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Colonial Cases

Taku Tug and Lighter Co. v. Butterfield and Swire, 1891

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Taku Tug and Lighter Co. v. Butterfield and Swire

Supreme Court for China and Japan
Rennie CJ, 6 January 1891
Source: North China Herald, 9 January, 1891

LAW REPORTS.
H.B.M.'S SUPREME COURT.
Shanghai, 6th January, 1891.
Before Sir R. T. Rennie, Chief Justice.
TAKU TUG & LIGHTER CO. v. BUTTERFIELD & SWIRE.
  This was an appeal from a decision of H.B.M.'s Consular Court at Tientsin, in an action brought by the Taku Tug and Lighter Company to recover from Messrs. Butterfield & Swire Tls. 20,000 as damages for the sinking of the plaintiffs' lighters Paokong and Daisy by defendants' steamer Tungchow. The Paokong was sunk on 31st March, 1890, and the Daisy on the following day; and the Consul at Tientsin held both vessels to blame for the first collision and the Tungchow alone for the second. Against this decision the plaintiffs now appealed, and sought for a decree pronouncing the Tungchow solely and entirely to blame.
  Mr. H. S. Wilkinson appeared for the plaintiffs and Mr. R. E. Wainewright for the defendants.
  The story of the plaintiffs, as set forth in the original petition, was as follows:
  Between two and three o'clock p.m. on the 31st March, 1890, while the tug Kaitai having in tow the Paokong and three other lighters, the Solidor, Mary, and Lee Hong, was proceeding up the river Peiho, and approaching the Tientsin Bend, those on board the Kaitai observed the Tungchow, coming down the river above the Bend. It was then about high water at that part of the river.  There was no flood tide running so far up, and the current was downward, but slack. In that part of the channel which lay on the starboard side of the Kaitai, the German steamship Herer lay aground about 600 yards above the Bend. Under the circumstances the Kaitai rounded the Bend with the four lighters and proceeded upon her port side of the channel, as close as she could safely go to the bank of the river to allow the Tungchow to proceed in the deepest part of the river, and to negotiate the Bend. When the Kaitai had proceeded up the Tientsin Reach about 500 yards above the Bend, the lighters having straightened out and the Kaitai being nearly abreast of the Tungchow the latter, which until then had kept on her way in the centre of the river, stopped short, having taken the ground. Her starboard engine was kept going ahead while the port engine was reversed, and the stern of the Tungchow swung round and struck the Paokong a little aft of midships, making a hole in the side of the Paokong, and the propeller making another hole in the bottom.
  The Paokong was immediately pushed up on the bank as far as possible, but she rapidly sank, and the bulk of her cargo was destroyed or damages.  Before the Tungchow swung round the master of the Tungchow called to the master of the Kaitai to look out for the steamer's stern swinging round; but the master of the Kaitai replied, as the fact was, that it was then too late for him to do anything effectually. He kept as far over to the bank as he could, but it was impossible for him or for those on the Paokong to prevent the collision. Plaintiff contended that the Tungchow when she took the ground neglected to put her starboard engine astern and her port engine ahead, and improperly neglected to pass a line from the stern to the bank, or drop her stern anchor, which was hanging astern with a wire rope attached ready to let go, and so keep her stern from swinging round.
  About 6 o'clock a.m. on the following day, the 1st of April, while the lighter Daisy, of 278 tons burden, belonging to the plaintiffs, was lying alongside the Paokong engaged in the work of salvage, and having on board a portion of the cargo salved from the Paokong, the Tungchow, which had until then remained where she had struck on the previous day, endeavoured to get off, and putting her starboard engine ahead and her port engine astern, her stern swung round and struck the Daisy on her starboard quarter about  30 feet from her stern, and with her propeller struck under the counter, making a hole in the side, causing the Daisy to sink with all the salved cargo on board. The plaintiffs urged that the Tungchow improperly neglected to run a line from her stern to the bank to prevent her stern swinging round upon the Daisy.
  The defendants in their answer stated that the Kaitai was in the middle of the river, and about 100 yards from the Tungchow, when those on board the Kaitai were warned by the master of the Tungchow to look out, as the bow of the latter vessel was on shore and her stern swinging round. When the bow of the Tungchow stuck fast on the left bank of the river, the engines were immediately put full speed astern with a view to drawing her off, but without success; and when shortly afterwards her stern began to swing out across the river the port engine was put full speed ahead and was kept going that way until the collision. About a minute before the collision the starboard engine, which had until that time being going astern, was stopped. One side of the starboard propeller of the Tungchow went through the side of the Paokong, and the next blade made a hole in the Paokong's bottom, and the Paokong sank.
