Ct. o p Ap p.J Th e He r o. [ Ct. o p Ap f.
contributed to it. B u t i f I am ju s tifie d in my fin d in g o f fact, the question last referred to may be p u t aside.
The case, then, in m y opinion, stands th u s : There is no “ sta tu to ry blam e” on either side
■—no t on the p a rt of the Blackwater because she, as a K in g ’s ship, is n o t governed by the sta tu to ry regulations made under sect. 418 of the M erchant Shipping A c t of 1894 ; and n o t on the p a rt of the Hero because she is not proved to have been g u ilty o f a breach o f art. 28, or o f any other sta tu to ry collision regulation. B u t I find th a t there was negligence on the p a rt o f both vessels. T his being so, the common law doctrine of co n trib u to ry negligence m ust be applied, as in The M argaret (5 Asp. Mar. Law Cas. 371 (1884); 9 A pp. Cas. 873) and H .M .S . Sans Pareil'(sup.). T h a t doctrine is th a t i f A . is in ju re d by B. by the fa u lt more or less of both combined, then if, notw ithstanding B .’s n egli
gence, A . w ith reasonable care could have avoided the in ju ry , he cannot succeed in an action against B , and if, notw ithstanding A .’s negligence, B.
w ith reasonable care could have avoided in ju rin g A., A . can succeed against B. (see per L in d le y, L. J.
in The Bernina, 12 P . D iv., a t p. 89; 6 Asp. Mar.
L a w Cas. 75 (1887), and the cases there cited). In the leading case of T u ff v. Warman, which was a case o f collision in the Thames, i t was said in the Exchequer Chamber (see 5 C. B . N . S , at p. 585), th a t the proper question in such cases is “ whether the damage was occasioned e n tire ly by the negligence or im proper conduct o f the defendant, or whether the p la in tiff so fa r contributed to the m isfortune by his own negligence or w ant of ordinary and common care and caution th a t but fo r such negligence or want o f ordinary care and caution on his p a rt the m isfortune would not have happened.” In other cases i t has been said th a t the question is, Whose negligence was the “ proximate cause” of the in ju ry ? The S olicitor-G eneral contended in th is court th a t the common law doctrine of co n trib u to ry neg
ligence should not be applied in the same way in the A d m ira lty Courts as in the common law courts ; that, i f i t was, the ordinary rule of “ both to blame and division of damages ” which prevails in A d m ira lty could seldom have effect. H e did n o t suggest what difference there could be in the p rin cip le of the application. On the question of fact, in any case, i t is obvious that, in a rriv in g at the “ proxim ate cause ” of an accident at sea, the d iffic u lty of the task o f manoeuvring ships of various kinds and dimensions in uncertain states of weather and tide, and in the unforeseen and unforseeable dangers which are m et w ith upon the waters, m ust always be regarded; and i t m ust often happen, where two vessels are a t fa u lt, th a t i t is impossible to say th a t one of them w ith o u t the aid of the other could avoid an acci
dent, or th a t the fa u lt or negligence o f one alone is the proxim ate cause; so th a t i t has to be decided th a t the combined negligence of both was the common cause, and th a t the “ both to blame and division of damages ” principle is to apply.
Moreover, th a t principle must always apply where there is a breach of a sta tu to ry regulation, w hich so often occurs in cases o f collision a t sea.
