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Colonial Cases

Sing Yung v. The Swatow, 1876

[shipping collision]

Sing Yung v. The Swatow

Supreme Court for China and Japan
Mowat, 17 August 1876
Source: The North China Herald, 26 August 1876

LAW REPORTS.

H.B.M.'s  SUPREME COURT.

Shanghai, August 17th.

Before R. A. MOWAT, Esq. Deputy Acting Judge (sitting in Admiralty), and Mr. A. SMITH, Assessor.

   Mr. HANNEN appeared for the plaintiffs.

   Mr. WAINEWRIGHT conducted the defence.

THE-SING-YUNG and Others v. The British Steamer Swatow.

   This was an action in which the master and owner of the junk Zoon-Tuk-Faie and the owner of her cargo, sought to recover compensation from the British steamer Swatow for damage sustained in a collision.

... [not transcribed] ...

   Mr. HANNEN in reply said - I am quite ready to admit that the main point in the case is whether the junk was at anchor at the time of the collision, and I am obliged also to admit that all the wiriness's for the defence have sworn that she was under sail.  On the other hand, it is equally true that all the witnesses for the plaintiffs have sworn that she was at anchor.  In this'd conflict of evidence it is very common for Europeans to assume that the truth must necessarily lie on the side of the foreigner, on the ground that the foreigner does not tell as a rule deliberate falsehoods.  But it is only necessary to refer to the reported cases of collisions, to show that this direct conflict of evidence is almost universal in such cases. ...

   The story told by the plaintiff's witnesses is consistent, and in no way shaken by cross-examination.  That the junk with her sails up and yanning about with the conflicting action of the tide and wind should have deceived the steamer is not impossible, but once having come to the conclusion that she was sailing, the defendant's witnesses stuck to it, but in order to do so they have to assume that the witnesses for the plaintiffs are a set of perjured ruffians all bent upon telling lies now as they were upon getting to the bottom of the Whangpoo on the morning of the 18th June,  In order to believe that the steamer mistook a junk at anchor, for one under sail, than to credit this astonishing mixture of folly and villainy.

   After a few minutes private consultation with the assessor, His lordship delivered

Judgment:

   HIS LORDSHIP said - As I have no doubt as to what my decision in this case should be, I shall give judgment now and not put the parties to the expense of coming to the Court again to hear a written judgment read.

   The sole question in the case is - Was the junk at anchor or not?  If she was at anchor, it is not contended, I suppose, on the part of the steamer that she (the steamer) is not liable; and if the junk was not at anchor, it equally is not contended on her behalf that, as her pleadings have been shaped, she can recover. The question then I have to decide is simply one of fact, whether the junk was at anchor or not, and there is a direct conflict t of testimony between the parties on the point.  It is not possible to reconcile the two sets of statements, and perjury must have been committed on one side or the other.

   I do not think it possible (as Mr. Hannen suggested) for the Swatow's witnesses to have made a mistake merely when they said that they saw the junk sailing.  If they had not seen the junk until they were quite close, then I could understand that they might have taken her as being under sail while in reality she might have been at anchor; but the distance they all put her at,  and make her travel, makes that explanation impossible.  I therefore do not think that there is any escape from the position that direct and deliberate perjury has been committed by one side or the other.

   In cases where there is so much conflicting evidence, the proper rule is to ascertain what is the principal fact upon which the case may be considered to hinge, and then to come to a satisfactory conclusion as to the testimony bearing on that fact. (The Singapore, L.R. I.P.C., at p. 380.) I consider such leading fact in this case to be the state of the tide at the time the collision occurred, and the state of the tide I think has been ascertained beyond reasonable doubt, by the evidence on both sides and particularly by that of the pilots and the captain of the Swatow.  On the morning in question the tide commenced to make between Black point and Kawjaw creek shortly after five o'clock, and the collision occurred, I take it as proved, sloe upon weight o'clock.  I think there cannot be the least doubt on that point; the Chinese don't attempt to fix the hour, but the people on board the steamer do; the captain entered in his log the time of starting, and we know how long it takes to get down there; and then we have the statements of the pilots as to the time they went down the river, and the distance they were ahead of the Swatow. 

