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Colonial Cases

Steamship Macedonia v. Diricq, 1898

[shipping,collision]

The Owners of the Steamship Macedonia v. J.C. Diricq

Judicial Committee of the Privy Council

1898

Source: The Times, 2 April 1898

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

(Present - LORD HOBHOUSE, LORD MACNAGHTEN, SIR RICHARD COUCH, and SIR FRANCIS JEUNE, with CAPTAIN JAMES KIDDLE, R.N., and  CAPTAIN RICHARD DYER, R.N., as Nautical Assessors.

THE OWNERS OF THE STEAMSHIP MACEDONIA v. J. C. DIRICQ.

This was an appeal from the judgment of the Supreme Consular Court of Constantinople sitting in Vice-Admiralty, of February 10, 1897.  The action was first tried before the acting Judge (Mr. A. V. Lucie-Smith) and nautical assessors, when judgment was entered for the appellants with costs.  It was reheard under the Ottoman Order in Council, 1895, before the Judge of the Court (Mr. C. J. Tarring) and the additional Judge (Mr. W. B. Cracknell), when the previous judgment was reversed and judgment given for the respondent, with costs.

Mr. Aspinall, Q.C., and Mr. Butler Aspinall were counsel for the appellants; Mr. Joseph Walton, Q.C., and Mr. Frank Stafford for the respondent.\

The arguments were recently heard before a board consisting of the Lord Chancellor, Lord Herschell, Lord Macnaghten, Sir Richard Couch, and Sir Frances Jeune, when judgment was reserved.

SIR FRANCIS JEUNE, in now giving their Lordships'; judgment, said the collision took place at a little after 5 a.m. on August 8, 1895, at the entrance to the Golden Horn, off seraglio Point, between the Macedonia, a steamship 365ft. long and 2,520 gross tonnage, and a lighter, which was the foremost of two laden lighters then being towed b y the Salambo, a steam tug.  The Macedonia shortly before left her moorings on the Stamboul side of the Golden Horn near the bridge, and proceeded to the Sea of Marmora.  The Salambo, with the two lighters in tow, the three vessels together occupying a space of about 360 ft., was making her way from off Leander Tower with the intention of entering the harbour of Constantinople between Seraglio Point and two vessels, the Apollo and the Venus, which were lying at the Austrian buoys to the northward of that point.  There was a strong current down the Bosporus running at the time at a rate which their Lordships thought might be taken at about two knots.

Off Seraglio Pointy the current divides, one portion running off with a gradually finishing force into the Golden Horn.  The effect of that current was that the Salambo and her tows would in the ordinary course of navigation be compelled to keep up their heads kin a northerly direction against the current until a certain point in the entrance to the harbour was reached, when the turning of the current to the westward would enable them to keep their heads, and also their course, in that direction.  So far there was no dispute in the case.

But then there was a material dispute as to the relative positions of the appellants'' and respondent's vessels when they were first seen by each other.  It was common ground that the collision took place somewhat to the east of south from the Venus, and their Lordship thought, on the evidence, that its place was nearer to the Venus than to the shore.  In the opinion of their Lordships the true effect of the evidence was to show that the Macedonia and the Salambo observed each other at about 800 yards distance, and when they were respectively at distances about the same from the place of collision.  It would seem clear, especially having regard to the evidence produced on  behalf of the Macedonia, that at the place of collision the current, though probably it had begin to turn to the westward, had not altogether lost its southerly direction. 

In that state of circumstances it appeared to their lordships most material to inquire whether the Salambo and her tows or any part of them were on the starboard bow of the Macedonia at or near the time when the vessels first observed each other.  Having reviewed in detail the evidence on that point, their lordships said the testimony on behalf of the respondents was clear and consistent, and the probabilities also appeared to be in favour of the Salambo's story.   On the other hand, to suppose that the Macedonia starboarded and quickened her speed, though the Salambo and her tows were on her port bow, did not carry with it an equal semblance of improbability.  It might well have been thought, as the Salambo had been coming to some extent to the south, that before her course became one to the west there would be time for the Macedonia to get across her bows.

That finding of fact was one which appeared to have commended itself to the minds of the two learned Judges who re-heard the case.  Their Lordships, in agreeing with them, had not failed to give due weight to the important consideration that the learned Judge who heard the case and who had the advantage of seeing the witnesses must be taken to have considered that the Salambo was, at or soon after the time she was first seen, a little to the starboard of the Macedonia and her tows still more on that bow of the Macedonia. As regarded the absence of assessors on the re-hearing, there did not appear to their Lordships to be any similar reason for hesitation, as the conclusion alluded to was one of fact and did not depend upon nautical experience.  The effect of that conclusion appeared to their Lordships clear as to the conduct of the Macedonia.  She could not be justified in starboarding and increasing her speed in order to endeavour to pass almost across the bows of the vessels which were at the time on her port bow, although it might have been thought that their subsequent course would enable that maneuver to be effected with success.

It appeared clear also, in that state of the facts, that the Salambo was not wrong in porting, even supposing she did so when the Macedonia was first observed.  Their Lordships were not, however, by any means certain that she did in fact port more than was necessary to \keep her head up against the current, until just before the collision.  It was, however, also alleged on behalf of the appellants that the Salambo should have stopped as soon as the starboarding of the Macedonia showed that there was risk of collision. But a consideration of the circumstances of the moment appeared to show that the allegation was not well founded.  Having regard to the action of the Macedonia in reversing, it appeared to their Lordships highly doubtful whether a collision would have been averted in fact; and if the tug stopped long enough to allow herself and her tows to be carried southward by the current, and so clear the Macedonia, their Lordships thought it might well be doubted if the tug could have recovered herself and her heavy tows before they drifted on Seraglio Point.  The captain of the Salambo might also reasonably, as it appeared to their Lordships, have expected that the Macedonia would rectify her mistaken course of starboarding towards them, as in fact she did although too late.

Their Lordships were, therefore, of opinioon that the appeal should be dismissed with costs, and they would humbly advise her Majesty accordingly.

 

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