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Colonial Cases

Wright v. MacDonald, 1859

[shipping, collision]

Wright v. MacDonald

Consular Court, Shanghai
1859
Source: The North-China Herald, 12 February 1859

 

H.B.M. CONSULAR COURT, SHANGHAI.

CIVIL SIDE.

9th February 1859.

WRIGHT v. MACDONALD.

Before D. B. ROBERTSON, Esq., H.M. Consul.

This was an action brought to recover the sum of Tls. 36.6.5 for damage done to the vessel Harvest Home, by the Steam-vessel Meteor.

From the evidence it appeared that the Meteor was towing the ship Akbar out of the anchorage, and when off the Point, the current set both vessels over to where the Harvest Home was at anchor, and a collision resulted.

The DEFENDANT pleaded non-liability on the ground of the Meteor being used only for towing; the Akbar had a licensed pilot Mr. J. Potter on board.

J.  POTTER being called stated, he was in charge of the Akbar, that the tide caught thr vessels' head and set them on the Harvest Home.

H. M. CONSUL observed, there were several points in this case which must be considered ere coming to a decision.  First, the liability of the Harvest Home with reference to being anchored in the fair way, - second, that of the steamer Meteor which had the Akbar in tow, - third, the liability of the pilot Mr. Potter who was in charge of her, - and fourth, the actual cause of the collision.  As regards the first it did not appear that the Harvest Home was in such a position as necessarily exposed her to danger of collision from vessels passing up or down, it was not, perhaps, such as would have been quite safe for a vessel to moor in, but as she had brought up with the intention of Plaintiff to move her as soon as possible into a quieter place, he, H.M. Consul, considered that under the circumstances no blame could attach to him.

Respecting the steamer Meteor, she was simply towing the Akbar; had the master been acting as pilot also, the liability of the vessel might be matter of question, but as his duty was confined to mere towage and obeying the orders of the Licensed Pilot on board the Akbar H.M. Consul did not see that any responsibility in the matter could be laid upon the Meteor, he therefore, came to the pilot on board the Akbar and the question was  whether the collision occurred from negligence or error ion his part, or originated from causes over which he had no control.  The Pilot states that the broken water, or race, off the Point set the vessels down on the Harvest Home and the collision was unavoidable.

It is well known that the portion of the river mentioned by the pilot, if not actually dangerous, is at least fraught with danger and unfortunately vessels arriving or departing generally pass through this broken water, it being the deepest part of the channel, and it could not always, therefore, be avoided, and if the cross current, which traverses it, should happen to catch a vessel's head there was every chance of her being set over bodily into the anchorage on the left bank of the river.  It appeared in this instance such was the case, and all control of the vessel and Tug alongside being lost, she went into the Harvest Home and hence resulted the damage for which compensation was sought in this Court. -

He, H.M. Consul, was therefore of opinion that the collision was an unavoidable event, attributable to natural causes and without fault on either side, ands consequently must be considered as a peril of the sea.  He further observed that in coming to a conclusion in cases such as this, the character of a Pilot must be considered, for notwithstanding "natural causes" may be, prima facie, the origin of an accident, still a question of voidability is very likely to arise, and here it is that the reputation of a Pilot for care and skillfulness carried  weight, for should there be any doubt on this point, the Court would naturally, in the absence of proof of negligence, incapacity or misconduct, be influenced by character and give the benefit of such doubt accordingly, hence the importance it is to Pilots to establish a good name in their Profession. 

With reference to the liabilities of Pilots in charge of vessels, the Law as applicable to British subjects is very clear.  The CCCLXVI. Sec. of the Merchant Shipping Act provides, -

If any Pilot, when in charge of any ship, by wilful breach of duty, or by neglect of duty, or by reason of drunkenness does any act tending to the immediate loss, destruction or serious damage of such ship, or tending immediately to endanger the life  or limb of any person on board such ship, or if any pilot by wilful breach of duty or by neglect of duty or by cause of d drunkenness refuses or omits to do any lawful act, proper and requisite to be done by him, for preserving such ship from loss, destruction or serious damage or for preserving any person belonging to or on board of such ship from danger to life or limb, the Pilot so offending shall for each offence, be deemed guilty of a misdemeanour and also be liable to suspension and dismissal by the authority by which he is licenced.

H.M. Consul then said; as this clause had reference, although it was not applicable to the case before him he took the opportunity to refer to it as it is well it should be more generally known than he had reason to think it was, what is the Law on the subject and what the liabilities of Pilots.

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