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Colonial Cases

The Glamorganshire v. the Clarissa B. Carver, 1886

[shipping, appeals]

The Glamorganshire v. the Clarissa B. Carver


Supreme Court for China and Japan
5 April 1886
Rennie CJ, 5 April 1886
Source: North China Herald, 7 April 1886

LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
IN ADMIRALTY.
Shanghai, 5th April, 1886
Before Sir R. T. Rennie. Kt., Chief Justice, R. A. Mowat, Assistant judge, and
Captain Donald, Master of the Br. Barque Kelverdale,
Captain Haslewood, Master of the Br. Steamship Deccan,
Assessors.
On Appeal from H.B.M.'s Court for Japan, at Kanagawa.
THE OWNERS OF THE BRITISH STEAMSHIP "GLAMORGANSHIRE" (WILLIAMS, MASTER), Defendants and Appellants,
v.
THE CAPTAIN, OWNERS AND CREW OF THE AMERICAN SHIP "CLARISSA B. CARVER," Plaintiffs and Respondents,
And
THE OWNERS OF THE BRITISH STEAMSHIP "GLAMORGANSHIRE" (Williams, Master) defendants and appellants,
v.
S. D. WARREN & Co., plaintiffs and respondents.
  There was also an appeal from the decision of the Judges of the Court for Japan in a cross suit brought by the owners of the Glamorganshire against the Captain, owners  and crew of the Clarissa B. Carver, the former here appearing as plaintiffs and appellants and the latter as defendants and respondents.
  These were three cases arising out of a collision between the s.s. Glamorganshire and the American ship Clarissa B. Carver, on the night of the 7th June, 1885, being in respect of damage to the ships and cargo, and the third suit being in respect of damages to cargo belonging to the plaintiffs.  The cases were all decided by Mr. Justice Hannen in H.B.M.'s Court for Japan against the owners of the Glamorganshire.
  The original petition of the owners, etc., of the Clarissa B. Carver alleged (1) that a good look-out was not kept on board he Glamorganshire; (2) that she did not keep out of the way of the Clarissa B. Carver; (3) that she did not slacken her speed or stop or reverse her engines prior to the collision; and (4) that she infringed articles 17, 18 and 2- of the regulations for preventing collisions at sea.  The defendants in their original answer, contended that the Clarissa B. Carver was solely to blame for the collision on the following grounds: (1) that the Clarissa B. Carver did not carry proper lights, or if she did they were not in a proper position and were not visible as by the Regulations for Preventing Accidents at Se provided; and (2) that the Clarissa B. Carver could by the exercise of proper care and precaution have avoided the collision.
  Mr. Justice Hannen having given judgment against the owners of the Glamorganshire on all these points, the owners of the latter appealed on the following grounds- (1) that the judgment improperly finds the lights of the Clarissa B. Carver to have been properly placed; 2) that the judgment improperly finds that the lights of the Clarissa B. Carver were unobscure, and of sufficient brilliancy to comply with the Regulations; (3) that the judgment improperly finds that the Clarissa B. Carver could not by the exercise of proper care have avoided a collision, and that if she could have she could not under the circumstances be held to blame for not Having done so; and (4) that the judgment improperly finds that the Glamorganshire did not keep a good look-out, and that this was the cause of the collision.
  Mr. H.S. Wilkinson and Mr. R. E. Wainewright appeared for the owners of the Glamorganshire, and Mr. W. V. Drummond for Messrs. S. D. Warren & Co. The Captain, owners and crew of the Clarissa B.  Carver were not represented, relying upon a long answer to the petition which they had filed, in which the evidence given in the court blow was reviewed at length.
  Mr. Wilkinson said the first question, common to both cases - in which Mr. Drummond appeared and that between the owners of the two vessels - was, who was responsible for the collision? To save the time of the Assessors, it had been agreed between counsel to argue this question first, and leave certain legal questions affecting the case of Warren & Co. v. The Glamorganshire till afterwards, as these questions would be for the decision of their Lordships alone.
  After half-an-hour's argument as to whether this course could be adopted, it was assented to.
  Mr. Wilkinson then proceeded to review at length the voluminous evidence sent up from the Court below, with the object of showing that due care and diligence had been exhibited by the Glamorganshire, and that the fault of the collision did not rest with her.
  The case was adjourned till 10 o'clock next morning.
North China Herald, 17 April 1886
[Not transcribed]
  We do not conceal from ourselves that if we hold that it was not incumbent upon the Carver to take any action to avoid the collision until after the Glamorganshire had come within half a mile of her, we shall thereby in effect be holding that the former vessel was justified in keeping her course until after the collision was in point of fact inevitable; and we have been rather reluctant so to hold.  We think however that as the Carver is charged with omitting to do something which she ought to have done, we can best dispose of the matter by applying to it the same tests as were applied in the case of the City of Antwerp and the Frederick, L.R., 2 P.C., 25.  There proof of three things was required viz., first, that it was clearly in the power of the vessel to have done the thing charged to have been omitted; second, that if   done it would in all probability have prevented he collision; and third, that it was such an act as would have occurred to any officer of competent skill and experience in command of the vessel. Testing the question in this way we think the answers given by the Nautical Assessors to the questions we put to them practically settle it in favour of the Carver; and we may add that we consider that the case of the Frederick William, L.R.,. 2 App. Cases, 572, is a strong authority to support us in holding the Carver free from blame n not trying actively to get out of the way of the Glamorganshire under the circumstances in which she found herself placed by the default of the latter vessel.
  The appeal in the original suit must therefore be dismissed with costs.
.  .  .  
Mr. Drummond remarked that as regarded the case of S. D. Warren & Co. v. the Glamorganshire, this judgment decided one point in that case, viz., the question as to who was to blame for the collision.  There were, however, other points at issue in that case, and it would be necessary to fix a day for their hearing.
  It was intimated that a day would be fixed for the further hearing of that case.

