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Colonial Cases

The Glamorganshire v. the Clarissa B. Carver 1888

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The Glamorganshire v. the Clarissa B. Carver

Judicial Committe of the Privy Council

22 March 1888

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 the 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 was an appeal from The Glamorganshire v. the Clarissa B. Carver, 1886.

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