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Colonial Cases

The Tamsui and the Hermes, 1899

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The Tamsui and the Hermes

Arbitration, Shanghai
Hannen and Kleffel, 31 May 1899
Source: North China Herald, 5 June 1899


 

ARBITRATION.

Shanghai, 31st May.

Before Sir Nicholas J. Hannen, Arbitrator, and Captain Kleffel, Nautical Assessor.

THE "TAMSUI-HERMES" COLLISION.

   The following are the Judgment and Award in this arbitration.

   The Arbitrator in giving his decision said: - Happily in the present case there is no dispute as to the main facts under which the unfortunate collision between the Tamsui and Hermes occurred. The only point upon which there was any conflict between the parties was as to the state of the tide in the Gough Island reach of the river at the time. I may therefore say at once with regard to this that I am advised by the Assessor that there must have been at that time a decided, if slight, ebb tide running. I should add that from the evidence given before us I should have come to the same conclusion.

   The facts of the case not in dispute were these. On the 23rd of March of this year the Hermes was coming up to Shanghai and crossed the bar shortly after 12.30 p.m. She saw in the distance the smoke of the Tamsui and nearer to her a large Chinese lorcha which was tacking down the Gough Island reach. When the Hermes first saw the lorcha she was heading for the Pootung side; she tacked and came across to the Gough Island side of the channel. The Hermes according to her own account was at a distance of about 3 or 4 cables from the lorcha and she seems to have concluded that the lorcha would go about and cross towards the Pootung side, and that, therefore, the Hermes would be able to proceed by the Gough Island side of the channel, passing the lorcha on her port side.  She did not slacken speed at this point but continued to approach the lorcha at full speed.

   I am of opinion, and in that I am supported by the assessor, that the Hermes was not justified in assuming that the lorcha would certainly tack and go across to the Pootung side; the Hermes ought to have been prepared for the lorcha  getting in stays and ought to have done something either by slackening her speed or even stopping to enable her to be sure what the action of the lorcha was going to be. Instead of slackening her speed or stopping she went on and ported her helm; she thus came within, according to her own account, a cable or a cable and a half's length of the lorcha under her port helm, and when she discovered that the lorcha was not going to cross over to the Pootung side she had to starboard her helm to pass outside of her, instead of inside as originally intended.  In order to do this it seems to me that she must have starboarded her helm more than slightly. She now attempted by putting her helm hard a-starboard to pass round the lorcha, but, for some reason which has not been satisfactorily explained to us, the Hermes did not answer her helm but continued to turn a little to port. 

   Up to this time the Hermes had been going full speed ahead, and we are of opinion that she has thus committed a fault in that she did not slacken her speed to stop when she found herself approaching the lorcha and the Tamsui in so narrow a part of the river. When those on board the Hermes found that she was not answering her helm her engines were put at full speed astern, and the order was given to let go the starboard anchor. From the evidence it appears that there was no one standing by the anchors to let go should necessity arise. The chief officer no doubt did his best to execute promptly the order that was given,  but it is manifest that however promptly  he did so, standing as he was upon the deck, under the bridge, he would have been able to execute it more promptly had he been standing by the anchor. This then we consider a second and main fault committed by the Hermes.

   She did not in our opinion take necessary precautions before and at the time immediately preceding the collision. On the other hand we cannot find that the Tamsui acted in any but a proper and seamanlike manner throughout. When she thought there was some danger likely to arise she slacken her speed and stopped. It is true that when she saw the Hermes coming towards here in what must have been to her, as it was to those on board the latter, so unexpected a manner, and there was practically nothing to be done to avoid the collision, she took the step of going half-speed ahead when perhaps it might have been better that she should have remained with her engines stopped, but we consider that by the fault of the Hermes the Tamsui had been placed in such a position that the collision could only have been avoided, if at all, by extraordinary skill and nerve on the part of the officers of the Tamsui, and we think that under these circumstances if she took a step which afterwards not to have been the best under the circumstances, she cannot be held to blame. 

   We therefore think that the Hermes was solely and entirely to blame for this collision and that no blame attached to the Tamsui.

(Signed) Nicholas J. Hannan.

Approved.

(Signed) F. Kleffel.

The following is THE AWARD.

   Whereas by an agreement in writing dated the 19th day of April 1899 made between the owners of the Norwegian ship Hermes  and the owners of the cargo lately laden on board of her of the one part and the China Steam Navigation Company, Limited, the owners of the British ship Tamsui and the owners of the cargo lately laden on board of her of the other part, reciting that on the 23rd day of March 1899 there was a collision between the Hermes and the Tamsui whereby both ships were damaged, it was agreed to refer to me Nicholas John Hannen, Kt., Chief Justice of Her Britannic Majesty's Supreme Court for China and Japan, as sole Arbitrator assisted by a Nautical Assessor or Assessors to award and determine:

   [1.] - Whether the said Hermes on the one hand or the said Tamsui on the other hand was solely to blame for the said collision, and how; or whether both of them, the said Hermes and the said Tamsui were to blame for the said collision and loss and damage and how; or whether the same collision and the loss or damage was the result of inevitable accident.

   [2.] - By and to whom the cost of such reference ought to be paid.

   And whereas I, the said Arbitrator, having sat on the 19th day of April, and the 13th and 26th day of May 1899, with the assistance of Captain Kleffel of 12 Miller Road, Shanghai, the sole Nautical Assessor agreed upon by the parties, and having duly weighed and considered the several allegations of the said parties and the evidence and arguments brought before us, do hereby make and publish my award in writing of and concerning the matters above referred to in manner following, that is to say:

   I award and adjudge that the said ship Hermes was solely to blame for the said collision, she not having taken the necessary or any precautions to avoid a collision until too late, and not having had anyone stationed in such a position as to be able to let go an anchor immediately upon the order being given, and the Tamsui not having neglected to take any precautions she was bound to take - she having by the fault of the Hermes been  placed in such a position that the collision  could only have been avoided  if at all by extraordinary skill, nerve or exertion on her part.

   And I further award and adjudge that the owners of the Norwegian ship Hermes and the owners of the cargo lately laden on board of her do pay to the China Navigation Company, Limited, the owners of the British ship Tamsui and the owners of the cargo lately laden on board of her, the costs of this reference which I assess at the sum of Tls. Two Hundred (Tls. 200) and I further award and adjudge that the said owners of the steamship Hermes, and the owners of the cargo lately laden aboard of her do pay the costs of this award, which I assess at the sum of Tls. One Hundred (Tls. 100)  to me the said Nicholas John Hannen and as to Tls. Seventy-five (Tls. 75) to the said Captain Kleffel.

   In witness whereof I have hereunto set my hand this 31st day of May 1899.

(Signed) Nicholas J. Hannen

Signed and published the 31st day of May 1899 in the presence of Eustace H. Burrows, Registrar, H.B.M.'s Supreme Court, Shanghai.

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