 

Source: North China Herald, 28 May 1886

LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 25th May 1886
ON APPEAL FROM H.B.M.'s COURT IN JAPAN.
Before Sir Richard T. Rennie, Kt., Chief Justice, and G. Jamieson, Esq., Acting Assistant Judge.
S. D. WARREN & Co. v. THE "GLAMORGANSHIRE."
  The hearing of this case was resumed today.
  Mr. Drummond appeared for the plaintiffs and respondents, and Mr. Wilkinson and Mr. Wainewright for the defendants and appellants.
  This suit, it will be remembered, was one for damages caused by the collision between the s.s. Glamorganshire and [British] ship Clarissa B. Carver, the plaintiffs claiming as owners of cargo in the latter vessel. The Court had already decided that the Glamorganshire was to blame for the collision, and counsel now further addressed themselves to the question of the plaintiff's right to sue.
  Mr. Drummond said the evidence of Arthur Gultzow in the record, being un-contradicted, was sufficient proof that the present plaintiffs, Warren & Co., were the real owners of the goods in question, and therefore entitled to sue for their value.  There was no proof that Messrs. Baring Bros. had lent any money to S. D. Warren & Co. upon the security of these goods, or had any claim upon them; and there was nothing to show that either the Bank, or Messrs. Baring Bros., or the insurers, had any better title to the goods, or their value, than Messrs. Warren & Co. The only thing to be done at present was to make the usual decree directing the registrar to assess the damages, and if the defendants wished to contest the right of the plaintiffs to receive the amount so found, it would be open to them to do so before the registrar, by cross-examination of the plaintiffs' witnesses, and by producing witnesses or other evidence on their own behalf.  At present there was no foundation for such a contest, and arguments were purely speculative.  If they would however show and grounds for reasonable doubt on the part of the court, a special order could be made such as had been already offered by Mr. Justice Hannen in the Court below. The defendants and appellants had apparently not accepted this offer, and it might therefore be assumed that it was not protection against future claims by others that they wanted, but to avoid liability altogether by getting the suit dismissed on a technical ground. The plaintiffs had clearly proved that they were the original owners of the goods lost. The defendants argued that they (the plaintiffs) had so divested themselves of their ownership that they were not competent to bring this suit.
  The evidence, which was all the court had to go upon, was certainly quite insufficient to support the defendants' argument.  The cases of Simpson v. Thompson, L.R. 3 App. p. 279, and Dickenson v. Jardine, L. R. 3 C.P. 644, showed that even if he underwriters had paid for a total loss, they could only sue in the name of the insured, so that the defendants need not be under any apprehension of a suit hereafter by the Insurance Company.  That it was unnecessary to prove ownership more fully than had been done at the hearing, and that it was sufficient if this as proved satisfactorily before the Registrar, was shown by the cases of the Minna, L.R. 2 A. and E. p. 97; and the John Bellamy, L.R. 3 A. and E. p. 129.  The case of the Euxine, L.R. 4 P.C. p. 8, showed that upon a point such as this the Court would at the utmost only grant a stay of proceedings and would never either nonsuit the plaintiffs or dismiss the petition. If any real ground for doubt existed as to the right of the plaintiffs to recover in this suit, justice would be completely met by making such an order as was made in the case of the Minna, before cited; and the case of the Ilos, Swabey, p. 100, but no such grounds for doubt could be shown on the present record.  The only apparent authority for the defendants' contention were phrases used in the judgment given in the case of Barber v. Meyerstein, 4 E. and I. App. p. 317, which at first sight seemed to be very wide and uncompromising; but when the analysis of this case was read in the judgment in the subsequent case of Lewell v. Bardick., L.R. 10 App. 74, it would be seen that these phrases had no application to the present case. There was therefore no reason, either in fact or in law, why the usual decree should not be made directing the damages to be assessed and the amount paid to the plaintiffs.