The “ division o f damages” rule, although not quite logical, because the damages are n o t pro portioned either to the degree of blame or to the extent o f the in ju rie s caused, has been regarded
fo r a long tim e in th is country as a salutary rule in A d m ira lty cases. W hether the doctrine of co n trib u to ry negligence derived from the common law which has been im ported in to A d m ira lty actions is equally salutary or reasonable is n o t fo r me to determine. I have to act upon the settled law th a t the doctrine does apply in cases where the facts call fo r or p e rm it its application. The Solicitor-General in his reply called my attention to an unreported case of the steamship Cambridge, and he k in d ly supplied me w ith a tra n s c rip t of the notes o f the evidence and o f the judgm ents o f S ir Francis Jeune (then President of this D ivision) and o f the Lords Justices in the C ourt of Appeal. The case was decided in th is court on the 17th June 1902, and in the C ourt of Appeal on the 1st J u ly 1903—i.e., about three years after H .M .S . Sans P a re il (ubi sup.). The President decided th a t the steamship Cambridge, a passenger steamship, and H .M S. Salmon, a torpedo destroyer, were both to blame and both liable ; the steamship Cambridge because she was g u ilty of bad navigation in shaping to cross the bows o f the torpedo destroyer, and H.M.S. Salmon because i f she had done what she could and ought to have done the collision would have been avoided. A fte r the judgm ent had been delivered, M r. P ic k fo rd (counsel fo r the steamship Cambridge) called the attention of the President to the case of H .M .S. Sans P areil, and asked him to apply the principle o f th a t case, and to say th a t H .M .S. Salmon was alone to blame.
A pparently, thereupon the President said th a t he found th a t i t would have required extraordinary care and s k ill—i.e., something quite beyond ordinary care and s k ill on the p a rt o f H.M.S.
Salmon—to avoid the collision, and accordingly he adhered to his decision th a t both were to blame, and he divided the damages. B o th sides appealed.
The Cambridge appealed on the ground th a t the Salmon was solely to blame because she could by the exercise o f o rd in a ry care and s k ill have avoided the collision. The Salmon appealed on the ground th a t the Cambridge was solely to blame, apparently, (1) because in the circum stances the Salmon could not by the exercise of ordinary care and s k ill have avoided the collision ; (2) because the President had misdirected him self by acting on the principle th a t extraordinary care could be re q u ire d ; and (3) because the Salmon was exonerated from lia b ility by reason of a sudden p e ril of an extreme emergency. B o th appeals failed. I n the C ourt of Appeal, so fa r as I can see fro m the judgments, the H .M .S.
Sans P a re il was n o t cited, o r dealt w ith at all, in any of the three judgm ents, and the doctrine of co n trib u to ry negligence as applied to collisions a t sea in the cases of The M argaret (ubi sup.) and H .M .S. Sans P a re il (ubi sup.) was not considered or even mentioned, except possibly in one passage in the ju dgm ent of the Master of the R olls. I have read the case carefully. Unless i t is to be regarded as a case where both vessels were equally to blame and brought about the collision by th e ir common negligence, or where i t required some extraordinary s k ill and care on the p a rt of either vessel to avoid the accident, I find i t im possible to reconcile the decision o f the C ourt of Appeal w ith the decision in H .M .S. Sans P areil.
In the case now before the court, I find th a t the negligence a ttrib u ta b le to the Hero d id .n o t cause any sudden emergency or extreme p e ril which
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17
Ct. o fApp.] The He r o. [Ot. o f Ap p.
required any extraordinary s k ill or care to be exercised by the B lackw ater; th a t the Blackwater was n o t hampered by the Hero o r by the other vessels of the fleet so as to be unable to manoeuvre properly or safely ; and th a t, notw ithstanding the negligence of the Hero, the collision could have been avoided by the ordinary skill, caution, and care to be reasonably expected fro m the na vig at
in g officers of H .M .S. Blackwater. In these findings the E ld e r B rethren agree w ith me. I accordingly decide against the p la in tiffs ’ claim.
As to the counter-claim, i t follows, from what I have before stated in discussing the facts, th a t Commander W arren and Iris h were g u ilty of negligence which contributed to the c o llis io n ; and th a t the Hero could n o t about the tim e of the collision have avoided i t by the exercise o f ordinary care and s k ill by reason o f the fa u lty manucevres of the Blackwater. As to th is also the E ld e r Brethren agree. A ccordingly, I decide the counter-claim, too. in favour of the defendants, and order a refer
ence as to damages, i f desired. The order o f the court, therefore, is th a t the ju d g m e n t be entered fo r the defendants upon the claim and counter
claim.