  The defendants denied that when hailed from the Tungchow it was too late for those on board the Kaitai to do anything to avoid the collision. The interval that elapsed between the time of the Tungchow running aground and the time of the collision was too short to admit of a line being carried ashore before the collision.  The stern anchor referred to by plaintiffs had no rope or line attached to it, and even if it had been let go, it would have been of no use; and, moreover, had it been let go there would have been great risk of the rope fouling the Tungchow's propellers, or one of them.
  With reference to the second collision, the defendants said that at about 6 a.m. on the 1st of April, the Tungchow being aground near the left bank of the river about 500 yards above the Tientsin Bend, and the current running down at the rate of from 2 to 3 knots an hour, and it being then high water, and the master of the Tungchow having engaged the services of the plaintiffs' tug Kaitai, the Kaitai made fast to the bow of the Tungchow and tried to tow her off, the Tungchow's engines being made use of at the same time. The Kaitai, however, owing to her not being in a proper position, failed to get the Tungchow's bow off and in a short time the Tungchow's stern began to swing across the river. Those on board the Tungchow then let go the tug and put the Tungchow's engines full speed astern, but without any result. The port engine of the Tungchow was then put full speed ahead, her starboard engine still being reversed, but the strength of the current swung the Tungchow's stern across the river until she struck the Daisy on the latter's starboard side aft, and one of the blades of the Tungchow's starboard propeller cut through the after hold of the Daisy, causing her to sink aft.  The iron bulkhead in the middle of the Daisy prevented her from sinking altogether, and the cargo in her forward hold was at once removed. There was very little cargo in her rafter hold.  There was nothing on the shore or elsewhere in the neighbourhood of the Tungchow to which to make a line fast. The defendants contended that the collision with the Paokong was attributable solely  to the negligence and improper conduct of those on board the Kaitai, inasmuch as they (1) were wrong in coming up the river at full speed instead of as slowly as they could consistently with steerage way, knowing, as they must have known, the bad state of the river, and seeing, as they must have seen a considerable distance off, that a steamer was coming down; and (2) were wrong in not, when warned  that the Tungchow's stern  was swinging across, casting off the lighters and ordering them to steer for the shore, and if necessary to let go their anchors and themselves backing out of the way.
  The defendants further alleged that the collision with the Daisy would not have occurred had it not been for the collision with the Paokong, which last mentioned collision was the fault of the plaintiffs; and further that the collision with the Daisy was caused by the negligence and want of skill of the plaintiffs' servants on board the Kaitai in connection with their attempt to tow the Tungchow off the shore; and further that the last mentioned collision would not have occurred but for the negligence of the plaintiffs' servants in not removing the Daisy out of the way before commencing operations to get the Tungchow off the shore.
  Mr. Wilkinson, in addressing the Court in support of the appeal, contended that there was no evidence to show that, after the Tungchow was aground, she began to swing until the port engine was reversed, which had the effect of making her swing with the tide. The captain of the Tungchow ought to have done nothing until the tug with lighters in tow had gone past.  Counsel proceeded to argue that the Tungchow was at fault in not hoisting a signal to show that she was not under control. The captain of the Tungchow called out to the Kaiitai, when the latter was 100 yards off, but if the signal had been hoisted the captain of the Kaitai would have had more time to get out of the way.
  Proceeding to deal with the question whether the Kaitai was justified in attempting to get past the Tungchow with her lighters, counsel pointed out that the Kaitai had been placed in a position of great difficulty - so great, in fact, that the judge of the court below was unable to suggest how she could have got out of it. He did suggest that the Kaitai should have cast off some of her lighters, but he was unable to say how many. If the Kaitai had stopped, she would herself have come into collision with the Tungchow, seeing that the lighter sunk was the next one to the Kaitai, and therefore the Kaitai did the right thing in going ahead. The captain of the Tungchow ought to have appreciated the fact that by moving his engines astern his ship might swing round.  All the evidence showed that if the engines had not been put astern there would have been no danger of the stern swinging round.
  At the conclusion of Mr. Wilkinson's address, the Court adjourned till next morning.
7th January.
  The hearing of this case was resumed, Mr. H. S. Wilkinson appearing for the appellants, and Mr. R. E. Wainewright for the respondents.
  Mr. Wilkinson, who had closed his case on the previous day, proceeded by permission to quote cases in support of his contention that it was obligatory in the Tungchow to take great precautions in view of the Kaitai having other vessels in tow and being therefore encumbered.