  Mr. Wilkinson said that Mr. Drummond had not touched the argument of Mr. Wainewright, that, in order to recover, the plaintiff must be entitled to possession of the goods, and that it was not sufficient that he should merely have a property in them.  Referring to the cases decided in the court of Admiralty, where objection had been taken to the title of the plaintiff to sue, he said that the cargo of the Ilos (Swabey, 100), which had been decided in 1856, had on the point contended for in this case (by defendants) been overruled by the case of the John Bellamy (L.R. 3 Ad. & E. 129), decided in 1870.  In both of these cases the objection had only been taken after the decree had been made, but while in the former case the court directed the damages to be ascertained and paid into Court, leaving it to the plaintiff to prove his title to the money afterwards, in the latter case it decided that the plaintiff could not proceed until he had proved his title.  Referring to the Minna (L.R. 2 Ad, & E. 97), he said that in that case the defendant wished to have more than he would be entitled to in a Court of Common Law, but the Court decided that as the plaintiff would be entitled to proceed in Common Law he would be entitled to proceed in Admiralty; that case did not decide that the plaintiff had any greater right in Admiralty than in Common Law.  He next cited the case of The Wasp (L.R. 1 Ad. and E. 367), where it was assumed throughout that the pleadings should be the same as at Common aw, and he contended that this view was confirmed by the case of the Rory, decided in 1882.  Mr. Wilkinson then contended that at Common Law, before the passing of the Judicature Act, the plaintiff in order to recover must show not only that he had property in the goods, but also a right of possession [Bullen and Leake]. The Judicature Acts did not, in this respect, give the Plaintiff a greater right to sue than he had before in a Common Law Court, and he urged that under the Judicature Acts the procedure in Admiralty had been assimilated to that at Common Law.
  Referring to the case of Burdick v. Sewell (10 App. Cases, 74), cited by Mr. Drummond, he said that granting it had modified the dicta in Barber v. Meyerstein (L.R. 4 E. and I. p. 317), yet it was re-affirmed that the pledgee of goods had the right of possession.  The pledgee of goods to whom the Bill of lading for the goods had been endorsed as security had the right of possession to the goods transferred to him under the Bill of Lading.  In this case either the Bank or Baring Brothers, or both, were pledgees of the goods, as the evidence showed that $22,000 had been advanced upon them by either the one or the other, or both. If, as the evidence stated, the Bill of Lading was endorsed to the Bank, and if the Bank had advanced the $22,000, or part of it, the Bank was entitled to possession as against the plaintiff, and if Baring Bros.  had advanced any part of it, they too were entitled to possession as against the plaintiff, however Baring Bros. and the Bank might have been entitled as between themselves.  As regards Baring Bros., the cases cited by Mr. Drummond had no application, ass their title to the goods was as consignees and not as endorsees of the Bill of Lading, and as consignees they were prima facie the persons entitled to sue.  As consignees and pledgees they had an absolute title to sue. On these grounds therefore he asked their Lordships that the order of the court below refusing a nonsuit should be reversed, and if their Lordships should be against him on this point he asked that directions should be given that the case should not proceed further until the plaintiffs had proved their title to the goods in question.
  Their Lordships reserved judgment.


