OF

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JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

Reported by J. P. ASPINALL, Esq., Barrister-at-Law.

April 23 and 24, 1873.

(Present: The Right Hons. Sir JAMES W. COLVILE, SIR R. PHILLIMORE, Sir MONTAGUE E. SMITH, Sir R. P. COLLIER.)

THE BOUGAINVILLE V. THE JAMES C. STEVENSON. Collision Sailing ship Steamer Duty ofLights-Regulations for preventing Collisions at Sea, Articles 15 and 16.

When a steamer sights a sailing vessel in the night time at a distance of three miles, but, owing to the fact that the sailing vessel's lights are not visible, cannot ascertain the course of the sailing vessel, it is the duty of the steamer to slacken speed and wait to ascertain that course before adopting any decided manœuvre for the purpose of avoiding the sailing vessel. If the steamer immediately on sighting the sailing vessel adopts such a manœuvre, as by porting, and a collision ensue without fault on the part of the sailing vessel, the steamer is alone to blame. THESE were cross appeals from an interlocutory degree or sentence of the Vice-Admiralty Court of Gibraltar, in a consolidated cause of damage brought by and on behalf of the master and the owner of the British steamship James C. Stevenson against the French barque Bougainville and her freight, for the recovery of damages in respect of losses sustained by the owner, by reason of a collision between the two vessels; and by and on behalf of the master and the owners of the barque Bougainville, against the steamship James C. Stevenson and her freight to recover damages in respect of the same collision.

The collision occured between 11 and 12 on the night of 29th March 1872 in the Straits of Gibraltar.

The case on the part of the James C. Stevenson was that she was proceeding under steam, steering about due W., with her masthead and side lights exhibited and burning brightly, and with a fresh wind blowing from the southward, when a vessel under sail, which proved to be the Bougainville, was seen ahead at the distance of about three miles. The Bougainville was apparently approaching in an opposite direction, but no light could then be seen on her. The helm of the James C. VOL. II., N.S.

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Stevenson was ported in order to keep her out of the way of the Bougainville, and the Bougainville still appearing to be standing towards the James C. Stevenson, the helm of the James C. Stevenson was put hard a-port, and the green light of the Bougainville was then for the first time seen. The engines of the Bougainville were stopped, but a collision occured, the stem of the Bougainville striking the James C. Stevenson on the port bow.

The main grounds of blame charged by the owner of the James C. Stevenson against the Bougainville were, that the lights of the latter were not so exhibited and placed as to be visible to the James C. Stevenson, and that she (the Bougainville) improperly deviated from her course under a starboard helm.

The case on behalf of the Bougainville was that she was passing through the Straits of Gibraltar on a voyage from Coromandel coast to Marseilles on the night of the 29th March 1872, with a crew of sixteen hands all told. At about 11:35 p.m. of the said 29th March, the wind being west and by south, and the weather squally and obscure at times, the Bougainville was proceeding through the Straits, steering her proper course, east by north by compass, with her regulation lights properly placed and brightly burning, when the masthead light of a steamer was reported about two points on her starboard bow, and appearing to be about three miles distant. The barque proceeded on her course, and shortly afterwards the red lights of the steamer became visible, and she came on at right angles to her original course and immediately across the bows of the barque by first porting and afterwards hard porting her helm, and a collision thereby becoming inevitable; the helm of the barque was put hard a-starboard to deaden the force of the collision, which immediately took place with tremendous force, the iron stem and part of the bow of the barque striking the port-bow of the steamer in a slanting direction, from aft to forward, about eleven feet abaft the stem.

On the part of the owners of the Bougainville, it was submitted that the evidence showed that her lights were, before and at the time of the collision, properly placed and brightly burning, in accordance with the maritime regulations in regard to the lights directed to be carried by sailing vessels, and that her duty was to keep her course,

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which she did, until she put her helm hard-astarboard to ease the blow of the collision, and that the duty of the steamer was to have kept clear of her, which although she might easily have done, she failed to do.

The learned judge of the Vice Admiralty Court held both vessels to blame; the Bougainville, because her lights did not give a uniform and unbroken light over an arc of the horizon of ten points from the stern to two points abaft the beam as required by Articles 3 and 5 of the Regulations for preventing Collisions at Sea, which contributed to the collision; and because she neglected to keep her course; the James C. Stevenson, because she did not make use of the means in her pocket for keeping out of the way of the Bougainville, which means were sufficient and would have accomplished that object, and would have been resorted to by a man of ordinary nautical experience and prudence, as he was bound on ascertaining the Bougainville to be a sailing ship to have slackened speed or stopped, or taken other means to keep out of the way, and the neglect to do so was a breach of Articles 15 and 16 of the Regulations.

