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Colonial Cases

Steamship Diana v. Steamship Clieveden, 1894

[shipping, collision]

Steamship Diana v. Steamship Clieveden

Judicial Committee of the Privy Council
27 June 1894
Source: The Times, 28 June 1894

 

LAW REPORT, June 27

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present - LORD WATSON, LORD MORRIS, and SIR RICHARD COUCH.)

THE STEAMSHIP DIANA v. THE STEAMSHIP CLIEVEDEN.

This was an appeal from a decree of the Supreme Consular Court of Constantinople of September 6, 1893.

Sir Walter Phillimore, Q.C., and Dr. Stubbs appeared for the appellant; Mr. Bucknill, Q.C., Mr. Frank Stafford, and Mr. H. Homan for the respondent.

The suit was instituted on the part of the Austrian Lloyd Steamship Company as owners of the Diana to recover damages in respect of a collision in the Danube between that vessel and the English steamer Clieveden on October 19, 1892, by which both vessels sustained damage.  The Supreme Consular Court at Constantinople found that the Diana was alone at fault.  The question raised in the appeal turned mainly on the regulations of navigation and police available to the Lower Danube in regard to vessels crossing or passing one another.

At the close of the argument,

LORD WATSON said their Lordships would take time to consider their judgment.

Source: The Times, 16 July 1894

THE STEAMSHIP DIANA v. THE STEAMSHIP CLIEVEDEN.

This was an important appeal, relating to the navigation of the Danube, from a decree of the Supreme Consular Court of Constantinople of September 6, 1893.

Sir Walter Phillimore, Q.C., and Dr. Stubbs were counsel for the appellant; Mr. Bucknill, Q.C., Mr. Frank Stafford, and Mr. H. Homan for the respondent.

The arguments were heard a short time back before a Committee consisting of Lord Watson, Lord Morris, and Sir Richard Couch, when judgment was deferred.

LORD WATSON, in now delivering the opinion of the board, said shortly after mid-day on October 19, 1892, and in clear weather, the Austrian Lloyd steamship Diana and the British steamship Clieveden, belonging to Newcastle, met and collided in the Danube, at or near the point where the Sulina arm diverges from the St. George's arm of the river.  The Sulina arm, which runs a separate course eastwards from that point until it reaches the Black Sea, branches off from the north side of the St. George's arm and commences with an artificial cut.

More than three-quarters of a mile in length and about 400 ft. in width, measuring from bank to bank.  Throughout the upper half of its length the water of the cut in question is much deeper to the south of mid-channel than to the north of that line, where it gradually shoals out until it reaches a mud bank, and the breadth of available waterway depends on the draught of the vessels navigating it.  The length of the Diana was 270ft., and her breadth of beam 35ft.; whilst the Clieveden was 250ft. long, and 37ft across her beam.  Each vessel was a little over 1,000 tons burthen, and was drawing 16 ½ ft. of water.  For ships of that draught, the  waterways of the upper half of the cut, during average low water, did not exceed from 180ft. to 200ft. in width, and was confined to the south of the mid-channel line.  At one pointy, about 250 ft. below its divergence from the St. George's arm, the available waterway of the cut is, for a very short distance, greatly reduced in width, by shoal water on the north.  For vessels with a draught of 16 ½ ft. it was not wider, during average low water, than 120ft. at that point.

The evidence showed that, on the day of the collision, the water of the Danube was exceptionally low; and, although there were not sufficient data for a precise calculation, it must, in the opinion of their Lordships, be assumed that the width of the navigable channel at the point in question was, at that time, appreciably less than 120ft.  It was also established by the evidence that, at the upper end of the cut and for some distance above it, there was a cross current from north to south, which made it impossible to keep the head of an ascending steamship steady without the aid of a port helm.

The Diana was on her way down the river, with a two-knot per hour current in her favour, and with the intention of descending the Sulina arm. The Clieveden was ascending that arm against the same current, on her way to a port above.  The two ships appeared ton have first sighted each other across the land, when they were about three miles apart; and, from that time until the collision occurred, they continued in sight, although, owing to a curve in the river, their hulls did not become mutually visible until the distance between them wass considerably less than a mile.  The proper course for two steamships approaching each other under such circumstances in any part of the channel where there was room for them to pass was to meet port to port, the descending vessel keeping on the south and the ascending vessel on the north of the channel.  The evidence from both chips made it apparent that, from the time when they first came in sight, it was the deliberate purpose of each to pursue her course without stopping until she met and passed the other. 

