H. OF L.]

[CT. OF App.

"lawfully left their ship at the end of their engagement" so as to bring themselves within the words of sub-sect. (a) of sect. 134 of the Merchant Shipping Act of 1894.

In my opinion, sect. 134 does not apply to the case at all. I have been unable to persuade myself that sub-sect. (c) of that section applies in any case not falling within sub-sect. (a) or (b) of that section. The words of sub-sect. (c), "in the event of the seamen's wages or any part thereof not being paid or settled as in this section mentioned," must, I think, be interpreted as meaning as mentioned in the two preceding sub-sects. (a) and (b), as those sub-sections, and those alone, contain provisions as to how the wages properly so-called are to be paid, sub-sect. (c) dealing with the infliction of penalties for nonpayment, and with that alone. If the damages were awarded by Lawrance, J. on the assumption that this section did apply, as they appear to have been, they were, in my opinion, awarded on a wrong principle; but, as I find that he stated that he would give judgment "up to such time as the men came back to this country and got work again," I think that the amount awarded is such as the seamen would have been entitled to recover as damages for illegal dismissal, irrespective altogether of the provisions of sect. 134. I am therefore of opinion that his judgment for this sum should be allowed to stand.

are

The Court of Appeal have not only awarded wages from the 10th Dec. 1904, the date of the articles sued upon, down to the date of this order, but have also allowed maintenance from the 20th Feb. 1905 down to the same date, on the ground, apparently, that "wages" in sect. 134, sub-sect. (c), includes maintenance, and that this order on appeal is the "final settlement" mentioned in that sub-section. With all respect to the learned Lords Justices, I think that their conclusion on this point is erroneous. It is obvious that the word" wages," as used in sub-sects. (a) and (b) of sect. 134, cannot include maintenance, as primâ facie wages are earned while the seamen serving on the ship and are presumably maintained. There is no reason for giving to the word a different meaning in sub-sect. (c) of the same section. And, besides, it is, I think, impossible to read the fasciculus of sections from 134 to 167, both inclusive, and especially sects. 159, 160, 161, without coming to the conclusion that the word is not used in the statute to cover "wages maintenance, and that the "emoluments" which the word " wages covers by sect. 742 of the statute are not applicable to maintenance. I accordingly am of opinion that the judgment of the Court of Appeal should be reversed in that respect, and the appeal allowed.

Judgment appealed from affirmed, and appeal dismissed with costs.

Solicitors for the appellants, Botterell and Roche, for Weightman, Pedder, and Weightman, Liverpool.

Solicitors for the respondents, Chivers and Co.

COURT OF APPEAL.

Tuesday, March 12, 1907.

(Before Lord ALVERSTONE, C.J. and MOULTON, L.J. and Elder Brethren.)

THE TACTICIAN. (a) Collision-Compulsory pilot-Duty of officers to give assistance.

There is a duty on the officers of a ship to give a pilot all information which will be of assistance to him in navigating the ship, and, if the action of the pilot shows that he is drawing wrong inferences from that information and is bring. ing about a position of danger, there is a duty on the officers to call his attention to the fact that the inferences he is drawing are not justified. Unless the pilot receives such assistance, a plea of compulsory pilotage cannot be sustained.

APPEAL by the owners of the Tactician from a decision of Bargrave Deane, J. by which he held them alone to blame for a collision which occurred between their steamship and the steamship Leander.

The collision occurred about 10.30 p.m. on the 24th Nov. 1905, at the entrance to the river Thames, to the southward and eastward of the Black Deep Lightship. The wind was from the southward and westward, fresh to moderate; the weather was fine and clear, and the tide was about high water.

The case made by the plaintiffs, the owners of the Leander, was that the Leander, a steamship of 1793 tons net and 2793 tons gross register, manned by a crew of twenty-six hands all told, was lying at anchor in the Thames estuary, near the Black Deep Lightship, in the course of a voyage from London to the River Plate with a general cargo. The Leander was heading about S.W., her regulation forward and aft anchor lights were duly exhibited and were burning brightly, and a proper anchor watch was being kept on board of her. In these circumstances the two masthead lights and the red light of the Tactician were seen about three miles off, and bearing a little abaft the port beam. The Tactician approached, keeping on about the same bearing, and showing the same lights, but, when about from 200 to 300 yards distant, her green light opened, and, coming on at great speed and shutting in her red light, with her stem she struck the port side of the Leander near the break of the forecastle, doing her great damage, so that her forehold filled, and she had to accept salvage services from several tugs before she could be brought into a place of safety.

