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Colonial Cases

The Fire Dart v. The Titan, 1865

[shipping, collision]

The Fire Dart v. The Titan

Consular Court, Shanghai?
6 February 1865
Source: The North-China Herald, 11 February 1865

 

H.B.M. CONSULAR  COURT.

Before SIR HARRY S. PARKES, K.C.B., H.B.M. Consul.

Captain LEWES, Captain ROBERTS, Assessors.

Shanghai, February 6th, 1865.

MASTER and OWNERS OF Str. Fire Dart, versus MASTER and OWNERS of Str. Titan.

and,

MASTER and OWNERS of Str. Titan, versus MASTER and OWNERS of Str. Fire Dart.

   This was a cross-action in which both cases were merged in one by mutual consent.

   The plaint brought on the part of the steamer Fire Dart was to the effect that the person having the management of the steamer Titan did on or about the 7th January, 1865, in or near the entrance of the Wongpoo, so negligently and unskillfully navigate and direct their vessel that the same came into violent collision with the steamer Fire Dart, and in consequence the Fire Dart was greatly injured and delayed; that the collision was entirely attributable to their fault and misconduct, and the sum of Tls. 1,453 was claimed as compensation.

   On the part of the Titan a general denial was made of the above charge.

   The case of the Titan was first proceeded with.

   The deposition previously made by H. CHOWNE sub-lieut. of the Barossa, was read.  Witness was coming up the river in the Barossa when the collision took place.  He considered that if the Fire Dart had continued her course after she passed the Barossa the collision need not have taken place.

   The deposition of the chief engineer of the Titan was then read.  He deposed that the Titan was not going at more than half speed.  The engines were stopped before the Fire Dart struck her.  After the Titan righted she went ahead slowly.  The Fire Dart seemed to him to be lying right across the bow of the Titan when he first noticed her.

   The deposition made by C. BAKER, 1st Officer of the Vulcan, guest on board the Titan at the time, was read.  He saw that the Fire Dart's paddle wheels never stopped during the collision.  The Titan steamed slowly ahead after the collision but was recalled by the Fire Dart's whistle.  They asked Captain Lackworth whether he did not see their read light.  Captain Lackworth answered that he did not.  Witness did not see it himself.  He did not believe there would have been a collision had the Fire Dart kept her course.  He did not think there was room for the Fire Dart to pass between the bank and the Titan.  He could not swear that there was no red light on board the Fire Dart, but he did not see one.

   The deposition of the chief officer of the Titan was then read.  The Fire Dart asked the Titan to tow him up to Shanghai.  Captain Lackworth said he could not, but that he would lie near him for the night.  This he did.  He, wirness, considered that the Titan was too close in shore.  He did not notice any coloured lights on board the Fire Dart, but he would not swear they were not there.  He did not notice the Fire Dart's wheels moving round after the collision.

   J. E. COCKERAM, master of the steamer Titan said: - I remember going down the river to look for ships on Friday the 6th of January last.  I recollect anchoring close in shore on the following day at about 2 o'clock p.m.  The Koutoan beacon bore from where I anchored, about S.E. at a distance of about two miles.  The Barossa passed me, and I weighed at about 6.30 p.m., and followed her on a N.W. by W. course.  We went on for about 20 minutes at about 5 miles an hour or half speed.  The tide was then flood.  At 6.45, I observed the Barossa come to an anchor about two points on my starboard bow.  I still continued my course with the intention of anchoring close in shore again.  I observed a green light on the other side of the Barossa, then about three points on my starboard bow.  A minute or two afterwards, I ob served the hull of a vessel, and still saw the green light at the mast-head.  She was steering direct for my paddle-box.  She was then about two cables' length distant.  The night was clear.  I said "stand by, below" and then sung out "stop her; put the helm hard a starboard."  If the Titan had not gone off, she would have been struck right end on in the paddle-box.  The Fire Dart out her port paddle-box against our starboard paddle-box.  Our head was W.S.W. when she struck us.  We stuck on the mud and had to go full speed astern to get off again.  After we got clear I went ahead.  Their port-bow struck on my starboard bow, and their port paddle-box against my starboard paddle-box.  When a cable's length off, I shouted our "where are you coming to," butr received no answer.  After they struck me they were still ogling full speed ahead.  Before we got clear somebody called out "Have you not seen our red light," I answered "No, where is your light, look for it."