When the Diana and the Clieveden first came in sight of each other, a tug with four craft in tow was slowly ascending the Sulina arm, about a mile ahead of the Clieveden.  She moderated her speed to allow the tug and her tows to get clear of the cut before she overtook them.  The Diana also saw the position of the tug and slowed, so as to permit the tug ton pass her before she entered the cut.  The tug accordingly met and passed the Diana in the St. George's arm at a point somewhat less than half a mile above the entrance to the cut, and, at that moment, the evidence appeared to their lordships to show that the Clieveden must have reached a point somewhat more than one-third of a mile below the entrance to the cut.  From these two points the vessels went on their way, with the result that they came into collision at the entrance to the cut, immediately after the stern of the Clieveden had cleared the narrow passage already described - her stern striking the port side of the Diana nearly at right angles. At the instant of collision the Diana was heading to the south-east and somewhat across the stream, that position being apparently due to her having turned her engines astern.

Amid much uncertainty two things appeared to their Lordships to be tolerably certain.  The first of those was, that at the time the tug passed the Diana, it must have been clear to both vessels that, if they both continued to advance, they would meet in or near in the narrow passage; and the second, that, at the time the Clieveden struck her, the Diana was on the south side of the channel, and in the water which she was entitled to occupy if she was justified in pursuing her course.  The Clieveden maintained that the collision was wholly attributable to the fault of the Diana, upon those two grounds.  In the first place, she contended that it was the duty of the Diana to stop and wait above the entrance to the Sulina cut until the Clieveden had passed though it.  In the second place, she alleged that the Diana, when two or three ships lengths above the entrance to the cut, executed a wrong manoevre, by first starboarding her helm, and thereby opening her starboard bow to the Clieveden, so as to indicate that she meant to cross the bows of the Clieveden, and to pass down between that vessel and the north bank, and then suddenly changing her course, and sheering back to the south.  The Diana, on the other hand, maintained that the Clyde was solely to blame for the disaster.  She attributed the collision (1) to the failure of the Clieveden to stop and wait below the narrow creek of navigable water near to the top of the cut until the Diana had cleared it; and (2) to the Clieveden having, just before the collision, rendered it inevitable by changing her course from the north to the south side of the channel.

The case thus presented in argument involved two separate questions.  The first of those was, whether it was the duty of one of those ships to stop and wait until the other passed, and if so, upon which of them that duty was incumbent.  The second related to their mutual charges of faulty maneuvering at the time they had come within a few lengths of each other.  In considering the first question their Lordships had the main facts necessary to its determination ascertained beyond reasonable doubt.  In the second, the evidence from the two ships was conflicting, and, it it be reconcilable at all, could not be reconciled without giving the witnesses on either side credit for a considerable amount of exaggeration.  In discussing the first of these questions both parties relied, with equal confidence, upon Article 32 of the regulations applicable to the navigation of the Lower Danube which contained, inter alia, this provision:

"When a vessel ascending the river finds itself exposed to meeting a vessel descending, at a point which does not afford sufficient breadth, she must stop below the passage till the other vessel has cleared it; and if the ascending vessel should be actually in the passage as the other approaches it the descending vessel must stop above until the passage is clear."

It was a comparatively easy matter for a ship steaming against a two-knot current to come to a dead halt without stopping her engines and without losing her steerage way.  But a shop descending with the current could not, by stopping her engines, and without reversing, reduce her speed below the two knots an hour, and when her speed was reduced to that limit she d rifted and her helm practically lost all control over her movements. Those considerations afforded an obvious reason for requiring that in the circumstances to which the first part of the rule referred the ascending should give way to the descending vessel.

In their Lordships' opinion that part of the rule became imperative, whenever an ascending ship, approaching "a point which does not afford sufficient breadth," had notice that, if she proceeded, she would be exposed to the risk of meeting a descending ship at or near that point.  The second part of the rule was not, in their opinion, meant to come into operation, except in cases where the ascending ship had reached the point of danger and had actually begun to navigate the contracted passage before any such notice was conveyed to her. The Sulina arm might fairly be described, throughout its whole length, as a narrow channel, its waterway being more or less contracted at various points in its course. That a "narrow pass" was not, within the meaning of the regulations, the same thing with a passage which did not "afford sufficient breadth" was evidenced by the terms of Article 36, which provided for one steam vessel overtaking and passing another "in a narrow pass."