On the 26th J u ly 1910 the p la in tiffs delivered a notice o f appeal praying th a t the judgm ent should be reversed or varied by pronouncing th a t the fa u lt or d efault of the owners, master, and crew o f the Hero occasioned the collision, and th a t the defendants’ counter-claim m ig h t be dismissed and the p la in tiffs ’ claim pronounced for.
The appeal was heard by the court, which had the assistance of two nautical assessors, on the 2nd, 3rd, 6th, and 7th March, when ju d g m e n t was reserved.
The Attorney-General (Sir R ufus Isaacs, K .C .), Aspinall, K.U., and A. D. Bateson, K .C . fo r the appellants, p la in tiffs .— The court below has found th a t both vessels were negligent, b u t has held that the Hero is n o t liable because those on the Blackwater could by the exercise of ordinary care and s k ill have avoided the result of the negligence o f the Hero. The Hero is alone to blame, fo r she brought about a position of extreme danger, and she cannot complain i f those on the Blackwater did n o t do the best th in g in the sudden emergency created by the Hero's wrongdoing. In these circumstances those on the Hero cannot say th a t those on the Blackwater were n e g lig e n t:
The B y w e ll C astle, 41 L . T . R ap. 747 ; 4 A sp. M a r.
L a w Cas. 207 (1879) ; 4 P. D iv . 219 ;
The F r a n k fo rt, 101 L . T . Rep. 6 6 4 ; 11 A sp. M a r.
L a w Cas. 3 2 6 ; (1910) P . 5 0 ;
T h e C a m b rid g e (re fe rre d to in th e ju d g m e n t o f th e o o u rt below ).
The Hero is to blame fo r a breach o f a rt. 28 o f the Collision Regulations. On the evidence i t is clear th a t she gave no helm signal when she ported shortly before the collision.
L a in g, K .C . and A d a ir Roche fo r the respon
dents, defendants and counter-claimants. — The ju d g m e n t appealed fro m is based on the appellants’ (plaintiffs) evidence. On th a t evidence they have been found alone to blame. [ K e n n e d y,
L .J .— Is th a t quite so. R allo, a witness fo r the defence, gives evidence as to the Hero’s whistle signal.] I f the Hero broke a sta tu to ry rule/'jshb m ust be deemed to be in fa u lt, fo r i t would be impossible to show th a t the breach could 'not by any p ossibility have contributed to the cdllision.
V m . X T T M S \ &
The question as to the whistle being sounded is one of fact, and th is court w ill be slow to interfere w ith such a finding. B u t assume the whistle was n o t sounded, there was no breach of art. 28. T h a t a rticle only applies to a steam vessel under way ta k in g any course “ authorised or required by these rules.” The p o rtin g o f the Hero was not such a course. As to what is a course authorised or required by these rules, see
The Uskmoor, 87 L . T . R ep. 5 5 ; 9 Asp. M a r. L a w Cas 316 ; (1902) P. 2 5 0 ;
The Bellanoch, 97 L . T . j L p . 3 1 5 ; 10 A sp. M a r.
L a w Cas. 483 ; (1907) A . C. 269 ;
The Anselm, 97 L . T . R ep. 1 6 ; 10 Asp. M a r. L a w Cas. 438 ; (1907) P. 1 5 1 ;
The C o rin th ia n , 101 L . T . Rep. 265 ; 11 Asp. M a r.