Source: North China Herald, 4 June 1886


LAW REPORTS.
IN H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 31st May, 1886
ON APPEAL FROM H.B.M.'s COURT IN JAPAN.
Before Sir Richard T. Rennie, Kt., Chief Justice, and G. Jamieson, Esq., Acting Assistant Judge.
S. D. WARREN & Co. v. THE OWNERS OF THE "GLAMORGANSHIRE."
  The Chief Justice delivered judgment as follows:-
  This is an appeal from a decree of the Court for Japan under which the plaintiffs are to recover from the defendants such damages as shall be subsequently ascertained on the usual reference, together with costs to be taxed.
  The appellants set forth their dissatisfaction with the judgment of the Court below upon six grounds.  The appellants, however, having agreed that some of those grounds should be, so far as the court is concerned, dealt with and concluded by the judgment in the case of Clarissa B. Carver and Glamorganshire, which judgment wholly disposed of and decided them in favour of the Carver, and consequently in favour of the present respondents, there is no occasion for us now to go over the same grounds.
 We have then only to deal with the first and second grounds of appeal, which are as follows:-
That the respondents have not submitted to the jurisdiction of this Court as by the China and Japan Order in Council, 1881, Article 47, is required.
That the judgment improperly finds that the respondents have proved their title to recover damages from the appellants.
  With regard to the first ground we intimated on the first day of the hearing our decided opinion that the matter of submission to the jurisdiction was sufficiently and properly dealt with by the Assistant judge of the court below, on summons, and that no steps having been taken in the Court below to have this order, made by the Assistant judge on that summons set aside or rescinded, no appeal to this Court can be sustained on the point. To this opinion we adhere, and it seems unnecessary to hold any more so far as that ground of appeal is concerned.
  It remains for us now to consider whether the second ground of appeal has been established or not.  Before deciding this question we thought it necessary to communicate with the learned judge of the court below and to ask him to inform us of his reasons for refusing to nonsuit the plaintiffs (which is the second point on which the appellants contend the Court below was wrong) when application was made to him on that behalf at the hearing in the Court below and at an adjourned sitting specially held for that purpose.  As a matter of fact an omission had been made in the Record of Appeal.  No minute had been sent to us of the arguments of counsel on the point, and no reasons for refusing the application had been sent on.
  I answer to our communication the learned judge had transmitted to us the omitted minutes of the arguments of counsel, and states, as his grounds for refusing the nonsuit, that there seemed to him to be sufficient prima facie evidence that the plaintiffs were the real owners of the goods that he was of opinion that the proper time to go into the question of title was not upon the trial of the question as to who was to blame for the collision, but before the Registrar on the trial of the question what amount of damage had accrued to the plaintiffs - that if grave doubts appeared as to the right of the plaintiffs to sue, the defendants might have applied for a stay of proceedings - and that even if the defendants might have been entitled to some further assurance that the plaintiffs were the proper persons to sue, this did not entitle them (the defendants) to a nonsuit, though it might possibly have entitled them to some such order as was made in the case of the Minna, L.R. 2 A. and E., 97, or the Ilos, Swabey, 100, and the learned Judge added that he actually did at the heating of the suit express his willingness to make such an order.
  The learned counsel for the appellants contended that according to the evidence given in the Court below it was proved that the title to the goofs was not in the plaintiffs, but in somebody else, and that the plaintiffs could not have brought an action for the detention of the gods, because they the plaintiffs) are not named in the bill of lading and that the consignees or endorsees of the bills of lading, i.e., either Baring Bros. & Co., or the Hongkong and Shanghai Bank, were the proper persons, if any, to maintain the suit.
  We do not think it necessary to deal with these arguments in detail, because we are of opinion that they are used upon an erroneous view of the position. So far from the evidence given in the Court below proving a prima facie title to lie in the consignees or endorsees of certain supposed bills of lading for the goods in question, we agree entirely with the learned judge of the Court below in thinking that the evidence proved a prima facie title to lie in the plaintiffs.  Assuming as the learned Judge has assumed, and as we think he was right in assuming, that the evidence of the witness Gultzow went to prove that the plaintiffs, Warren & Co., were the real owners of the goods, we do not see that the ownership is disproved by the subsequent statements of the same witness, on cross-examination, to the effect that the goods had been shipped under bills of lading deliverable to Baring Bros., and that these bills of lading had been endorsed over to the Hongkong and Shanghai Bank.  The bills of lading should speak for themselves; but they were not produced at the hearing, nor does it appear that they were called for by the defendants.  No suggestion was made in the court below or in this Court that they were not in existence, or non-producible, and the secondary evidence given as to their contents by the witness Gutzlow on cross-examination certainly cannot be taken as conclusive, or as disproving the title of the plaintiffs to maintain their action; while we may observe that the account he gives of the documents being endorsed over to a Bank after the goods had been made deliverable to Baring Bros. appears unlikely to be correct.
  Under these circumstances, and without entering into the question of what the effect of the supposed bills of lading, if produced and proved, might have been, we think the learned Judge was quite justified in refusing to nonsuit the plaintiffs.  We agree also with him in thinking that if the evidence as to the bills of lading did actually give rise to grave doubts with regard to the plaintiffs' title, and the defendants desired hat they should be produced in Court before judgment, they should have applied for a stay of proceedings, as was done in the case of the Euxine, or perhaps have asked for an adjournment of the hearing.  As, however, they adopted neither of these courses, but held to their claim for a nonsuit only, we think that a conditional order, of the kind that was made in the case of the Minna, was the most that the learned judge could reasonably have offered them, and as it appears that he actually did offer this, we think that the present appeal was quite unnecessary; nevertheless, as counsel for the appellants now asks for an additional order, and counsel for the respondents offer no objection to such an order being made, the decree of the Court below will be supplemented to that extent, and we consequently direct that the money awarded by the Registrar as compensation for the loss of the gods in question be not paid until it shall have been satisfactorily shown that the payment will release the owners of the Glamorganshire from all claims on behalf of any consignees or endorsees of the bills of lading.
The appellants must pay the costs of the appeal.