From this decree the owners of both vessels appealed; the owners of the James C. Stevenson on the ground that she had by porting her helm done all that was necessary to keep out of the way of the Bougainville within Article 15; that she was not bound to stop and reverse, and that if she took any erroneous measure, it was owing to the want of lights on board the Bougainville;-the owners of the Bougainville on the ground that the evidence showed that her lights were properly placed, and that she kept her course after sighting the steamer until immediately before the collision.

The facts and arguments are fully set out in the judgment of the Judicial Committee.

Milward Q.C. and Clarkson for the owners of the James C. Stevenson.

The Admiralty Advocate (Dr. Deane, Q.C.) and Dr. Tristram for the owners of the Bougainville.

April 24. The judgment of the Court was delivered by Sir R. PHILLIMORE.-This is an appeal from the decision of the judge of the Vice-Admiralty Court at Gibraltar in a case of collision between a steamer and a sailing vessel. The collision took place in the Straits of Gibraltar, according to the best conclusion their Lordships can come to from the evidence, somewhere about 8 miles east of Tarifa. The nature of the damage was this: The sailing vessel ran into the steamer at right angles 10 feet abaft the stem. The consequences of the collision were very serious to both vessels, both being obliged to put into Gibraltar on account of the damage they received. The learned judge of the court below found, upon the evidence, that both the vessels were to blame, and he made the usual decree. From that decree appeals have been prosecuted to the Judicial Committee of the Privy Council by both parties.

It will be convenient before stating the conclusions at which their Lordships have arrived, to notice in the first instance the case of the steamer who appeared as the first plaintiff here, and also in the court below. She was called the James C. Stevenson. She was a screw steamer of 1226 tons, and 250 horse power, and was sailing from Calcutta with a general cargo for London. She passed through the Suez Canal and arrived at the entrance of the

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Straits of Gibraltar on the night of the 29th March. She says, that at forty minutes past eleven on that night, being eight miles from Tarifa light, which bore W. by N., and steering W., and the wind, which was squally, being W. inclining to S., the night being clear but cloudy (it is not immaterial to observe this), and proceeding at the rate of 8 knots an hour; while so proceeding a sail was reported right ahead, distant about three miles, apparently coming end on; but she says no lights were visible. The course which she pursued was immediately to port, and she appears from the evidence to have hard-a-ported almost directly afterwards, by which she fell, before the collision took place, seven points off from her original course. It is important to observe here that there is no dispute at all that those on board the steamer were perfectly aware that the vessel right ahead of them was a sailing ship, and as the learned judge of the court below remarked, they must have known perfectly well that she was coming directly through the Straits with the wind directly aft. It is also important to observe that the captain of the steamer entirely misapprehended the existing regulation with respect to his duty in such circumstances. He says in his evidence, "I think that it was the duty of the other vessel, although a sailing vessel and myself a steamer, to have ported her helm, because she was running free, and it is the rule of the road; and I say that, although we were meeting each other stem on. It would be quite different if she had been close hauled." It is hardly necessary to state that this opinion of the captain of the steamer is directly at variance with the existing regulation of Article 15, viz., that if two ships, one of which is a sailing ship and the other a steamship; are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing ship. The steamer ascribes this collision to two circumstances; first, to the invisibility (if I may use such an expression) of the lights on board the sailing vessel-it not being disputed that she carried lights-their invisibility resulting from their improper position; and also to the sailing vessel having starboarded instead of keeping her course. That is the case, stated briefly, on behalf of the steamer.

The case on behalf of the sailing vessel may be also stated in a few words. She was a French iron barque of very large tonnage, and was coming from the Cape of Good Hope to Marseilles. She says that on this night, when she was due south of Europa Light, and midway between it and Ceuta Light, she saw the white light of a steamer, which proved to be the James C. Stevenson, two points on the starboard bow, and distant about three miles. Both vessels agree in putting the distance at which they were mutually discerned at about three miles. She says the wind was W.S.W., one point on the starboard quarter, and her head was E. by N. Then she gives an account of her sails. She says she had her courses, fore and maintopsails, maintop-gallant sails, and two gibs set, the starboard clew of the mainsail being hauled up. She gives the same account of the night that the other vessel does. She says that the white light of the James C. Stevenson was discovered at 11.35, and that she was supposed to be steering west; that shortly afterwards the red light of the James C. Stevenson was observed, that her course was not discovered by those on board the sailing vessel

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until the steamer was seen at about 300 yards distant. Then she says that the Bougainville had hitherto been kept on her course supposing that the steamer would keep out of her way, but upon the hull of the James C. Stevenson being discovered, and it being found that she was coming on at right angles towards the bows of the Bougainville, and it being then evident that a collision was inevitable, the helm of the Bougainville, was put hard to starboard, but the Bougainville only fell off one point before the collision. Now she on her part ascribes the collision to these three circumstances, that is by her pleading and by the argument of her counsel. She says that the collision was caused by the rash and improper conduct of the steamer in not waiting to ascertain what course the sailing vessel was taking; she says that the steamer ought at all events to have reversed her engines, which would have been one mode of preventing the collision; and lastly, the ship says that if the steamer did not choose to wait, she ought in the first instance to have starboarded instead of ported.