   The Chinese also agree very nearly as to the interval of time.  If the the tide began  to make at the place of the collision shortly after five o'clock, and the collision occurred  about 8 o'clock, there must have been, say, two hours and a half of flood tide, and with two hours and a half of flood tide the Assessor assures me that any junk lying at anchor must have swung to the tide (and not headed S.W., as it is alleged this junk did at the time she was struck), and must thus have had her head down the river and her stern up.  I have asked the Assessor as to what effect the sails would have upon her in the way of keeping her stern down the river, and he says they would have made her swing all the sooner to leeward, and they could not have prevented her swinging to windward.  That is the Assessors distain ct opinion on this point.

   This being, then, the position of the junk, p- head down the river and her stern up the river - the Swatow comes down the river and (as is agreed on all hands) runs into her port quarter at an angle of forty degrees.  To do that the Swatow must have passed ahead of the junk, then turned round in front of the junk's bow, and gone up the river again - and that too in shoal water.  Of course this is not what the Chinese say, but it is what she must have done to inflect the damage as stated, if the tide was as jut is ascertained to have been, and if after a flood tide of two and a half hours a vessel must have fully swung by one bank or the other.

   Apart from what I have said, there are other reasons for deciding in favour of the defendant.  When there is a conflict of evidence, it is always necessary to look at the probabilities of the case.  The story of the streamer is perfectly probable, but there are three points in the junk's story that are very improbable, to say the very least.  The first is as to what she was not doing at the time of the collision.  She said she was not sailing.  I think it is very unlikely that with two hours and a half of flood tide this junk was not taking advantage of it to come up to Shanghai.  The Chinese are not a late people, and I do not think it likely that they would wait two hours and a half with a favourable tide doing nothing.  Another thing which struck k me as a great improbability was what the junk people said they did after the collision; they said they continued to haul up the anchor.  After being run into by a steamer I doubt whether junk people would have sufficient presence of mind or courage to go on unconcernedly and apparently without any stoppage, with the raising of the anchor.  In the excitement, confusion, and alarm of a collision, I doubt if even in English or any foreign ship we should see the men continue steadily at the manoeuvre they had commenced to perform.

   The third improbability is, what the junk people say the steamer did.   They say that while they were anchored at a certain place the steamer came down the river and ran into them. In answer to my questions they said they were two-thirds from the east bank and one-third from the west bank.  That is not the channel for steamers, the water there being shoal, and the Swatow must therefore have gone out of her usual course.  I cannot see any reason why the Swatow should leave her usual course and take a course as if for the express purpose of running into the junk.  But it is one of the things I am asked to believe, and I think it is a great improbability. I feel that these improbabilities, aorta from the consideration I first mentioned, would behave induced me not to believe the junkmen's account, but to give credence instead to the account of the steamer's waitresses, which, as I have said, is a perfectly probable and intelligible version of the occurrence.  For the reasons I have expressed I find for the defendant with costs.

   I have not alluded to the question of the discrepancies in the evidence, pearly because I think the grounds on which I have decoded the case are much too clear to require me to go into them.  I think too much reliance is often placed on discrepancies in evidence.  In most cases there are nearly always some discrepancies, and in collision cases more especially they must be looked for.  They may perhaps be explained by one man having a better opportunity than another for observation , - one man may be a more accurate observer than another, or his memory may be more trustworthy - and, again, discrepancies often arise from a witnesses saying something as a fact when he is not very sure about it, thinking it will help his side.  However, these discrepancies or apparent inconsistencies I do not propose to go into.  I rest the decision upon the grounds I have already given, as I think there I am resting on sure ground.

   Judgment was accordingly entered for the defendant with costs.

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