   After getting clear we looked at my compass and found we were heading S.W.  They asked me to take them in tow to Shanghai.  I told them I could not, but that I would lie by them for the night.  I did so. I do not know why they wanted me to take them in tow.  I went on to Shanghai in the morning.  All hands were on deck at the time of the collision.  They were fishing the port anchor. From the time that I gave orders to heave the anchor up until I anchored again, I was never off the bridge.  My lights were burning, all new [???].

   TO THE COURT: - I saw the Titan's three lights distinctly.  The Pilot, a Chinaman, told the quartermaster to put her helm to port.  The mate told him to put it hard a-port about half a minute after.  Hearing the pilot tell the quartermaster to port the helm, drew my attention to the vessel ahead.  I had just come on deck. Thirty seconds did not elapse between the order for the helm to be put hard a-port and the collision.  I can't say as to the thirty seconds; it might have been a minute.  I saw the green light just as the order was given to put the helm hard a-port.  This order was given before the red light disappeared.

   J. ASKING said: - I am quartermaster of the Fire Dart.  I was steering at the time of the collision.  I first saw the Titan ahead rather on the port bow, just after we passed the Barossa.  I saw all three lights on the titan.  We were then steering S.E. ½ E.  This was about ten minutes of quarter of an hour before we came into collision.  We anchored inside of the man-of-war.  We were about two ship's lengths inside.

   To Mr. COOPER: - When we passed the Barossa she was about three ship's length distant to starboard. I don't recollect what time elapsed between the time we passed the Barossa and our changing course.  When we did so, the Titan bore S.E. ½ E.  The collision took place on the starboard sisde of the Barossa.  Our engines were never stopped.  The mate was forward at the time of the collision.  The chief Engineer ran below to the engines just before the collision.  I consider that the Titan ran into the Fire Dart.  If we had continued our course down the river I think there would have been a collision.

   TO THE COURT: - I believe the mate first saw the Titan.  I am certain I saw three lights on board the Titan.  She was about two miles off when I saw her.  From the time I saw her until the collision, about twenty minutes elapsed.  I think we list sight of one of her lights.  I am not sure.  The Fire Dart was going about 8 knots at the time.  She was heading about S.W. when she struck.

   E. G. LOWE said: - I am bookkeeper in Messrs. Heard & Co.'s.  I made up this account (as to the expenses of repairing).  I have gone over this myself and can testify to its correctness.

   Mr. EAMES, in summing up the case for the steamer Fire Dart, said that the credibility of the witnesses called for the other side was a question to be left entirely to the Court.  The testimony of the Captain of the Titan was not very intelligible; there was no reason why, if the Titan could have been put five points to starboard, she could not have payed off the same number of points to port.  The Fire Dart had an undoubted right to follow the course she did.  It was probable that the Fire Dart was almost on top of the Titan before it was discovered by those on board the latter vessel, and in their alarm they put the helm to starboard.  

[A paragraph here has been removed to the correct place: Eames: summing up.]

[The trimmed] and put in the boxes before we got under weigh.  I can swear that I saw the three lamps in their proper position and burning the whole time.  After returning to Shanghai I had a survey made, and made a contract for repairs for Tls. 750.  The repairs were finished on the 21st January, fourteen days after the collision.  I paid two surveyors Tls. 16 each.  I claim Tls. 50 a day for demurrage.  The average earnings for the Titan for the lest three months have been Tls. 50 a day.

   To Mr. EAMES: - When I first saw the Barossa she bore about N.W. by N.  About 4 or 5 minutes after I first saw the Fire Dart she was heading right on for our paddle box.  I have commanded steamers on and off for twelve years.  I have also served as pilot to the mail boats for over two years.  When I first saw the Fire Dart she was not swinging.  When I saw her swinging she was close to us.  A nautical man not seeing the red light, but seeing the mast head light and no side light cannot always tell whether a vessel is swinging.  Two or three seconds elapsed between the time I saw her heading for my paddle box and the collision.  We were steering N.W. by W. and she fell of six points in three seconds.  When I saw her coming on for the paddle box she was still falling off to starboard.  Had I ported my helm, she would have struck me right on.  Three or four seconds before the collision I saw the Fire Dart head for us.  I could not have seen how the vessel was heading, at a greater distance than three quarters of a mile.  I myself first discovered that the Fire Dart was heading on for us.  I immediately gave my orders.  By Tls. 50 a day earnings, I do not mean my net earnings.  I am certain my engine was stopped before the collision took place.  It had barely stopped.