The plaintiffs charged the defendants with not keeping a good look-out; with neglecting to keep out of the way of the Leander; and with neglecting to slacken their speed or stop or reverse their engines.

The case made by the defendants and counter. claimants was that the collison and damage, so far as they were occasioned by any fault on board the Tactician, were occasioned solely by the fault or neglect of the pilot who was compulsorily in

(a) Reported by L. F. C. DARBY, Esq., Barrister-at-Law.

Her

CT. OF APP.] charge of her. The defendants alleged that the Tactician, a screw steamship of 4765 tons net register, was proceeding up the Edinburgh Channel, at the mouth of the river Thames, on a voyage from Calcutta to London. course was N.W. by W. westerly magnetic, her speed was about eleven knots, and she had on board a general cargo; she was manned by a crew of eighty-two hands all told, and was in charge of a duly licensed pilot. A good look-out was being kept on board of her, and her regulation lights were being duly exhibited and were burning brightly. In these circumstances those on board the Tactician saw a little on the starboard bow the white lights of the Leander about two and a half miles off. The pilot judged the lights to be those of a vessel proceeding down the channel, and soon after the glimmer of another light, which proved to be a dull white light, was seen by those on the Tactician. Shortly after the lights of the Leander were seen, the helm of the Tactician was starboarded to pass between her and the North Shingles Buoy, and, when she was discovered to be stationary, the helm of the Tactician was put hard-a-starboard and her engines were put full speed astern, but the stem and starboard bow of the Tactician struck the port bow of the Leander, causing damage to both vessels. Just before the collision the helm of the Tactician was put harda-port. The defendants further alleged that all the orders given by the pilot were promptly carried out by those on the Tactician, and that those on the Leander contributed to the said collision by omitting to make any sound or other signal of warning when the Tactician was seen to be approaching so as to involve risk of collision, and counter-claimed for the damage the Tactician had sustained.

The case was heard on the 21st Dec. 1905, and judgment was reserved and given on the 16th Jan. 1906.

Rufus Isaacs, K.C., Laing, K.C., and Dawson Miller appeared for the plaintiffs.

Pickford, K.C., Aspinall, K.C., and F. E. Smith appeared for the defendants.

Jan. 16, 1906.-BARGRAVE DEANE, J.-This is a collision which took place on the night of the 24th Nov. 1905, at the mouth of the river Thames, about 10.30 p.m., between the Leander, which is a vessel of 2793 tons gross register, and the Tactician, a steamer of 4765 tons net and probably between 7000 and 8000 tons gross register; and the sole question in the case is whether, in addition to the pilot, there is any blame to attach to the officers of the Tactician. I will clear away at once the only point which is made against the Leander, which is that they might have done something to avoid the collision. It is entirely a question of seamanship as far as I understand, and, as I said I would do, I consulted the Elder Brethren, and they are of opinion that there was nothing which ought to have been done by those on board the Leander which they neglected to do. It is suggested that they might have sounded the whistle. The Elder Brethren think that might have been misleading, and, with regard to sounding the bell, that is not one of the things that they would recommend, and they say in their opinion no blame attached to the Leander for not making some signal. She was at anchor.

[CT. OF APP.

The pilot of the Tactician is undoubtedly to blame, and therefore I will not trouble myself to deal with him at all. The Leander was at anchor, as I find as a fact, somewhere about three or four cables lengths to the eastward and southward of the Black Deep Lightship. It does not very materially matter exactly where she was, but in our opinion she was well away on the starboard side of the fairway of vessels coming up Channel heading S.W., with her two riding lights burning. The Tactician was bound on a voyage from Calcutta to London, and she passed the Edinburgh Lightship, leaving it on her starboard hand, and she proceeded on, and the first question which occurs to me as material is, the place where after passing the Edinburgh Lightship she first starboarded.

