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Colonial Cases

Thompson v. The Hang Chow, 1869

[shipping, collision -contributory negligence]

Thompson v. The Hang Chow

United States Consular Court, Shanghai
Source: The North-China Herald, 28 August 1869



Before G. F. SEWARD, Esq., U.S. Consul-General, and Messrs. C. J. ASHLY, J. C. PURDON, and H. INGLIS, Associates.


Claim Tls. 13,584.


This is a collision case.  The British lorcha King-dong-chang, a two-masted, native rigged vessel, of 119 tons, was running down the Yang-tsze at a point opposite the Black House Shoal, and near the little Beacon.  Her course, as given by the witnesses for the prosecution, was south-east by south.  They say also that the tide was ebb; the night bright, but without a moon; that the vessel was on the port tack, and close hauled.  While pursuing this course a steamer, which proved to be the Hangchow, was seen on the port bow.  The King-dong-chang held her way, and the two vessels approached one another, until the lorcha, a collision seeming inevitable, was allowed to wear off.  The two craft came together, the steamer striking the port bow of the lorcha.  The latter sank in a few minutes and with her cargo, was a total loss.  One witness says she was a point or a point-and-a-half on the starboard bow.  Another that the lorcha was two, or two-and-a-half points on her starboard bow.  The course of the steamer was north-west one-quarter west at first.  On seeing the lorcha she dropped off to north-west three-quarters west.  As the two vessels approached, the lorcha's helm was put to port, and she struck the steamer head on, on the starboard side, about 40 feet from her stern.

The question is whether the lorcha, or the steamer, or both or neither was at fault.

The leading allegation of the libellants is, that the lorcha while pursuing, as she had a right to do, her course, was run down by the steamer.  This is alternated by the statement that if the lorcha was not actually run down as alleged, and did as the respondents state put her helm to port, and in consequence sheered from her course so as to be brought into a collision with the steamer, it was the fault of the steamer in running so near to the lorcha as to put those navigating the latter in a state of alarm.

The allegation that the steamer was the vessel immediately in fault for the collision, I do not find supported by the evidence in either of these directions.

The lorcha, before the collision, was running a course which varied from the course of the steamer no more, I judge, than two points.  As the two vessels came near together, the master of the lorcha says at a distance of 30 or 40 yards, the helm of the lorcha was put to port, and the sheet eased off.  The same witness says that the object was to bring his vessel around, so as to run with the steamer, and by this means to avoid, do far as possible, the injury from a collision which had become inevitable.  He says his vessel had swung 3 or 4 points before the collision occurred.  From this it would appear that the lorcha and the steamer, at the moment of the collision, were placed at an angle of from 5 to 6 points.  The evidence of the experts, Messrs. Paul and Blethen, would indicate that they were placed at an angle of 8 points, or a quarter of a circle.  The steamer would hardly have gone off enough after the helm of the lorcha was put to port, to have added much to the angle effected by the movement of the lorcha.  It is probably, then, that the lorcha came around not less than four points.

The length of the lorcha is not in evidence, but I judge that, including the bowsprit, it was not less than from 100 to 120 feet.  Without making an allowance for a forward movement on the part of the lorcha, but presuming that she turned to the helm as if the rudder post was a pivot, the distance she would have passed clear of the steamer, had she continued her previous course, would not have been less than fifty feet at the steamer's stern.  But she would have been forging forward through the water while swinging around.  I estimate that this forward movement would have taken her a not less distance ahead than 300 feet, and to the right 200 feet.  In all probability then, had the lorcha kept her course she would have passed astern of the streamer of from once to twice her own length.

The immediate cause of the collision then was the consequence of the order to put the helm up, and to ease off the sheets.

Whether the master of the lorcha should be strictly held to the consequence of his injudicious order, remains to be considered.  The doctrine stated by the libellant's counsel may be given in the words of the opinion of the Supreme Court in the case of the propeller Genesee Chief, 12th Howard, 461.

If in the excitement and alarm of the moment a different order might have been more fortunate, it was the faulty of the steamer to have placed the master of the schooner in a situation where there was no time for thought; and she is responsible for the consequences.  She had the power to pass at a safer distance, and had n o right to place trhe schooner in such jeopardy that the error of a moment might cause her destruction and endanger the lives of those on board.  And if such an error was committed under such circumstance it was not a fault.