In considering this case, it will, I think, be convenient to assume in the first instance that the lights were not visible. On that assumption what, according to the 15th Article, was the clear duty of the steamer? It was to get out of the way of the sailing vessel. What getting out of the way is must depend, of course, on the circumstances of each particular case. It may be by porting, it may be by starboarding it may be by stopping. But according to her own version of the story, the steamer was aware that the sailing vessel was coming directly through the Straits with the wind directly aft, but she says that owing to the absence of her lights she had no indication of what course the sailing vessel was pursuing. That vessel was going at the rate of 8 or 9 knots an hour, and their joint speed must have been something like 17 or 18 knots. Being, as she says, in uncertainty as to the course the sailing vessel was steering, it was surely not the part of a prudent master immediately to take the active and decided step of porting, at the rate which she was then going, of between eight and nine knots an hour, which would carry her to the opposite coast across the bows of the ship. If she was in doubt as to the course of the vessel approaching her, as she says, stem on, or a little upon a starboard bow, and as the evidence in their Lordships' opinion seems to prove rather more than that, between one and two points cn her starboard bow, surely it was the part of a prudent master to have waited until he could ascertain which course the sailing vessel was pursuing. The 16th Article seems to be precise upon this point. "Every steamship when approaching another ship so as to involve risk of collision, shall slacken her speed." There is no reason why she should conceive that the ship was going to the Moorish side of the Strait, although some_suggestions were made to that effect. In their Lordships' opinion, therefore, the judge came to a perfectly sound conclusion upon this part of the case, that is in holding that upon the steamer's own statement, upon the assumption that the lights were not visible owing to their improper position, nevertheless, she sinned against the rules of navigation laid down for preventing these unfortunate collisions by not slackening her speed, or waiting, or taking any of those precautions which would

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have enabled her before she took the decided step of porting to ascertain on what side the sailing vessel was going. It is not necessary, in their Lordships' opinion, therefore, to inquire whether it would have been a prudent course on her part, if she elected not to wait, to have starboarded instead of porting, by which manoeuvre she cut in between the ship and the lee shore at the rate of seven knots an hour. Their Lordship's think that the finding of the learned judge on this part was perfectly correct, and will advise her Majesty that it be affirmed.

There then remains the other part of the case, upon which the greater part of the argument has been addressed to their Lordships, namely, as to whether, in the circumstances of this case, it must not be holden that the conduct of the sailing ship contributed to the collision ? First, as to the contribution of the collision, which is said to have been made by the absence of the proper lights, that is to say, by the lights not being placed in a position in which they were visible. The law does not require any particular place at which the lights should be affixed; though no doubt it does require that they should be so placed as to be properly visible within the scope of the regulations upon that point; but no particular place is pointed out. The evidence in this case establishes these points with regard to the lights, first, that they were carried, and secondly, that they were proper lights, properly screened; and their Lordships incline to the opinion that it also is proved that they were carried in the place in which they were usually carried by French vessels. There has been considerable discussion upon the evidence as to whether the testimony of the master of the ship be credible with regard to the cutting or arching of the foresail, which, according to his evidence, to which he was not cross-examined, and according to the evidence of another witness, was expressly done for the purpose of rendering these lights visible. The vessel was a very large ship, and she had come all the way from Calcutta, and the presumption is in favour of her statement as to the lights. It may here be observed that if the allegation were correct on the part of the steamer, that the sailing ship had contravened the rule of navigation in not keeping her course, but in starboarding, it is quite clear that that position is fatal to the other contention that her green light was not visible, because, if the sailing vessel had starboarded earlier than she said she did, unquestionably, by that manoeuvre, she must have shown her green light, which it is proved was carried, and which it is proved was of proper quality. She must have shown her green light to the approaching steamer, and have given her that information of which she complains that she was deprived. The learned judge of the court below seems, on the whole, to have come to the conclusion that there was a deficit probatio, upon this particular and material point, that it was incumbent upon the sailing vessel to have proved by more conclusive evidence than she adduced, that these lights so placed in the stern of the vessel were visible by the circumstance that the foresail was cut or arched in the manner described. The learned judge seems to have come to the conclusion that there was not sufficient evidence to warrant him in thinking that this point was established, and therefore to have decided on that ground principally that the ship contributed to