 

Judicial Committee of the Privy Council
Source: North China Herald, 26 May 1888

IN THE PRIVY COUNCIL.
On appeal from Her Britannic Majesty's Supreme Court for China and Japan at Shanghai.
Whitehall, Thursday, 22nd March, 1888.
BETWEEN THE OWNERS OF S.S. GLAMORGANSHIRE, Appellants, vs. THE OWNERS OF S. CLARISSA B. CARVER, Respondents,
And
THE OWNERS OF S.S. GLAMORGANSHIRE, Appellants, vs. S. D. WARREN & CO., Respondents.
Sir Walter Phillimore and Mr. Stokes for appellants, Mr. Myburgh, Q.C., and Mr. Melsheimer for respondents.
JUDGMENT.
  In this case two actions have been brought in Her Majesty's Court of Japan against the ship Glamorganshire and her owners.  They have been brought in that Court sitting as an Admiralty Court; one being brought by the owners of h American ship Clarissa B. Carver for damages done to that ship, and the other by S. D. Warren & C0., who say that they are the owners of the cargo on board he Clarissa B. Carver, for damage done to the cargo.
  The contention is that the Glamorganshire is solely in fault of the collision that took place between the two ships.  The Glamorganshire contends either that she was not in fault, or that the Clarissa B. Carver contributed to the collision. By arrangement between the parties the same evidence has been taken in both actions, and though here are separate judgments given in the actions, they were in effect tried together.  The same arrangement has been pursued before their Lordships.  The Appeals have been consolidated, and the same counsel appeared for the respondents in each of the two cases, and their Lordships are dealing with the cases uno flatu.
  The Court of Japan decided both the actions in favour of the plaintiffs.  The defendants, the owners of the Glamorganshire, appealed to the Supreme Court for China and Japan and that Court affirmed both of the Decrees, the Decree in the hip case absolutely, and the Decree in the Cargo case with a modification which will be mentioned presently.
  To take first the ship case.  There are many questions raised in the actions as to the conduct and handling of the ships which have been settled by the concurrent decisions of the two Courts, in a way which the Counsel for the Glamorganshire have felt that thy could not dispute, having regard to the rule which prevails in his tribunal respecting the effect of concurrent decisions on pure questions of fact. But there is one question on which it is argued that this tribunal should review the decisions of the courts below though they are in effect concurrent.  It is said there were some variations of ground in the courts below, and that the matter is open to their Lordships now.  That point amounts to this - that the ship Clarissa B. Carver committed a breach of the Maritime Regulations, and having committed that breach, it falls within the principle which we laid down in the case of the Fanny M. Carvill, that where there was a breach, the presumption of culpability on the part of the vessel committing the breach can only be met by proof that the disaster in question could not by any possibility be attributed to the breach of the Regulations. But then in order to attract hat principle and get the benefit of it there must first be shewn that there was in fact a breach of the Regulations, and that must be proved like any other fact in the case.  It is not sufficient to say that from the facts proved there might possibly have been some breach of the Regulations.  Proof must be given leading up to the conclusion that there was a breach, and then if that breach could possibly have led to the disaster, the ship must be held to blame in the principle laid down in the Fanny. B. Carvill.
  Now the Regulation which is said to be infringed is Article 4(b).  It provides that a steamship shall carry: "On the starboard side a Green light so constructed as to shew a uniform and unbroken light over an arc of the horizon of ten points of the compass; so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least 2 miles." By Article 5 that regulation is extended to sailing vessels.
  It is said that the Regulation has been infringed in two particulars.  First, that the light was too dim - that it was not "of such a character as to be visible on a dark night with a clear atmosphere, at a distance of at least 2 miles."  Upon that point both Courts have elaborately examined the evidence, and they have come to the conclusion that the witnesses on board the Clarissa B. Carver, who all spoke one way and who gave clear testimony that there was a bright light which they calculated would be visible at 3 miles, were to be believed, and that there was no infringement of the Regulations upon that point.  Their Lordships think it necessary to say nothing further upon that point, excepting that as far as the evidence has been brought before them thy believe that the Courts came to a right conclusion.