I desire to hold up this language to the masters of American vessels.  It is well known that the Chinese are ignorant of our rules of steering, of lights, &cv., and are very likely to become confused in the face of danger.  This should be remembered as an element to be provided for in approaching Chinese craft, and when it is disregarded the Courts will be very likely to deal severely with the foreign vessel.  It is absolutely criminal to forget the inexperience and wan t of coolness of Chinese navigators, and it is altogether unreasonable to set down their failures to perversity.

The language of the Supreme Court is not, however, appropriate to the case in hand.

In the Genesee Chief case, the steamboat was coming directly upon the schooner.  In this case the steamer was going well clear, and the lorcha was put around so as to bring about the collision.  Again, in this case the master of the lorcha was not taken by surprise, or at least should not have been.  He had observed the steamer for some time.  He had seen her starboard light only, for it was impossible that he could have seen both lights for more than a short time, after the steamer hove in sight, and knew that the steamer was going to cross his track.  He had a perfect means of calculating what would happen, and there was no reasonable occasion for excitement.  And, indeed, I am disposed to think that the helm was put up against the order of the captain, or without them.  The captain's own story is, to my mind, simple incredible.  He says, "I proposed to wear round as as to run with the course of the steamer, and thus save damage."  But he was running a very nearly opposite course, and to wear round enough would be the work of much time, and would require a great deal of room.  There is evidence that the lowdah acted on hjis own responsibility in putting up the helm.  The master of the lorcha and the lowdah both deny this; but it is reasonable to believe that such was the case.

A further consideration comes in here.  It is clear that a sailing vessel has no right to neglect ordinary precautions, and then to throw the whole burden on the steamer.  It appears that the lorcha had no side light.  Her master should have remembered this, and knowing the course of the streamer, should have luffed ort tacked if he thought there was danger.  It does not appear that a collision would have been the result of her holding her course, but if it was true that such would have been the result then clearly it was the duty of the lorcha to have taken the ready means available to avoid the danger.  The rules themselves provide for this case.  The rule that the sailing vessel is to keep her course when meeting a steamer is expressly subjected to the following limitation.

Due regard must be had to any special circumstances which may exist in any particular case rendering a departure from the rule necessary, in order to avoid immediate danger.

If the lorcha had been a Chinese vessel, manned by Chinese, I might have been disposed to look with less disfavor on the unwise act which precipitated the collision, and have censured the steamer for not giving her more room.  It is true that the steamer had no means of knowing that the lorcha was not a native vessel.  But this element for consideration does not come in here.  The lorcha was a foreign ship, and is to be held as such.  And one of the first principles of Maritime law is that the ship is responsible for the incompetency of its officers and crew.  This was expressed in the St. John and Paimeetal 10 Howard, 585.

Error of judgment will be no defence, especially if resulting from incompetency, and erroneous opinions of duty on the part of those in the immediate management and control of a vessel naturally turn a doubt, arising from conflicting evidence upon a question whether or not a proper direction was given in the emergency against them.

There was undoubtedly risk of collision in this case. The two vessels were moving on converging lines.  The steamer was making eight knots; the lorcha perhaps six or seven.  By projecting their respective courses on a chart, having regard to their bearings, it will be seen that the two vessels would reach simultaneously, or nearly so, the point where the converging lines crossed.  It was the part of the steamer then, under this rule to slow, or to stop.  She did not, and this is prime facie evidence of fault on her part.

It is urged again that the steamer should have given way to the lorcha.  Giving way is interpreted to mean the passing to windward and astern of the sailing vessel, instead of ahead of her.

I do not sustain this argument.  I have heretofore held that as the responsibility to avoid a collision rests with the steamship the steamer should have the corresponding discretion.  There are authorities for either view.  The latest ruling of the Supreme Court of the United States, was in the case of the "New York and Liverpool U.S. Mail Steamship Company" v. Rumball," 21st Howard, 372.

Under the rule that a steamer must keep out of the way, she must of necessity determine for herself and upon her own responsibility, independently of the sailing vessel, whether it is safer to go to the right or the left, or to stop; and in order that she may not be deprived of the right of determining the matter wisely, and that she may not be defeated or baffled in her attempt to perform her duty in the emergency, it is required in the admiralty jurisprudence of the United States that the sailing vessel shall keep her course, and allow the steamer to pass either on the right or left, or to adopt  such measures of precaution  as she may deem best suited to enable her to perform her duty, and fulfil the requirement of the law to keep out of the way.

