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Colonial Cases

Sutherland v. Braithwaite, 1875

[shipping collision]

Sutherland v. Braithwaite

Civil Summary Court, Shanghai
Mowat, 9 March 1875
Source: The North China Herald, 11 March 1875

 

LAW REPORTS.

CIVIL SUMMARY COURT.

Shanghai, March 9th.

Before R. A. MOWAT

HUGH SUTHERLAND v. JONATHAN BRAITHWAITE.

   Plaintiff sued to recover $99, for damage done to his pilot-boat (No. 8), through the ship Belled Will, of which the defendant is captain, fouled her as she lay at anchor, near the mouth of the Yangtze, at two o'clock on the morning of the 26th ult.

   WILLIAM McKAY, boatkeeper of the No. 8, deposed, that, at the time named, the boat was at anchor about four miles from the light-ship, waiting for the plaintiff, who was expected to come down  river with a steamer.  About twenty minutes past two, Macpherson, a pilot, who was on board, said there was a ship coming up, which he supposed wanted a pilot, and he afterwards ordered a Chinaman to get out a flashlight, to show the captain where the boat lay.  Four or five minutes afterwards, he ordered the Chinaman to show another.  Soon after that, Macpherson came to witness in his berth, and told him to look out for himself, as he was afraid the ship would run the boat down.  Witness heard the orders given about the flashlights.  He did not stop to dress, but ran on deck, and noticed the lantern in the rigging was burning quite brightly.  He had been about three minutes on deck when the ship, which he afterwards ascertained to be the Belted Will, came in collision with the boat.  Her starboard bow touched the boat's starboard bow, then passed along, grazing the boat's side, to her quarter, carrying away a lanyard and also the masthead, and damaging the bulwarks.  The weather was pretty calm at the time.  The boat was brought up the river to be repaired.  The mast was broken close to the forestay.

    By Plaintiff - The lantern was carried away at the same time, and the step of the mast has since been found to have been broken.  The boat takes a little more than she did before, and is "started" on both quarters,

   Plaintiff was then sworn, and deposed that he was the owner of the boat.  After she was brought up the river, he examined her, and found her damaged as above described.  He had called in a Chinese carpenter to estimate the cost of repairing her, which is set down at Tls. 1o00. (Estimate produced.)  Plaintiff had spent Tls. 70 on the boat only a month before, strengthening and repairing her.  Flashlights were used to let ships know the whereabouts of a pilot-boat, and also as a means of preventing danger.

    JOHN MACPHERSON, the pilot referred to by the first witness, was also examined, and entered very minutely into details as to the boat's position, and also that of the ship when approaching her.  He was under the impression that the vessel wanted a pilot, and therefore ordered the flash-lights to be burned, and ordered the crew to commence to get the boat under weigh, to save time in getting to the ship.  He burnt a second flashlight, because he thought the ship was coming too close to him, but she stroll came on.  He then hailed the ship, to put her helm hard a-starboard, so as to avoid striking the boat, and heard someone on  board ship cry out, "a light right ahead," but heard no one answer.  The ship's course, however, slightly altered, and so avoided a direct collision.  It was a clear morning, and Gutzlaff light was visible.  The remainder of the witness's testimony was corroborative of that the first witness.

   The defendant's statement was to the effect that, at about two in the morning of the 26th, he was on deck, near the man at the wheel.  The pilot was also near at hand, and the ship was steering towards the light vessel, when he suddenly heard the chief -officer, who was on the forecastle securing the anchor, suddenly call out to starboard the helm, as there was a light ahead.  The word was passed two or three times, showing the case was urgent, and he (the captain) ran to the wheel to assist the man to get it round quickly.  After that he looked over the side and saw a small boat a little on the starboard bow, but no light.  The ship was close to her, and as she passed, her foreyard caught the boat's mast and broke it.  The people on board were "singing out," and appeared in great confusion.  All that could be done had then been done on board the ship, and it was a narrow escape for the boat's crew.

   FRANCIS GRANDIN, the chief officer, and ROBERT DAVIDSON, the second officer, of the Belted Will, also gave evidence, which was in effect a repetition of the main facts contained in the captain's statement.  The second officer, however, admitted that he heard the lookout man report a light ahead, and it was not until his second report (about a minute afterwards) that any order was given to starboard.
   WILLIAM WITTHOFT, the look-out man on board the Belted Will, deposed that about two in the morning of the 26th ult., he saw a small light, "Like a steamer's light far away," and reported it, but got no answer.  He turned round to see if anybody was behind him to pass the word along, but there was a great noise of men bawling g, and he turned to look at the light again, and then saw a flash-light, where he had seen then other, and reported it again.  No notice was taken of this, and he turned round once more to see what it was. He then saw the flashlight moved backwards and forwards, and as he was reporting a light for the third time, he heard the mate calling out to hard-a-starboard the helm.  Between the time of his first seeing and  reporting the small light and the helm being altered, perhaps two  minutes had gone, and witness thought if the helm had been starboarded when he first called out, the boat would have been cleared.

   Plaintiff cross-examined all those witnesses, but elicited nothing more material than the facts above given

   His HONOUR said that however it might have been on the evidence of the captain and chief officer, it was quite clear, after the evidence of the second officer, and more especially of the look-out, that the ship was in fault.  The fact was the officer of the watch was superintending the crew in the work of securing the anchor, and, consequently, either the report of the look-out was not heard or was not attended to.  It was no use having a look-out, unless attention was paid to his reports, and the steps necessitated by them taken.  In the present case, there could be no doubt that, if the order had been given to starboard on the first report of the look-out, the boat would have been easily cleared, considering it was after a delay of about two minutes, she was all but cleared.

   It was not necessary to go into the question whether the boat had a proper light or not, because the evidence showed she was seen from the ship in ample time to enable those on board to avoid a collision.  He (His Honour) believed that there was a proper light, and if not was not seen by the captain and officers, it was not seen till the flare-up light was being waved about, and the effect of that would be to obscure the smaller lantern light.  Judgment would therefore be entered for the plaintiff on the point of the collision being ascribable to the ship.  As to the amount t of damages,

   Defendant said he had reason to think the amount claimed was exorbitant.

   His HONOUR said he ought to have gone and examined the boat, in order to be prepared with his view of the amount of damages.  He had now better take his carpenter, and make an examination of the boat, with the plaintiff.  If they could agree on the amount themselves, there would be no necessary for coming to the Court again on that point.

   Plaintiff and Macpherson asked for Tls. 10 per day each, as compensation for the detention of the boat, as they had been unable to pursue their avocation as pilots since the occurrence.

   His HONOUR said he was not trying that question now, and could not entertain it at that moment.

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