The Ulleswater was the second rank port side barge of five barges which were in tow of plaintiffs' tug Rector. The Rector was about 73 ft. long and each of the barges about 70 ft.; and, allowing for the distances between the various craft, the length of the flotilla from the stem of the tug to the stern of the rear barge was 290 ft. The Ulleswater was struck about amidships; and therefore from the stem of the Rector to the point of collision would be about 184 ft. The Ulleswater was laden, as was the sailing barge, which was of 72 tons register. The tug and her tows were bound up-river; and the sailing barge was bound down. The wind was W.S.W.; and therefore the Lord Rosebery at the place of collision was able to sail fairly straight down the reach. The weather was fine and clear and the tide flood about a knot in force.

The collision occurred at about 7 a.m. on Dec. 28, 1922. The port side amidships of the Ulleswater was struck and, according to both preliminary acts, it was the stem of the Lord Rosebery that was in contact, whereas some of the evidence supports that of the man on the dumb barge, that it was the bluff of the bow. He says the angle of the blow was something like three points, whereas other witnesses, on both sides, put it at nearly a right angle.

In substance the plaintiffs' case comes to this. It is quite true that the tug and tows had been navigating perforce on the south side of mid-river. They were porting back gradually to get on to their proper side and were approaching the sailing barge red to red until at a distance of 150 ft. The sailing barge starboarded,

opened her green light and shut in her red. The engines of the Rector were reduced to half speed, her helm was kept a-port and her whistle sounded one short blast. Then the Lord Rosebery re-opened her red and tried to port back but failed and struck the second rank barge.

The defendants' case is that the Lord Rosebery was sailing down with her sails on the port side, making about three knots She was a little to the south of mid-channel and was edging as she came down somewhat towards the south shore. When about off the Globe Wharf, opposite the upper end of Victoria Gardens, those on board saw, at a distance of half-a-mile and a point or so on the port bow, the masthead, towing, and green lights of the tug. The skipper in evidence at first said that he saw the lights on the starboard bow but in reply to a further question said it was the port bow; and I think it fair to say that he saw the lights on the port bow or nearly straight ahead. He kept his course and speed and went down the reach edging slightly towards the south shore. The tug and tows took no steps to keep out of the way; and the position became so dangerous that at 150 to 200 yds. the Lord Rosebery hard-a-starboarded and opened her green to the tug and tows. At 75 yds. the skipper heard a short blast from the tug, which shut in her green light and opened her red, upon which the Lord Rosebery hard-a-ported: but it was too late to avoid collision. At the time the tug and tow was edging over to the north side under port helm. The tug and tow had been on their wrong side of the river, and had to justify it. The sailing barge had harda-starboarded to a ship on the port bow; that has to be justified. Of course if, in fact, the sailing barge hard-a-starboarded to a red light on the port bow it cannot be justified. If the sailing barge hard-astarboarded to a green light on the port bow then one has closely to consider the position; and this, to my mind is the most important part of the case, because, but for that hard-a-starboarding, as it turned out, there would have been no collision. It seems to me clear that as the sailing barge altered two or three points under starboard helm, and had no time to port back, and only caught the second rank barge; if there had been no starboarding none of the barges would have been caught, which means that if the sailing barge had stood on the tug would have safely towed her craft across the bows of the sailing barge, even if the situation was as the defendants say.

The first thing I think I have to determine is, which side am I to accept on the question whether, for a substantial time, these craft, the tug and tow, were red to red with the sailing barge or, whether, as the sailing barge says, the green light of the tug was open to the red light of the sailing barge. Having heard the evidence and considered the matter with the Elder Brethren I have come to the conclusion that, upon this part of the case, I ought to accept the defen