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Colonial Cases

The Macey v. the Icey, 1896



The Macey v. the Icey

Supreme Court for China and Japan
Hannen CJ and Jamieson AJ, 7 May 1896
Source: North China Herald, 8 May,1896





[See also North China Herald, 1 May,1896.]

Shanghai, 7th May

Before Sir N. J. Hannen, Chief Justice, Geo. Jamieson, Assistant Judge, and Captain Street, Master of the P. & O. str. Ravenna, Assessors.








   The Chief Justice delivered judgment in this case as follows:

   This is a cross appeal from the decision of H.M. Court, Yokohama, dated the 13th day of January,1896, in which both ships were found to blame in respect of a collision which occurred between them on the morning of the 18th of October last in Uraga channel, the entrance to Tokio Bay. The facts of the case which are not at all in dispute are freely set out in the judgment of the Court below and need not be recapitulated here further than is necessary for this judgment.

   Briefly the position is that the W. H. Macey, which is a large sailing ship, saw the Isis, (a steamer) approaching on her starboard bow and conceiving it was the duty of the steamer to keep clear she held her course. The Isis came on and in attempting to cross the bows of the sailing ship the collision occurred, the bow of the sailing ship striking the port side of the steamer. The excuse for the Isis is that she did not see the green light of the sailing vessel until she was within 300 or 600 yards and then she ported her helm and went full speed ahead, as the best thing to be done under the circumstances.

  In the Court below substantially only two questions had to be dealt with, the sufficiency of the green light of the Macey and the action of the Isis when the Macey's light was first seen.

   The learned Judge came to the conclusion that the action of the Isis was wrong in porting her helm and going full speed ahead and that she should have stopped and reversed in compliance with rule 18. With regard to the Macey's light it appears that the Assessor who sat at the hearing advised the Court that the light was properly placed on the ship and could not have been obscured by anything in the rigging. They further pronounced the light itself a first-class light and such as could be seen three miles off. So satisfied were they on this point that they considered it quite unnecessary to try its range by night, and the evidence as laid before the Court below no doubt pointed to the same conclusion.

   "Circumstances, however," the learned Judge continued, "determined me after I had reserved judgment to commit it to the test (that is to say, to try its range by night) and the Assessors having left the port I called in the assistance of another steamer captain as expert. He tested the light on the evening of the 7th instant, and his report upon it is as follows."  He then sets out the report, the substance of which was that at two miles the light was not visible at all and at a mile and a half it only began to be very faintly visible, though more clearly with glasses.

   Upon this report the learned Judge came to the conclusion that the Macey's light was not up to the standard required by the regulations and upon this ground held the Macey to blame.

   The principal argument on the appeal before us was on this action of the Court below in ordering a test of the light and receiving the report after the evidence had been considered and the Court had reserved judgment. It is not, however, necessary in our opinion to give any definite opinion on that point, as the counsel for the Isis at an early stage of the case applied to us to direct that the light should be now tested by the Assessors who are sitting with us in this case.  On a review of the whole circumstances of the case, we came to the conclusion that in order to the furtherance of justice the most satisfactory course would be to accede to that application, for which we conceived we had ample discretionary power under Rules 158 and 172 of the Court. Accordingly we made an interim order directing that the lamp, which had been transmitted as part of the record, should be tesetd by the Assessors, the appellants being at liberty in view of the lapse of time since the collision to have it first trimmed. 

   The report of the Assessors was to the following effect-

   "We have made careful experiments with the light and we are of opinion that it cannot be seen at a greater distance than one mile."

   The report having been communicated to the parties, it was next contended by the counsel for the Macey that notwithstanding the defect she ought not to be held to blame, because being an American ship the provisions of the Art. 419 of the Merchant Shipping Act, 1894, as to statutory liability did not apply. The Order in Council of 1879 only made the Regulations applicable to foreign ships but not the other provisions which ensue on a breach of the Regulations.  He further contended that the defect did not in fact contribute to the collision because at 500 or 600 yards' distance when the light was seen there was ample time for the steamer to have kept out of the way and even with no light at all she ought to have been seen in time.

   The first point appeared to be entirely covered by the cases which were cited in the judgment of the Court below and which were quoted again before us in the argument for the Isis, particularly the Magnet (4 A. and E., p. 317), and the Duke of Buccleugh (15 P.D. p. 91).  In both of them a foreign vessel, as the Macey is, was held to blame for an insufficiency of lights, which by possibility may have contributed to the collision, and we think the same rule must be applied here. 

   But further we are advised by the Assessors, and we agree in their opinion, that the defect in the Macey's light did contribute to the collision. On both grounds, therefore, we hold the Macey was to blame.

   We therefore affirm the judgment of the Court below and direct that each party bear his own costs and pay one half of the Assessors' fees and of the costs here of testing the light.

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