L a w Cas. 20 ; (1909) 1*. 260 ;
The Mourne (83 L. T. Rep. 748; 9 Asp. Mar. Law Cas. 155; (1901) P. 68) shows th a t mere po rtin g and starboarding is n o t “ ta kin g a course ” w ith in the meaning o f the rules. The Hero cannot be deemed to be in fa u lt unless the rules apply, and they only apply when there is ris k o f collision, and, on the p la in tiffs ’ story, there was no risk of collision except th a t caused by the Blackwater. The Bywell Castle (uhi sup.) has no application, fo r the President has found as a fa c t th a t there waB no sudden emergency or pe ril. The Cambridge, which is dealt w ith a t length in the judgm ent of the court below, conflicts w ith The Sans P a re il (82 L . T. Rep, 606; 9 Asp. M ar. Law Oas. 78;
(1900) P. 267). The Hero's wrong manoeuvre was long before the collision, and the vessels would have gone clear i f the commander had not countermanded the orders given by the gunner.
T h a t is the negligence which produced the col
lision.
The Attorney-General in reply.—The Hero’s case is a w rongful starboarding by the B lack
water ; the Blackwater’s case is a w rongful p o rtin g l y the Hero. Each says the other made the in itia l mistake. There is no doubt th a t a position of danger and emergency was created which placed those on the Blackwater in a d iffi
cu lty. The principles which govern the law as to c o n trib u to ry negligence are stated by Lindley, L .J. in The Bernina (56 L . T. Rep. 258; 6 Asp. M ar. Law Cas. 75; 12 P. D iv. 58). The M argaret (ubi sup.) is the leading decision on the point ; another is The Monte Rosa (68 L . T. Rep.
299; 7 Asp. Mar. Law Cas. 326; (1893) P .2 3 ).
The Hero is to blame, fo r her negligence con
tinued up to the collision :
The C lu th a B o a t No. 147, 100 L . T . Rep. 1 9 8 ; 11 A sp. M a r. L a w Cas. 199 ; (1909) P. 36 ;
The F ra n k fo rt (u b i s u p .);
The E tn a , 98 L . T . R ep. 424 ; 11 A sp. M a r. L a w Cas. 3 0 ; (1908) P . 269 ;
The O ving dean Orange, 87 L . T . R ep. 15 ; 9 A sp.
M a r. L a w Cas. 295 ; (1902) P. 208.
A p ril 11.— The judgm ent of the co u rt was delivered by
Ke n n e d y, L .J .— W e see no reason to dissent from the judgm ent o f the learned President so fa r as i t imputes actionable negligence to the navigation of H.M.S. Blackwater. I n regard to the Hero, he has found th a t those in charge of the Hero were also g u ilty of negligent and im proper navigation in g e ttin g her in to a wrong position in regard to the flo tilla . B u t he has afecff found in effect th a t, although, i f the Hero
D
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18
Ct. o f Ap p.] Th e
bad kept her course a fte r passing the starboard line of the second division, as she ought to have done, and had n o t ported, as she did, she would have passed the Blackwater safely, green to green, yet, a fte r th is in itia l wrongdoing on the p a rt o f the Hero, the collision m ig h t have been avoided by the exercise of n o t more than ordinary care and s k ill on the p a rt o f those in charge of the Blackwater when they saw the wrong manœuvre o f the Hero ; and, so finding, he has held the B lackw ater solely to blame fo r the collision. I t is, as B u c k n ill, J. remarked in his ju d g m e n t in The E tn a (ubi svp.), frequently a m a tte r of extreme d ifficu lty to decide whether or n o t the negligence o f the in itia l wrong
doer could have been avoided by the other party. I n The M argaret (reported as Cayzer v. Carron Company (ubi sup.) and The Sans P a re il (ubi sup.) the question was decided one way, and in The E tn a (u b i sup.) and The Cambridge, heard in the A d m ira lty C o u rt on the 17th June 1902 and in the C ourt of Appeal on the 1st J u ly 1903, i t was decided the other way. I t is not, in our view, an easy question to decide in the present case. I t is, however, necessarily a question o f fa c t depend
in g upon the special circumstances o f each case ; and our nautical assessors concur w ith the advisers of the President in the A d m ira lty Court th a t there was no such emergency created by the negligence and bad navigation o f the Hero as m ig h t n o t have been successfully met by the exercise o f ordinary care and s k ill on the p a rt of those in charge of the Blackwater. In fact, Gunner Iris h did take the rig h t step by p o rtin g the helm of the Blackwater, and there would have been no collision b u t fo r the la te r orders of Com
mander W arren, which, unfortunately, destroyed the effect of th is manœuvre. The appeal of the p la in tiffs, therefore, fa ils so fa r as i t depends upon allegations of the lia b ility o f the Hero fo r fa u lty or negligent navigation causing the collision.