Those on board of her say she starboarded from one to two cables lengths after passing the Edinburgh Lightship. I do not believe she did. I think that she kept on her proper course, keeping on the starboard side of the channel, and that she did not starboard, as they say she did, so as to pass close to the Gas Buoy, which is on the south side of this channel. It would be taking her out of her proper course, and, for a reason I will give at once, 1 think it is clear she did not at that time starboard. Soon after passing the Edinburgh Lightship, according to the evidence of the second officer, who was on the bridge of the Leander, the Tactician was noticed coming up from the Edinburgh Lightship; he noticed her when she passed the Edinburgh Lightship, because he says her funnel had crossed the light for a moment, and he kept observing and seeing her port light, and he kept her port light in view until very shortly before the collision. Those on board the Tactician, the pilot and master and third officer, who were all on the bridge, agree in this, that when the lights of the Leander were reported to them, and they saw them, the light of the Black Deep Lightship was between the two white lights of the Leander, and that the lightship's light kept there. Now, the best test that can be made as to where I am to find the truth in this story is that fact. If those on board the Tactician thought that the vessel whose two lights they saw was a vessel moving, as they thought, across their bows, they must have been going on a right angle course, approximately to that vessel, to have kept the lightship's light between the two lights of the vessel they saw; otherwise, if they were moving away to the port side of that vessel under a starboard helm so as to pass green to green, it is impossible that that lightship's light could have kept in that position. You must have the two vessels going approximately about the same speed, and at an angle like that, to keep a light exactly in the same position between the two lights of a vessel across them. And therefore, in my opinion, the story told by those on board the Tactician is not accurate, when they say that they were keeping an observation on this vessel, and they are not to be believed when they say they saw the vessel and kept her lights in this particular position with regard to the Black Deep light. In my opinion, the Tactician did not see those lights when she says she saw them. In my opinion, the Tactician kept upon her proper course, after passing the Edinburgh Lightship, a great deal further to the northward and westward than she

says she did, and she did not notice the lights of the Leander until she got a great deal closer to her. And when I look at the story told here and the story told in the pleadings and in the deposition of the master and in the log, it is very difficult to believe that the story that has been told here, about a green light and about the conversation with regard to it, is a story which was not brought into being somewhere about the time that the pilot came to London and communicated with the master, and the master went and had a conversation with him, or he came and saw the master, and they had a conversation in London. It is a very unpleasant incident in this case that this meeting should have been arranged; it was arranged by appointment, before this case came into court and before the evidence was given. However, there it is. The second officer of the Leander says "this vessel's port light continued in view to me until very shortly before the collision," and we were on his port bow until he starboarded and very nearly cleared us." The story of the Tactician is an impossible story. If, when they saw the Leander's lights, starboarding, as they say they did, shortly after passing the Edinburgh Lightship, they never could have touched the Leander, never could have gone near her; therefore this story is an impossibility, and I am driven back to the story told by the Leander, which is consistent with the facts of the case as now known-viz., that the Tactician never had the Leander on her starboard bow until she starboarded shortly before the collision.

66

That being so, the question arises, What were the master and third officer of the Tactician doing? I have got the story of this dim light that was seen; I have got the fact, told by them, that they noticed that, on the course they were going, the two lights of the Leander did not move as regards the Black Deep Lightship, and they say that went on for some minutes.

The Elder Brethren, who advise me in this matter, say that there was a very strong duty on the part of the master, not, perhaps, on the part of the third officer, because he was subordinate, but on the part of the master, to have brought the attention, pointedly, of the pilot to the fact that he must be mistaken in thinking that the glimmer of these lights which he saw were the lights of a crossing vessel or moving vessel, and the master should have pointed out that these lights were not shifting, and that by the fixed light of the Black Deep it was perfectly certain that the vessel was at anchor; and it does not do for a captain to say as he did say, in his evidence, this-I will read his words: "I was anxious about these lights; I had no power to interfere with the pilot." That is a wrong view of his duty.