The same view was expressed b y Dr. Lushington in the case of the Gazelle, 11 Robinson, 518:-

It is an undoubted proposition that the steamer is bound to give way, whether the sailing vessel be upon the starboard or the larboard tack.  What, then, is the meaning of the term give way?  I have already stated my own impression that it means getting out of the way by any measures that the occasion may require.

And this construction of the right and duty of a steamer, when meeting a sailing vessel, is perfectly affirmed by the Rules more lately published, which say only, "the steamship shall keep out of the way of the sailing ship;" while in the case of steamers meeting, or sailing ships meeting, precise rules as to thje manner of passing are laid down.

There is also an allegation that the third officer, who was the only officer on deck up to a moment before the collision, was not a competent person to be left in charge of the vessel, and it would seem at first sight that it was hardly well to leave the vessel in charge of an officer of that grade.  But I believe that it is the duty of a third officer in the steam merchant service of the U.S. to take charge of the navigation of the ship during his watch, and that he is chosen with reference to that duty.  There is no reason to doubt the competency of this individual officer.  He had served some months in his present position, and previously for several years as quarter-master; a post in which a person might qualify himself for the higher place.  He seems to have been promoted for merit.

Thus far it would appear that the steamer was prima facie in fault for not having slowed when she saw the lorcha, and that the lorcha was in fault for having had no side lights out, and for having ported her helm and run into the steamer.  The failure to luff or tack I do not consider a fault, because the necessity of such course, the libellant's allegations to the contrary notwithstanding, has not been shown.

The rule is that where there is fault on both sides the damages shall be divided.

But it is manifest that there are cases in which the neglect of a rule may not be an essential fault, and I come now to consider whether the neglect of the steamer to slow was such a fault as should require me to condemn her in the damages.  The rule to slow is positive as it stands.  It does not say that the vessel shall slow unless there is some other way in which to avoid a collision.  It is simply shall slow where there is danger of collision.

The rule is not, however, impetrative.  It might happen that to slow would be to do just what would occasion a collision.  The real intent may be seen, when it is read in connection with the rule which immediately precedes it.

If two ships, one of which is a sailing ship, are proceeding in such a direction as to involve risk of collision, the steamship shall keep out of the way of the sailing ship.

The steamship then has the right to judge whether it will be better to slow, or to go to one side or the other of the sailing vessel.  If she does not slow, the responsibility is heavy; the failure becomes prima facie evidence of fault.  But if it shall appear that the failure to slow had no direct connection with the collision, that the collision resulted simply from the erroneous act of the sailing vessel, then the steamer is absolved from blame, her fault is not considered an essential one.

Such was this case.  The steamer would have cleared the sailing vessel by a considerable distance had the sailing vessel herself not departed from the rule which should guide her.  I allude to the 18 art. Of the collision code, which reads:

When by the above rules one of two ships is to keep out of the way, the other shall keep her course.

The steamer was doing what was incumbent on her, and would have accomplished it but for the utterly indefensible act of the lorcha.

I have spoken of the rules as binding in this case.  It is true that they have not been declared the law for the waters of China.  But they have been declared the law for British vessels, and the law for American vessels, and perhaps this may be held sufficient to justify me in applying them in this instance.  They have again been appealed to on both sides in this case; and what is of itself sufficient, the code is that of all Western States, is understood by all Western Navigators, and the wisdom and necessity of its provisions are recognized by foreign navigators the world over.  They are so widely known, and so appropriate, that as between foreign vessels, at least, if neglected, and damage ensues, the neglect will be a clear ground of blame.

It will be seen, I think, that the respondents in this case have satisfied the requirements of the law in the defence which has been made.  It is laid down in Parson's Maritime Law, vol. I, p. 191:-

If a collision has happened, and one vessel has been guilty of some negligence, the burden is on her to prove that this negligence was not the cause of this collision.

And again, - And a plaintiff in a cause of collision must prove both care on his own part, and want of it in the defendants.

The libellants have failed in both directions.

Decree. - I dismiss this libel, with costs against the libellants.

GEORGE F. SEWARD, Consul-General, Acting Judicially.

Assented to: - H. INGLE, C. J. ASHLY, JOHN G. PURDON, Associates/

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