There remains, however, fo r our consideration a very im p o rta n t question as to the lia b ility of the Hero to the sta tu to ry im p u ta tio n of blame, under the M erchant Shipping A c t 1894, s. 419, fo r a breach of art. 28 of the Regulations fo r P reventing Collisions at Sea. The learned President has expressly held, and, we th in k , rig h tly held, th a t an in frin g e m e n t or non-observ
ance of a rt. 28 does involve sta tu to ry blame; and, although there is no express fin d in g on the point, i t is, we th in k , a necessary inference from the language of his judgm ent, which deals at length w ith the question of fa c t as to the sounding of a one-blast signal on board the Hero, that, i f there were an omission on the p a rt of those on board the Hero, when her helm was ported, to sound the one-blast signal, those in charge o f her would have been held by him to have been g u ilty of a breach of art. 28, and, therefore, the Hero must in th a t case be held p a rtly to blame fo r the collision under the M erchant Shipping A c t 1894, s. 419. He states in his ju d g m e n t that, i f at the tim e o f the porting, which u ltim a te ly led to the collision, those on board the Hero om itted to sound, w ith the whistle, the appropriate one-blast signal, he could n o t say th a t th is omission could n o t possibly have contributed to the collision.
B u t the learned President, finding, as a fact, th a t th is signal was given on board the Hero,
He r o. [ Ct. o f Ap p.
has, o f course, acquitted her o f ' sta tu to ry blame.
The appellants contend th a t the evidence did n o t ju s tify this fin d in g of fact, and we have to con
sider and decide first, whether the fin d in g o f fa ct was rig h t, and, secondly, i f we are o f opinion th a t the fin d in g of fa c t was erroneous and th a t the one-blast signal was not sounded on board the Hero a t the tim e in question, whether such an omission constituted a breach o f art. 28 ; fo r the respondents, besides arguing in support o f the President’s finding of fa ct in th e ir favour in regard to the sounding o f the one-blast signal, fu rth e r contend that, even i f th a t signal was not sounded, the Hero did n o t violate the provisions of art. 28 by such an omission.
F irs t, as to the question of fact. This court is very slow indeed to d iffe r fro m the judge of the A d m ira lty C ourt on any decision of fact, depending sim ply upon the choice between affirm ation on the one side and denial on the other and the c re d ib ility of witnesses who have been examined in open court at the tria l. B ut, i f i t is convinced th a t the judge has been guided to his decision by some misapprehension of the effect of evidence, or of the inference to be drawn fro m it, or of m aterial circumstances, it is, we conceive, the d u ty of the C ourt o f Appeal to act upon its own view. In the present case, the fin d in g o f the learned President th a t a one- blast signal was sounded w ith her w histle on board the Hero a t the tim e when her w rongful p o rtin g originated the collision w ith the B lack
F irs t, as to the question of fact. This court is very slow indeed to d iffe r fro m the judge of the A d m ira lty C ourt on any decision of fact, depending sim ply upon the choice between affirm ation on the one side and denial on the other and the c re d ib ility of witnesses who have been examined in open court at the tria l. B ut, i f i t is convinced th a t the judge has been guided to his decision by some misapprehension of the effect of evidence, or of the inference to be drawn fro m it, or of m aterial circumstances, it is, we conceive, the d u ty of the C ourt o f Appeal to act upon its own view. In the present case, the fin d in g o f the learned President th a t a one- blast signal was sounded w ith her w histle on board the Hero a t the tim e when her w rongful p o rtin g originated the collision w ith the B lack