The captain cannot be heard to say: "When a pilot is in charge of my vessel I am free from the necessity of calling his attention from time to time to things which, in my opinion, are material and important to him." As the officer in charge of this vessel, it was his duty to call the attention of the pilot from time to time to what he believed to be an error of judgment, and he is not entitled to fold his arms and say: "I have no responsibility towards the pilot in charge of my ship." In this particular case it is quite clear that the captain saw grounds for anxiety. He has chosen

[CT. OF APP.

to say: "I thought the pilot was in charge, and I have no right to interfere with him." I think he is wrong, and I think, if the captain had done his duty in this particular case, he would have forcibly called the attention of the pilot to the fact that the lights were clearly stationary lights, and that they were not the lights of a vessel that was moving. If he had done that, the pilot would have starboarded very much earlier, and there would have been no collision. Therefore, on this ground, I am of opinion, and the Elder Brethren agree with me in this matter, that the master of the Tactician was very much to blame in not calling the attention of the pilot more than once to the fact that these lights were stationary lights, and that the pilot was mistaken in his judgment. If he had done so, and the pilot had still insisted, the matter would have been different. He did not do his duty; he neglected to call the pilot's attention to these lights, and therefore did not give the pilot that assistance which the pilot was entitled to have from this master on this particular occasion. That is the real main point in this case, but there are one or two other matters which have been mentioned which I will deal with. One is the question whether this vessel, the Leander, was in the usual place, and whether those on board the Tactician might not have been misled by what they saw. The Elder Brethren advise me in this matter again, that in no part of the river Thames are you certain to find vessels not at anchor. Any. thing may happen to a vessel proceeding out to sea or coming up from sea which may cause her to anchor in any particular place. You must never be surprised in an estuary like the Thames to find vessels at anchor in any particular spot; and one of the Elder Brethren has told me that he himself has often, from necessity, been obliged to anchor in one of these channels where vessels are constantly passing. But this collision was in the vicinity of a lightship. Very often vessels are brought up near a lightship for purposes connected with the Trinity House; there might have been a Trinity vessel anchored close to this lightship on duty. You have no right to assume, in coming up a channel like the Thames or any of these channels, if you see a light, that it is or is not a vessel at anchor because you are accustomed or not accustomed to see a vessel at anchor in that particular spot. Therefore the arguments which counsel for the defendants have used with some force, in our opinion have no effect in this particular case. The case I think, as far as I am concerned, is clear. In my opinion this collision was caused by the default of the pilot, but it also might, in my opinion, have been avoided if the master of the Tactician had done what I conceive to be his duty in giving his advice and his opinion to the pilot on this particular occasion, and that by failing to do that he did not do his duty, and did not assist the pilot as the pilot ought to have been assisted, and therefore I find that the master is to blame as well as the pilot.

On the 17th Feb. 1906 the defendants gave notice of appeal asking that the judgment might be varied, and that it might be adjudged that the collision was occasioned solely by the fault or default of the pilot.

Sir R. Finlay, K.C., Aspinall, K.C., and F. E. Smith for the appellants.-The plea of compul

sory pilotage put forward on behalf of the Tactician should succeed. The learned judge thought the pilot was to blame, but has held that the pilot ought to have received more assistance from the master, and so has held the ship to blame. The judgment is open to the objection that it tends to encourage interference with the pilot, and the danger of a divisum imperium has been long ago pointed out :

The Peerless, 2 L. T. Rep. 25; Lush. 30, 103;
The Christiana, 7 Moo. P. C. 160, at p. 171.

A master has no right to interfere with the pilot except in cases of great necessity :

The Argo, Swa. 462, at p. 464;

The Duke of Manchester, 6 Moo. P.C. 90.

The evidence shows that the master expressed his opinion in a conversation he had with the pilot; he did all that he was bound to do. It rests with the pilot to form an opinion on the suggestion made by the master, and the latter cannot be blamed for the pilot's wrong inference from the facts:

The Oakfield, 54 L. T. Rep. 578; 5 Asp. Mar. Law
Cas. 575; 11 P. Div. 34.

Rufus Isaacs, K.C., Laing, K.C., and Dawson Miller, for the respondents, were not called on.

Lord ALVERSTONE, C.J.-Notwithstanding the very able argument of counsel for the appellants, I do not see my way to interfere with the judgment of Bargrave Deane, J. I think the cardinal principle to be borne in mind in these cases, that do raise difficult questions of law and very often difficult questions of fact, is that the pilot is in sole charge of the ship, and that all directions as to speed, course, stopping and reversing, and everything of that kind, are for the pilot; and I entirely agree, if I may say so, with great respect, with the opinions of the very learned judges, from Dr. Lushington downwards, to which attention has been called, as to the danger of a divided command, and the danger of interference with the conduct of the pilot; and that if anything of that kind amounts to an interference or a divided command serious risk is run of the ship losing the benefit of the compulsory pilotage. I do not wish to put it any stronger than it is put in the passages that have been cited by counsel for the appellants, and I do not think he has in any way over stated the importance of that principle.