this collision. Their Lordships do not think it necessary to express any opinion as to the conclusion at which they might have arrived if this particular matter had come before them as a court of first instance, whether they would or would not have been satisfied with the evidence which was produced on behalf of the sailing vessel to the effect already stated, because their Lordships are clearly of opinion, after consulting with their nautical assessors, and after a review of the whole circumstances of this case, that the sailing vessel coming through the strait with the wind, as described, was perfectly and clearly seen at a distance of three miles as stated by the steamer, but at all events between two and three miles; that upon the assumption that the lights were not visible, it was still the duty of the steamer not to take that decided course which she did take, in perfect ignorance, according to her own statement, as to which way the sailing vessel was proceeding; that it was very imprudent, rash, and careless navigation, and was the real cause of this collision; and even assuming that the lights were placed in a wrong position, and therefore were not visible, their Lordships are of opinion, upon the particular circumstances of this case, that it would not be right to come to the conclusion, that the invisibility of those lights could, in any legal sense of the term, and according to the judgments upon the question of contribution to negligence, properly be said to have contributed to this collision.

Their Lordships have not failed to consider the point which was urged on behalf of the

steamer, that the starboarding of the sailing

vessel might have contributed to this collision. Their Lordships are clearly of opinion upon the evidence that the starboarding was done at so late a period as to take it completely out of the category of any contribution to the collision; indeed if the starboarding had been at an earlier period it is fatal to the contention of the steamer, that she was not apprised by seeing the green light of the course which the other vessel was pursuing; because the dilemma is obvious; if the starboarding took place at an earlier period, then the green light, which is proved to have been there, must have been seen; if the starboarding tock place, as we are inclined to suppose, at a later period, then there was no contribution to the collision by that manoeuvre at that late period in the history of the case.

Their Lordships will therefore humbly advise her Majesty that the decree of the judge of the ViceAdmiralty Court should be varied so as to pronounce that the steamer is alone to blame for this collision. We think that the costs must follow this decision, and that the sailing vessel will be entitled to her costs both here and in the court below.

Decree varied accordingly. Solicitor for the owners of the James C. Stevenson, Thomas Cooper.

Friday, April 25, 1873.

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(Present The Right Hons. James W. COLVILE, Sir BARNES PEACOCK, Sir MONTAGUE SMITH, and Sir ROBERT COLLIER.)

THE ADA; THE SAPPHO.

Collision-Crossing vessels-Taking pilot-Special, circumstances-Regulations for preventing Collisions at Sea-Arts. 14, 16, and 19.

Two vessels bearing down at the same time from different directions upon a well-known pilot station to take pilots on board are to be treated as crossing vessels within the meaning of Art. 14 of the Regulations for Preventing Collisions at Sea, if their courses, if continued, would intersect; and the fact of their seeking pilots at the same place is not such a special circumstance within the meaning of Art. 19 as will take them out of the operation of the rule requiring that the ship which has the other on her own starboard hand shall keep out of the way of the other. Where a vessel is approaching a pilot station to take a pilot, and has, as regards another vessel doing the same thing, the right to keep her course, she has a right to keep sufficient headway on her to give her steerage way, so as to get on her proper course after taking a pilot, and is not bound within Art. 16 to stop and reverse. The other

vessel is bound to stop and let her take her pilot, or to take some other means of avoiding her.

THIS was an appeal from a decree of the High Court of Admiralty in cross causes of collision, against the steamship Ada, and by the owners of instituted by the owners of the steamship Sappho the Ada against the Sappho. The place of collision. was the mouth of the Humber; both vessels were bound for Hull, the Ada coming from the southeast, and the Sappho from the north-east, and both were approaching a pilot cutter lying at anchor to pick up a pilot. The learned judge of the High Court of Admiralty held that the vessels were to be treated as crossing vessels. under Art. 14 of the Regulations for preventing Collisions at Sea, and that the fact of approaching a well-known pilot station was not such a special circumstance as took them out of the operation of the rule, and that the Ada having the Sappho on her cwn sturboard hand, was bound to keep out of the way, and that the speed of the Sappho was not improper, and pronounced the Ada alone to blame. The facts and judgment are set out in the report of the case below: (ante vol. 1, p. 485; 27 L. T. Rep. N. S. 718.) From this decree the owners of the Ada appealed on the ground that the Ada having the right to approach the pilot cutter to take a pilot, also had a right to expect that the Sappho would be navigated as to avoid risk of collision under the special circumstances of the case.

Milward, Q.C. and W. G. F. Phillimore, for the appellants. The master of the Sappho, seeing a

board a pilot, was bound to allow that ship to approach for that purpose, and to take steps to avoid her whilst getting a pilot. If the Ada was stopped and lying to for a pilot, the vessels were not crossing vessels within the meaning of Art. 14 of the Regulations for preventing Collisions at Sea. At any rate such a state of things was a special circumstance within Art. 19, which ought