Shanghai, 22nd September.
Before Gzoror Jameson Esq., Acting Chief Justice.
Tue Taxo Toc axp Lronrer Ca., Lo., {appellants and defendants) and Wano aI Hstex, owner of the junk Ho Chi Shun (respondent and plaintiff.)
This was an appeal by the Tuku Tug and Lighter Ca,, I.d., froma decision of H.B.M.'s Consul at Tientsin, condemning them in damages and costs for a collision between two of their-lighters the Linsi and the Guiding Star whilst in tow of the Heron, and the plaintiffs junk, which was at anchor in the Peiho river below Tongsu in March last. The case for appeal was heard on Beh inst., when judgment was reserved.
Mr. A. P. Stokes appeared for the appellants, but the respunsent, as on the former occasion, did nct appear, either personaly or by counsel. collision. not a question of red light or green light, but of no light at all. A vessel at anchor, or & fishing boat, is bound by the general rules of the sea to exhibit a light so as to afford to vessels whose duty it is to avoid her the means of doing sv." Similar language was held by Dr, Lushington in. the case of the His Lordship in delivering judgment Victoria (3 Robinson's Reports p. 54). Ad-said dressing the Trinity Masters, he says, This is an appeal from a decision of Her now coe to the iniportant consideration in Majesty's Court at Tientsin, given in a suit the ease, whether louking to the season of in which the plaintiffs; now respondents, the year, the state of- the night, and the claimed against the Taku Tug and Lighter locality, it was nut "obligatory, as' a matter Ca., for darninges done to their junk by a of reasonable precaution, to' have carried collision which happened in the 'Tientsin and exhibited an efficient light. If you river on the night of the lst March last, are of Gpinion that the carrying and The plaintiff' cise in the Court below exhibiting such light would have tended was that their junk was at anchor in the to prevent the collisim, I exnnot but river in a proper position, and was showing think it was a duty imposed on him a good light, that while so anchored the to do sv, and for this reason, that all defendants' vessel, " tug-boat called the persons are bound to take due and proper Heron, towing two lighters, ran into them Care to avoid an accident, and no man exe and caused te damage. justly complain of an accident that hap-'The defendants' case was that the junk pens to himself, if by reasonable and proper was anchored in the fairway, and was show-precaution he could have prevented it." ing no light, and by reason of that, the Whether there-1e we regard this case from night being very dark, the Heron while the point of view of the ordinary nmritime pursuing her usual course down river did rales, of of local custom, or of reasonable hot see the junk till too lite tw avoid the care and prudence, the result is the same, collision, and they claim that the collision i ament on the plaintiff's junk was wholly due to the failure of the ju ight exhibited, and if he had not to show a light. They also counter-claimed he can of complain in being held to blame, against the junk for damages to their the evidence have no hesitation in vessels, saying that Tam fied the junk had no The Judge in the Court below gave no light, As the ease otood in ihe lower finding on the question of lights, stating that Court the weight of testimony seems ty me 1 the conflict of evidence he was unable to to incline decidedly in favour of the de-come to any conclusion on the point, but he fendants, and this has been further confound the defendants to blame on the ground firmed by the additional evidence tendered that their vessels ran into the other, ud ring on appeal, I find therefore that he considered the mas must be held to biune in was pursuing " dangerous course in this respect, It is xls" alleged that the ceeding dows river with the ebb tide on a junk was improperly anchored in the fair. night so dark that he could not see the way, but it is necessary to give any junk until (in his own words) he was on express finding on that point, I shall ithe top of her. only remark tint being, as the evidence Against this decision the defendants shows she was, well out in the stream, it appealed, on the ground that the Court was all the more incumbent on her to slow below ought to have found on the evidence sufficient Jight to warn off approaching that the junk had no lights, and therefore vessels, lame. They also applied for and Tt remains however to be considered ned leave to adduce further evidence whether the tug bunt should not sise be on the henting of the appeal, and in pur-held to blue, because if she ig, the junk will suanice of that leave four more witnesses still be entitled to half damages, The Judge were examined. The plaintifis and res in the Court below has found that she was pondents were not represented. to blane on the ground, us Lunderstand it, The first point that calls for consideration that she was being navigated without question, Had this junk a light or due care and caution, On. the whole I not? This must necessarily have an imthink this must stand, 'The appellants portant bearing on the decision, for it have to show, not merely that the other Seems admitted all round that there was vessel was in fault, but also that by no some obligation on her to show n light. reasonable skill and' caution on their part The junk herself, by declaring that could the collision have been avoided. Now had & light, tacitly admira the obligation what is skill and ca ion depends upon and the evidence goes to show that it is circumstances, There is nu doubt that to the usual custom in the Tientsin River for tow a couple of heavy lighters with an ebb junks at anchor to show alight. There tide is not an ordinary act of navigation, is even some evidence to prove that this and does involve more than usual risk to is also a legal obligation, and that junk other vessels. The amount of caution, masters can be fined for non-observance of therefore, that would be reasonable in navi-T do not lay much stress on gutinga handy vessel like the Heron alone, I consider it sutticiently proved with the canmand over her movements, that it is the ordinary custom for vessels would not necessarily be sufficient when she at anchor to show a light, was encumbered with two lighters. Che tos soesenry, the. Che, purpoes a this eridanos of the point te ananky, for IF dose case to go into the question of the applica- not appear at what rate of speed the Heron tion of the general maritime law to mixed; was going, vor how dark the night really cases of this nature, which was put before' was, but if it is the fact that it was impos me by the learned Counsel for the appel- ible to see the junk until they were with lunts, but Imay remark in passing, that /15 or 20 yards of her, then I think one of the fundamental rules-of that law, there was want.of due caution in being arole which has always been enforced by. under way at all, having regard to the fact British Courts on vessels of all nationalities that they were in a narrow river where Seckiug redress before them, is this obliga- vestele ut anchor tion on vessels at anchor to show alight, met. (Zhe Victoria, 3 W. Reb. p. 49). On were frequently to be The rule is thus enunciated ina judgme..t of the other hand if the junk could have been the Privy Council in the Sazonia, Lush, Vol. Seen sooner the look-out must have been I, p. 422: The second rule which we, imperfect. consider affects this case is, that though the ' I therefure come to the conclusion that closes hauled vessel is not bound tu give both vessels must be held to blame, and way, she is nevertheless bound to show according to the usual rule in Admiralty, some proper and sufficient light in sufficient which by the Judicature Act is now appli time to enable the steamship or other vessel cable tu cases at Common Lay, exch will whose duty it is to give way, to avoid the bear hal€ the damage,
Text read from the printed page and cleaned; old type leaves the occasional error.