But side by side with that principle is the other principle that the pilot is entitled to the fullest assistance of a competent crew, of a competent look-out, and a well-found ship. I agree with counsel for the appellants that the cases in which the master has to interfere at all with the pilot are very rare and very few, but I think the passages he has cited from the cases show there is a distinction, or may be a distinction, between interference and bringing to the pilot's notice anything which the pilot ought to know.

The pilot has a good many things to attend to, particularly in a place like the Thames, and certainly it is not putting the case too high to say that he is entitled to full information with regard to any surrounding fact which it is important he should know. I do not quite take the view that the lights-the further light-of this vessel were reported. If there really was a green light visible, that green light was not VOL. X., N. S

[CT. OF APP.

reported, and very great difficulty would have arisen if there had been any green light in view. Of course, it is perfectly obvious that there never was a green light. In those circumstances I think the first thing we have to consider is, Was the captain informed by the pilot that he had seen a green light and was confident that the vessel was going down channel? Looking at the judgment of Bargrave Deane, J., I am not at all satisfied that he believed that part of the story. He comments pointedly upon the absence from the statement before the Receiver of Wreck of any reference to a green light at all, or any reference to the pilot having seen a light which he thought was a green light. Speaking for myself, I must say I should have had much more doubt about the case if I had believed the story that the pilot had said he saw a green light, and there was such a state of things as was consistent, for any appreciable time, with the pilot having seen a green light. I should take the view, however, on this evidence, that the captain's story that the pilot told him he had seen a green light, and was confident it was a green light, was not true. I cannot conceive such a thing. I cannot but think that that part of the case was unproved before the captain gave his evidence in court.

Now, quite apart from that, one must for a moment look at what are the admitted facts of the case. The course which counsel for the appellants has marked upon the chart, and which is the course I had in my mind marked off, is substantially straight for the Black Deep Lightship, afterwards starboarding a little. The idea of the pilot was to go fairly close to the Shingles Buoy before shaping a course up into the river Thames. This was a vessel going eleven knots. The tide, apparently, had not very much effect upon her. It does not make much difference because the admitted facts are that for a period of nine to ten minutes at least two white lights were seen forming a rough triangle on either side of the Black Deep light. Whatever variation there was in those lights, it is said never to have been enough to take the Black Deep light outside either of those two lights. She keeps on her course, it may have been for over mile, and all the time she had the Black Deep light inside those two white lights. We are advised, and we have both come to the conclusion by our unassisted knowledge of the matter, that a very small portion of those nine minutes would be sufficient to satisfy any competent man that the idea that those two lights were on a moving vessel, bound in any direction, must be a mistake.

a

Under those circumstances the only thing that is put against that fact being called to the attention of the pilot is that there was some conversation as to the light which the pilot thought was a green light and the captain thought was not. Even if it took place it falls far short of the pilot saying, "I am confident it is a green light."

Then, would it have been a breach of the principle laid down in the various authorities to have said to the pilot, without strong language or with it, "You must be mistaken. Look, those lights have kept ahead of us for three or four minutes." I think that is what Sir James Hannen recognised when he pointed out in The Oakfield (ubi sup.) that notice-I will not use a word so high as "remonstrance,"

3 Z

because it might be thought that remonstrance involved interference-that notice and suggestion are not that interference of which the danger has been pointed out by Dr. Lushington. Though I do not know that I should have framed my judgment quite in the same way, in substance I entirely agree with the judgment of the learned judge. I do not know that I should have spoken of "responsibility towards the pilot," but in my opinion the pilot did not have all the assistance he was entitled to have from the competent man beside him; and any competent master would have appreciated that it was not a moving vessel, and ought to have called the attention of the pilot to the fact. If he had, he would not be in any way interfering with the pilot's command. This appeal, therefore, must be dismissed.