  But then another point was made.  It is said first that the light was fixed in the rigging, and that his is an improper place to fix the light.  The answer to that is that the Regulation does not say it shall not be fixed in the rigging, and so far from its being contrary to the Regulation, it is a common practice and in American ships appears to be a very common practice - it would seem almost to be the common practice.
  Then it is said that it was so fixed that the foresail or some portion of the sail, would interfere so as to prevent the lamp showing a uniform and unbroken light over an arc of the horizon of 10 points of the compass.  It is important in the first place to see how that was dealt with in the Courts below.  Before the Court of Japan the same point was raised and the Judge dealt with it in this way on page 58 line 37: - "It is said the clew of the foresail or the foresail itself may have obscured it" - that is the lamp - "and in support of this a number of witnesses were called by the steamer to show what the usual heights of the claw and foot of the foresail above the rail of a ship are.  Against this evidence of the usual height is brought the positive testimony of the crew of the Clarissa B. Carver, who say that the clew was about 6 feet, and he foot of the sail 8 o 9 feet above the rail."  Then he holds that the witnesses are to be believed.  It is quite true that in giving his reasons why they should be believed, an inaccurate reference is made to the evidence of two witnesses who have spoken as to the height of the clews of foresails on other ships, but in their Lordships' Judgment that inaccuracy is immaterial to the conclusion to be drawn; and it is certainly some proof of the satisfactory character of the Judgment in the court in Japan, that the point as to the clew of the foresail was abandoned in the Court of Appeal.  The Supreme Court in their Judgment upon that Appeal make these remarks:- "Then as to the Clarissa B. Carver's green light having been obscured in some way or other, we remark that the learned counsel for the Appellants do not even attempt to uphold the theory manifested in the Court below, viz., hat the light in question might have been obscured by the clew, or foot of the Carver's foresail, but propounded to us an entirely different explanation, vi., that the light had been, and probably was, obscured by a single or double rope known to sailors as the 'lee foretack.' We have taken the opinion of our Nautical Assessors upon the point, and we are advised by them that it is in the highest degree impossible that the 'lee foretack' could in any way have obscured the light from the view of those on board the Glamorganshire.  It appears to us to be unnecessary to say anything further on this part of the case."
  Now the theory which was put forward in the Court of Japan and abandoned in the Supreme Court of China and Japan, is put forward again, and it certainly comes here under some disadvantageous circumstances, but their Lordships have paid careful attention to the evidence and propose to decide the case according to their view of the evidence.
  There is nothing in the diagrams which are put forward, and nothing in the evidence as to the construction of the ship to shew that there is any necessary interference with the light by the clew of the foresail, or even to show that there is any strong probability that the light would be interfered with by the clew of the foresail.  In point of fact the argument rather turned upon some exceptional circumstances.  For instance the yard being tilted; the sail bulging out in a particular way which would possibly create an interference by the  sail with the light; but there is nothing in that portion of the evidence which induces their Lordships to think that there was any breach of the Regulation.  The only thing suggested is that there must have been some obscuration, because the people on board the Glamorganshire did not see the light.  But from the direction in which the ships were approaching it seems to their lordships that even if under any circumstances the clew of he foresail could interfere with the range of the light, it could not have so interfered as to intercept the light from the eyes of the persons who were on board the Glamorganshire, and in coming to that conclusion they have consulted the gentlemen who assist them as Nautical Assessors, and they are advised that according to the evidence that would be the case.