  Mr. Wainewright, for the respondents, pointed out, in reference to the cases cited by the learned counsel for the appellants, that there was no evidence to show that, when the Kaitai was sighted from the Tungchow, those on the steamer were aware that the tug was towing. Counsel proceeded to urge the untenability of the position apparently taken up by the judge of the court below - that the Tungchow, directly she saw a vessel coming up, was bound to stop and make fast - particularly as the Tungchow, coming down the river, had the right of way in accordance with the custom on the Peiho, and the Kaitai, being smaller and coming up stream, was more manageable.
  As to alleged negligence of the Tungchow in not hoisting a signal when she was aground, the rule, he argued, would only apply to a vessel which was expected to remain aground for some time, and not to a vessel like the Tungchow, which was expected to get off every minute. With regard to the Tungchow not having anchored, it was shown by the evidence that there was no tree or anything on the bank to which a line could be fastened; and it would have occupied too much time to take an anchor ashore in a boat. It was also shown that after the vessel had begun to swing, a stern anchor would not have had any effect in keeping her from swinging further.
  Mr. Wainewright was proceeding to deal with the evidence in connection with the handling of the engines, when
  His Lordship said it might be argued that the captain of the Tungchow was rather rash in putting his engines astern when the Kaitai was nearly abreast of him.
  Mr. Wainewright said there was nothing to lead the captain of the Tungchow to suppose that the effect of putting his engines astern would be different from what it had been before the same voyage. The captain said in his evidence, "Going down the reach we grounded frequently and got off by backing."
  His Lordship - But we expect him as a master of skill and experience to k now what the effect of backing would be in this position.
  The Court adjourned till half-past ten o'clock next morning.
8th Jan., 1891.
  At the opening of the Court his Lordship drew Mr. Wilkinson's attention to this point - whether in an action at common law the Admiralty rules, which would apply in the case of a sunken vessel, would apply equally to her cargo. In the case of the Bernina, argued in the Court of Appeal in 1887, the Master of the Rolls in giving judgment apparently went out of his way to say: "Wee desire to say that we do not express any opinion as to whether an action brought at common law as to damage to cargo will be governed by the Admiralty practice." As the greater part of the claim in the present action was in respect of cargo, it would be necessary to decide this point before his Lordship gave judgment.
  Mr. Wilkinson said he would be glad to have time to look up the point and subsequently address the Court upon it.
  Mr. Wainewright then proceeded to address the Court in regard to the second collision - i.e., between the Tungchow and the Daisy - and in support of his contention that the Tungchow was free from blame, the Kaitai having, he contended, disobeyed the orders of the captain of the Tungchow when attempting to pull the steamer off the mud. The learned counsel admitted that the evidence was very meagre, and
  Mr. Wilkinson thought it was unnecessary for him to reply in the Daisy case.
  His Lordship concurred.
  Mr. Wainewright said he had abandoned the cross-suit to recover for damage done to the Tungchow's propeller.
  His Lordship felt he might say at once that he considered the captain of the Tungchow acted very imprudently in going astern across the current with the Kaitai close to him, especially having regard to the fact that he anticipated danger of his vessel swinging even if he did not go astern.
  On resuming after the usual interval,
  Mr. Wilkinson cited a case which he considered showed that the Admiralty rules should apply both to cargo and vessel.
  His Lordship observed that the judgment was delivered by the same judges who previously dealt with the Bernina case; and it was hardly likely that they should have forgotten their former utterances.
  At the conclusion of the arguments, His Lordship reserved judgment.
.  .  .  

Source: North China Herald, 16 January, 1891

LAW REPORTS.
H.B.M.'S SUPREME COURT.
Shanghai, 10th Jan., 1891.
Before Sir R. T. Rennie, Chief Justice.
TAKU TUG & LIGHTER CO. v. BUTTERFIELD & SWIRE.
   Judgment was given in this case [not transcribed.]
  In this case, which is an appeal from the judgment of H.B.M.'s Provincial Court at Tientsin, given on the 11th of September last, the appellants contend that the collision with the respondents' lighter Daisy was caused by the default of the master of the tug Kaitai, belonging to the respondents, in disobeying the orders of the master of the appellants' steamer Tungchow. I do not think it necessary to enter into the details of the case, because the appellants have entirely failed to make out any case. They admit that the Kaitai was for the time being in their employ and acting under them. The only evidence there is in support of this charge of disobedience against the master is that of their own captain, of the Tungchow, and it is sufficient for me to say that that evidence is quite insufficient to support the appeal. The appeal will be dismissed, and the decision of the Court below affirmed, with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School