   TO THE COURT: - The Titan draws about 8 feet 6 inches of water.  If the Fire Dart had kept her course, she would have cleared us by three cables' lengths, butr she suddenly changed her course and headed across our bows; she was then at a distance of about three cables' lengths.  I am quite certain that her paddle-wheels continued to revolve until after I cleared her.  I am sure the paddle-wheels were going ahead, not the reverse.  If the Fire Dart had stopped her engines when alongside, there would not have been much damage done.  I saw their green light and white light, not the red light.  If I had seen the red light I would have put my helm hard a-port immediately.  They crossed the Barossa's bow with the intention of crossing our bow.  Had they cleared our bow they would have gone on the bank.  I can't understand why the Fire Dart acted as she did.  She passed on with helm hard a-port; I starboarded and went ashore.  The Fire Dart went right round the compass on her port helm.

   T.  WALTER, pilot of the Barossa on the 7th January last, said: - At about 6 o'clock I was at dinner in the wardroom, the Barossa being at anchor, when I saw the lights of a vessel passing on the port side.  I don't exactly know where the Titan was then.  I shortly after heard a whistle as if of alarm.  I jumped on deck and saw the Fire Dart on the starboard side with her head upstream. When I saw the Titan at anchor, she was close in to the south bank.  When the Fire Dart passed the Barossa she was heading about S.E. ½ E.  If she had not changed her course, I think the collision would not have taken place.  When I next saw the Titan she was on the south bank, but nearer to the Barossa. The Fire Dart had no business on the starboard side of the Barossa at all.

   To Mr. EAMES: - When the Fire Dart passed the Barossa's bow she could not have been steering otherwise than S.E. by E. or S.E. ½ E.  Three or four minutes after I saw the steamer through the port I heard the whistle.

    To Mr. COOPER: - The Fire Dart might perhaps have gone between the Titan and theshore. It

would have been running a great risk.  No pilot would have taken a vessel in between.

   PEDRO, 2nd mate of the Titan said: - I was steering the Titan at the time of the collision.  After getting under weigh the master told me to steer N.W. by W.  I kept that course.  About fifteen minutes after getting under weigh I saw the Fire Dart.  I saw a green light on the port side of the Barossa. The Fire Dart passed across the bow of the Barossa and struck the Titan.   About 6 or 7 minutes elapsed before I first saw the Fire Dart was going to strike us, and the collision.  The Captain told me to starboard about a minute before the Fire Dart struck.  I put the helm over about two or three spokes, not hard over.  When the Fire Dart struck I could not see the paddles, so do not know whether they were revolving. The Titan's had stopped about a quarter of a minute.

   To Mr. EAMES: - The Captain told me to starboard the helm.  The mate did not tell me.  When the steamer struck I was still putting the helm to starboard.  I was prevented from putting it hard a-starboard by trhe vessel's heeling over.

   This closed the case for the Titan.

   E. A. PITMAN said: - I am first officer of the Fire Dart and was in collision with the Titan on the 7th January.  I was in charge of gthe deck at the time.  I ordered the pilot to port and keep her off two points to avoid the Titan. We were heading S.E. ½ E. at first.  I had the helm put to four points to port.  The steamer was four points on the port bow.  All of a sudden I saw trhe steamer put its helm a-starboard and run directly towards us.  I told the man at the wheel to put the helm hard a-port, which he did, and I blew the whistle.  The bow of the Titan then struck the bow of the Fire Dart.  She knocked a hole through the Fire Dart's hull and did other damage.  The engine was stopped when we struck.  I saw that our three lights were in proper position.  They remained there until we anchored.  It was 20 minutes to 7 o'clock when I first saw the Titan, and it was between 5 minutes to 7, and 7 o'clock when the collision took place.  We were bound for Ningpo. We did not go on after the collision.  We anchored and went back to Shanghai the next morning.  I considered it unsafe to pursue my voyage.  The hole was right under the hull of the vessel and the wheel was also disabled.

   To Mr. COPPER: - I have been on board the Fire Dart since November last.  I have been in no collisions before I joined the Fire Dart.  I have been present at no collision but this one, since I have been in her.  There was no particular order given me by Messrs. Heard & Co. with regard to porting the helm in cases of danger.  When I changed my course the Titan may have been a mile and a half distant.  She bore S.E. ½ E. after we kept away two points.  By doing so we kept the Titan further from us.  We did not then anticipate collision.  I saw the head of then Titan coming round as if the helm had been put hard a-starboard when about a quarter of a mile off.  I kept the engines going in order to get clear.  (Wirness illustrated in paper the position of the steamer and the course they pursued).  When I passed the Barossa the Titan was right ahead or perhaps a little on the port bow.  I deny that the Titan was on the south bank of the river and that I crossed over towards her.