  Then going to what the witnesses say, all the principal people on board the Clarissa B. Carver have been examined, and the effect of the evidence is this: that the lights were fixed from 3 to 4 ft. above the ail of the ship. Upon that point the Master of the ship was examined, the pilot, the first mate, the carpenter, three A.B.s and a cabin boy; and some say 3 ft. and others 3 ½ ft. and 4 ft.  A diver was employed by the Glamorganshire.  He went down and according to his measurement the screen in which the lamp is fixed was 4 ft. above the rail. Then comes the question what is the height of the clew above the rail, for if the height of the clew is such as to give the lamp free play below the clew, it is an utter impossibility that the clew should have interfered with the range of the light.  As to the height of the clew, the first mate was examined, and the carpenter was examined, and the 2nd mate who was also the man on watch, and who was sent for by the captain about the time of the collision - a little before - to see whether the light was visible and burning brightly.  He found that it was so, and these persons tell us that the clew of the foresail was from 5 ½ to 6 ft. above the rail.  If that be so, there was space for the light to lay between the very lowest elevation of the clew of the foresail and the point above the rail at which it was fixed.  Therefore their Lordships come to this conclusion that even if it could be held that an occasional obscuration under certain circumstances of manoevering the ship, moving the sails by the clew under these  circumstances was a breach of the Regulation, the evidence leads them here to think that there never would be any interference at all by the sail with the lamp; hat therefore there was no breach of the Regulation, that the Clarissa B. Carver is not to be held to blame in any way, and that the judgment appealed from is a right judgment.
  Now, with respect to the cargo action.  The objection there is that the plaintiffs have not proved their title to maintain the action.  The evidence given of their title was that pf Gulzow, who was the clerk or some person in the employ of Messrs. Paul Heinemann & Co.  His evidence is that the cargo was shipped by Messrs. Heinemann & Co., and shipped by order of the plaintiffs; that it was deliverable to Baring's; that 22,000 dollars had been borrowed - he does not say by whom - probably Messrs. Heinemann - of the Hongkong Bank and that the bill of lading was endorsed over to the Bank.  No doubt that does no show very clear title to the money in the plaintiffs, but it does show that they had an interest in the cargo, and their Lordships hold that that interest is sufficient to enable them to maintain the suit.,
  The Judge of the Court of Japan passed a decree that the plaintiffs do recover from the defendants damages to be ascertained on the usual reference to the Registrar. At the same time he offered to the defendants a modification of the decree to the effect that the money should not be paid until the various claims against it were ascertained.  Apparently they refused that modification, and they appealed to the Supreme Court to get the decree reversed.  The Supreme Court affirmed the decree on the merits, but at the request of the appellants appended this modification - "That the money which may be awarded under the reference herein be not paid to the plaintiffs, until it shall have been satisfactorily established that the payment will release the owners of the s.s. Glamorganshire from all claims on behalf of any consignees or endorsees of the bill of lading."
  That seems to their Lordships to exactly meet the justice of the case.  They think that the plaintiffs have interest to maintain the suit to recover the money for the benefit of these persons who, on the enquiry, are proved to be entitled to it, and under circumstances in which the money will not be laid out until the owners of the Glamorganshire are completely freed from all claims.
  The result is that in their lordships' opinion the appeals fail and should be dismissed, and the decrees affirmed, and they will humbly advise her Majesty to that effect.  The Appellants must pay the costs of the appeals.

 

Note

 

This decision was appealed to the Judicial Committee of the Privy Council. See The Glamorganshire v. the Clarissa B. Carver, 1888.

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