MOULTON, L.J.-I am of the same opinion, and for the same reasons. I do not think this case raises in any way the question of the duty of the master to interfere with the authority of the pilot, but I think that just as the pilot is entitled to the assistance of the master and crew of the ship in obtaining information as to the surrounding circumstances, so in the present case he was entitled to the assistance of the master in calling his attention to the fact that the inferences he was drawing from the surrounding circumstances were such as a competent mariner ought not to draw. It was impossible for the captain to see the Black Deep light between the two white lights of the steamer stationary for so long without realising, if he was a competent mariner, that the ship must itself be stationary; and inasmuch as the action of the pilot showed he was not drawing that conclusion, I think it was the duty of the master at all events to call his attention to it and put prominently before his mind the very questionable character of the course that he was pursuing.

Solicitors for the appellants, Pritchards and Sons, agents for Simpson, North, Harley, and Co. Solicitors for the respondents, Thomas Cooper and Co.

March 25 and 26, 1907.

(Before Sir GORELL BARNES, P., MOULTON and KENNEDY, L.JJ.)

THE COMMONWEALTH. (a) Collision Insurance-Total loss-Owners part insurers-Payment by insurers under a valued policy-Recovery from wrongdoer of less than agreed policy value-Division of amount recovered between owners and insurers.

A vessel sunk by a collision had been insured with a mutual insurance association for 1000l. under a valued policy, the value of the vessel being agreed at 13501. The insurance association first paid 500l. to the owners in respect of the loss, and then, settling for a total loss, paid a further 5001. The owners of the defendant steamship admitted liability. The registrar assessed the value of the ship at the time of the collision at 1000l., and that amount was paid into court by the defendants in the damage action.

The owners of the sunken rossel asked that the (a) Reported by L. F. C. DARBY, Esq., Barrister-at-Law.

350

[CT. OF APP.

money paid into court in respect of the value of the hull should be paid out to them and the insurance association in the proportions of 13ths and 1998ths respectively on the ground that, as they were their own insurers to the extent of 3501. on an agreed value of 13501., they were entitled to participate in any salvage recovered from the wrongdoer, and they also claimed the same share in the interest paid into court by the wrongdoer in respect of the value of the hull.

Held (affirming the decision of Bargrave Deane, J.), that the owners of the sailing vessel, being in part their own insurers, were entitled to participate in the amount recovered from the wrongdoer in the proportions claimed by them. Held, further (reversing the decision of Bargrave

Deane, J.), that the owners of the sailing vessel were also entitled to the same share in the interest paid into court in respect of the value of the hull.

SUMMONS for an order for payment of money out of court.

On the 3rd May 1901 the schooner Welsh Girl was sunk by a steamship in a fog.

The Welsh Girl was insured in the Dee Shipowners' Mutual Insurance Association for 10907. by a policy in which she was valued at 13591.

On the 21st April 1902 the insurance association paid 500l. on account of the loss, and, settling for a total loss, paid a further 500l. on the 25th July 1902.

In Oct. 1902 a writ was issued in the name of the owners of the Welsh Girl by the insurance association against the owners of the steamship Commonwealth, and on the 13th Jan. 1904 the owners of the Commonwealth admitted liability, subject to a reference to the registrar and merchants to assess the amount of the damage.

The reference was held on the 20th June 1904, and the registrar found that the following amounts were due from the owners of the Commonwealth: (1) Value of the Welsh Girl, 10097.; (2) freight, 1351.; (3) cost of deposition, 17.; (4) agency and postages, 51. 58.; making in all, 11417. 58.

Disputes then arose between the owners of the Welsh Girl and the insurance association as to how this money was to be divided, and on the 11th Dec. 1905 the owners of the Commonwealth obtained leave to pay into court 11411. 5s. and 2077. 1s. interest, making in all 13481. 68., and were discharged from the action.

On the 22nd Feb. 1906 the owners of the Welsh Girl issued a summons asking for an order that the sum of 13481. 6s. paid into court should be paid out to them and the insurance association in the following proportions: 4261. 6s. 1d. to the owners of the Welsh Girl, and 9217. 19s. 11d. to the insurance association.

350

1350

The owners of the Welsh Girl alleged that they should be regarded as their own insurers to the extent of 350l., and therefore claimed 2591. 58. 2d., being ths of the 10001. paid into court as the value of the hull. They also claimed the amount paid in respect of the loss of freight, 1357.; the amounts, 1l. and 51. 5s., paid in respect of the deposition and agency charges; and 727. 138. 4d., being interest on freight, and of the amount paid into court as interest on the value of the hull, making in all 473l. 3s. 6d.

the