But their Lordships entertained no doubt, and their view was confirmed by the opinion of their Assessors, that the short neck of contracted waterway just below the entrance to the Sulina cut did not, on the day of the collision, afford sufficient breadth to permit two vessels of the size and draught of the Diana and the Clieveden to navigate it at the same time with safety.  They were not prepared to affirm that the channel below that point, though somewhat contracted, came within the scope of Article 32.  They were advised by their Assessors, in whose opinion they concurred, that the Clieveden would have been justified in proceeding up the north side of that channel if she had stopped short of the narrow neck, leaving sufficient room for the Diana to pass her on the south.  Their Lordships were of opinion that the Clieveden could not, except through negligence, have failed to observe that, by advancing as she did, she would probably, if not certainly, encounter the risk of meeting the Diana at or near that point of danger. It was, therefore, her plain duty to stop and wait before she reached that point.  No doubt her master stated that it would not have been "prudent" for the Clieveden to stop her engines, but the only reason he assigned for that view was "because we intended to go out of the other channel before the other ship came in."

That the Clieveden acting in gross violation of her duty in endeavouring to press though the narrow neck before the Diana could reach it, did not appear to their Lordships to admit of reasonable doubt.  That she was maintaining an undue rate of speed, for the purpose of attaining that object, was evidenced by the fact that, although she was going against the current, with her engines reversed, at the moment of contact, she, after collision, had still sufficient way on to push a side the stern of the Diana and proceed up stream.

The Clieveden being clearly to blame, it remained for determination whether the other colliding vessel could be acquitted of contributor fault, and upon that point their Lordships had been unable, upon a careful consideration of the evidence, to come to the conclusion that the Diana was free from responsibility. Their Lordships attached no importance to the allegation of the Clieveden witnesses to the effect that the Diana manoevred so as to indicate that she meant to cross the bows of the Clieveden and go down the north sisde of the cut.  In order to get into her proper position on the south side of the cut it was necessary for the Diana, whose course had been down  the middle line of the St. George's arm, to make some use of her starboard helm; and the probable, if not the inevitable, result of her doing so, owing to the  cross-current which prevailed at that part of the river, would be to make her head unsteady, and at times to expose her starboard instead of her port bow to the Clieveden.  That fact ought to have been known to those who were navigating the Clieveden.  It was difficult to suppose that they really believed the Diana was crossing to the north side of the channel; and, if they did entertain the belief, it was, in the circumstances, without justification.  It did not appear to be doubtful that, although the Clieveden was clearly wrong in forcing her way first through the narrow neck, it became the equally plain duty of the Diana to refrain from any attempt to exercise her right of precedence, whenever the intention of the Clieveden became reasonably apparent.  And they could not, taking into account the evidence given by witnesses from the Diana herself, come to the conclusion that she fulfilled her duty in that respect.  According to those witnesses, they observed that the Clieveden was coming up the cut at a high speed, and that she maintained her speed up to and beyond the point where she ought to have stopped and waited.  The Diana paid no heed to these indications. Her captain said:-

Even if there had been another steamer alongside the Clieveden it would have been safe and practicable for them to come out and a third to enter at the same time, with the precautions taken by the Diana to enter, to go slow with her engines."

Accordingly she went on, intending to pass the Clieveden port to port, whether the latter vessel had cleared the neck or not; and she did not stop or reverse until she saw that the Clieveden was coming straight into her. That, in the opinion of their Lordships, was an unseamanlike and unwarrantable proceeding.  The Clieveden could not, in the then state of the river, enter and pass upwards through the neck without coming so far towards the south side of the channel as necessarily to interfere with the course of a vessel of similar size going down that side.

Being of opinion  that both vessels were in fault, their Lordships would humbly advise Her Majesty to reverse the orders appealed from; to pronounce a finding to that effect; to order that no costs be allowed to either party in the Court below; and to remit the same for further procedure in terms of the finding.  There would be no costs of this appeal.

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