   TO THE COURT: - I saw the Titan right ahead, a little on the port bows.  She had her three lights out.  I am confident that I looked right ahead.  If she had been two or three points in the starboard side I might have ported.  Had she been close to, on the starboard bow, I would have starboarded.  I saw the red and green lights of the Titan quite distinctly.  The Titan bore S.E. ½ E. when I looked at her.  I was standing on the port forecastle.  When the Titan was coming towards us, we could not have afforded to keep on our course longer before porting our helm.  It did not occur to me to try to stop the engines sooner than I did.  I considered it would have been more unsafe to do so.  The general rule is to pass on the port side.

   F. HAROLD said: - I have been engineer of the Fire Dart for some time past, and remember the collision on the 7th January.  I saw the Titan before the collision, on going on deck after dinner.  I saw her three lights ahead, a little on the port bow.  The Barossa was on our starboard side, a little astern.  I did not notice my compass.  I was not on deck at the time of the collision.  When I saw that collision was likely to take place, I went down to stand by the engines.  I did nothing until after the collision occurred, when I stopped the engines.

   To Mr. COOPER: - I don't know why the Titan kept the course she did.  I lost sight of the red light a few seconds before we came into collision.  I am quite positive she was not over on the south bank.

   [The following paragraph removed from another column.]

   Mr. EAMES, in summing up the case for the steamer Fire Dart, said that the credibility of the witnesses called for the other side was a question to be left entirely to the Court.  The testimony of the Captain of the Titan was not very intelligible; there was no reason why, if the Titan could have been put five points to starboard, she could not have payed off the same number of points to port.  The Fire Dart had an undoubted right to follow the course she did.  Ity was probable that the Fire Dart was almost on top of the Titan before it was discovered by those on board the latter vessel, and in their alarm they put the helm to starboard.  ...............

... sub-lieutenant of the Barossa, when put in the wirness-box, had stated that the Fire Dart had got coloured lights out.  If this were true, and there seemed no reason to doubt the statement made by the witness, who must have been entirely disinterred, it shewed the amount of attention that had been paid to the movements of the Fire Dart by those on board the Titan, as by their own statements they did not perceive any red light on board.  It was about the safest course for the Fire Dart to pursue, to port her helm when she saw the close proximity of the steamer.  He (Mr. Eames) would not delay the Court by quoting authority to prove that the fault of one did not exonerate the other, supposing it were decided that the Fire Dart was to blame.

   Mr. COOPER said that the evidence adduced in support of the case of the Titan was so super-abundant that it was almost an insult to offer any comment upon it; he would, however, remark that it seemed to him almost impossible to imagine that the collision was merely accidental.  On the contrary, he regarded it as of a more wilful nature than the generality of collision cases.  The sub-lieutenant of the Barossa stated that the collision might have been avoided by the Fire Dart, and this was corroborated by the evidence of the pilot who was on board the Barossa at the time the occurrence took place.

February 7th.

   The award odf the Court, the reasons for which were given at great length, were in favour of the Titan.  The evidence given was so conflicting that, had not the disinterested evidence of Lieutenant Chowne of the Barossa been forthcoming, the Court would have found difficulty in deciding.  That officer's evidence, however, showed that the Fire Dart put her helm a-port, in order to avoid collision with a vessel that was approaching her on her starboard bow.  The rule that two ships meeting should put their helms a[-port, was mis-applied under these circumstances; as it is only intended to be followed when vessels meet "end on, or nearly end on," and this could not be considered to mean two ort three points on either bow.  When collision became imminent, the Titan stopped her engines and put her helm hard a-starboard, while the Fire Dart simply kept her helm hard a-port, without attempting to stop, and kept her engines going even during the time that the vessels were in collision.  The officer in charge of trhe Fire Dart admitted that he anticipated collision  when the vessels  were a quarter of a mile apart, and under these circumstances should have exercised his seamanship, instead of adhering to a rule which it was allowable to depart from, when greater danger attended the observance than the breach.

   The Court therefore held that there had been an error in judgment on the part of the Fire Dart, in respect to steerage, and a want of ordinary precaution in  not stopping the vessel when collision became imminent; and considered her, therefore, liable for all the damage incurred.

   In conclusion, the Court remarked that it would no doubt be as satisfactory to the parties concerned as it was to the arbitrator, that the assessors by whose assistance the decision had been arrived at, represented both the nationalities interested, and quite agreed in the decision , which unfortunately proved unfavourable to the foreign side which had so liberally offered to abide by the arbitration of the Court.

 

[One paragraph was misplaced, and parts of another are messing.]

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