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PETITIONER: THE ASIATIC STEAM NAVIGATION CO., LTD.

       Vs.

RESPONDENT: SUB-LT.  ARABINDA CHAKRAVARTI

DATE OF JUDGMENT: 12/01/1959

BENCH:

ACT: Shipping-Collision-Negligence--" Standing on " vessel-Giving way " vessel-Rights an duties-Nautical assessors-Advice  not binding on Court-Merchant Shipping Act, 1894 (57 & 58  Vict. c. 60) Regulations of 1910, Arts. 21, 23, 25, 27, 29.

HEADNOTE: On  December  13, 1940, in the afternoon, a cargo  ship,  N, left Madras harbour bound for Calcutta heading for the  open sea.  She was being navigated in a swept channel outside the 980 harbour our and was on her proper, namely the starboard side of  the channel.  At that time a patrol ship, K, was  on  an opposite  course making for Madras harbour and  entered  the channel  at  about  6-25 p. m. At 6-30 p. m.  N  decided  to overtake  K by going port on an erroneous assumption that  K was  going  in the same direction as N and was  not  an  on- coming  ship.   By about 6-45 P.m. when K sighted N  on  the port  bow the two ships were opposite each other near  about the  mid-line of the channel, the distance between  the  two being then a little more than a mile.  N continued her  port course and went over the mid-line into the wrong side of the channel and at about 6-48 P. m. the distance between the two ships was less than a mile.  K noticed at that moment that N was  converging on her and accordingly in order to  avoid  a collision  K turned to hard port and gave a signal  to  that effect.   N, however, took starboard action to get  back  to the  right side of the channel and get out of the way of  K. At  about 6-49 P. m. finding that a collision  was  imminent the commander of N ordered full speed astern, but it was too late and a collision took place at about 6-5I P. m. The appellant, the owner of N, instituted a suit for damages against  the  respondent,  who was one of  the  officers  in charge  of and responsible for the navigation of K,  on  the plea  that  the  collision  was  caused  by  the   negligent navigation  of K. The trial judge who had been  assisted  by nautical advisers, held that K wrongly altered her course at the moment when she did, and if any step had to be taken she should have altered not to port but to starboard, and if any other action was necessary, she should have put her  engines full  speed astern.  On appeal, the High Court,  which  also had  the assistance of two assessors, reversed the  findings of the trial court and dismissed the suit.  On appeal to the Supreme  Court, the appellant contended that K  should  have anticipated that sooner or later N would correct her mistake and go to the starboard side of the channel and,  therefore, as the " standing on" vessel, K should have kept her  course and  speed  as  required by Art. 21 Of  the  Regulations  of 1910,  made under the Merchant Shipping Act, 1894, and  that

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if she had done so, there would have been no collision.   As in  the lower courts, this Court also had the assistance  of two assessors. Held, that K was justified in taking port action at 6-48  p. m. when a collision seemed imminent, in view of Arts. 27 and 29  of  the  Regulations under which  when  a  vessel  finds herself  so close to another vessel that a collision  cannot be  avoided by the action of the "giving way" vessel  alone, she  must  also take such action as will best aid  to  avert collision. Held, further, that it was an act of negligence on the  part of N to take hard starboard action, instead of following the provisions  of  Art. 23, as the " giving way  "  vessel,  by slackening  the speed of or reversing N between 6-45  p.  m. and 6-48 p. m. "The  Tioga  ", (1945) 78 LI.  L. Rep. 1 and  "  The  Empire Brent ", (1948) 81 LI.  L. Rep. 306, distinguished.                      981 The  function of nautical assessors is to advise  the  court upon  nautical matters but the decision of the  court  rests entirely with the court and even in purely nautical  matters the  court  is  I  not bound to follow  the  advice  of  the assessors,  but on questions of nautical science  and  skill great attention must be paid to the opinion of the assessors since  they  are  the only source of  information  on  these points and some reason must be given for disregarding them. The  assessors  in an appeal court are not  substituted  for those consulted in the trial court ; they are additional  to them;  and  if  one  adviser  or  two  advisers  are  to  be preferred,  it is because in the judgment of the  court  the advice given is such as, in itself, is the more acceptable. The relevant articles of the Regulations of 1910, made under the  Merchant  Shipping  Act,  1894,  are  set  out  in  the judgment.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 229 of 1954. Appeal from the judgment and decree dated February 28, 1952, of  the Bombay High Court in Appeal No. 34 of 1952,  arising out  of the judgment and decree dated February 5,  1951,  of the said High Court in Admiralty Suit No. 1 of 1943. S.   C. Isaacs, P. N. Bhagwati, S. N. Mukherjee and B. N. Ghosh, for the appellants. E.   E.  Jhirad  and T.  M. Sen, for the  respondent. 1959.  January 12.  The Judgment of the Court was  delivered by S.K. DAS, J.-This appeal on a certificate given by the  High Court  of  Judicature at Bombay is from the  decision  of  a Division  Bench of the said High Court in Appeal No.  34  of 1951,  dated February 27 and 28, 1952, by which it  reversed the  decision  of a single Judge of the said High  Court  in Admiralty Suit No. 1 of 1943 dated August 8, 1950. The  appellant, Asiatic Steam Navigation Company Ltd., is  a company   incorporated  in  the  United  Kingdom  with   its registered  office in London and has an office in  Calcutta. The  respondent is ex-Sub-Lieutenant  Arabinda  Chakravarti, who at all material times was a commissioned officer in  the then Royal Indian Navy with its headquarters at Bombay.  The action which the appellant brought arose out of a  collision in 982 a  swept  channel,  a little  distance  outside  the  Madras harbour,  on December 13, 1940, at about 6-51 p.m.  The  two

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ships  concerned in the collision were the cargo vessel,  S. S. Nizam of 5,322 gross tons and H. M. S. Kalawati, a patrol ship   of  1,185  tons.   For  the  sake  of   brevity   and convenience,  these two vessels will be referred to in  this judgment as the Nizam and Kalawati.  At all material  times, the  appellant  owned the Nizam and the respondent,  it  was stated, was one of the officers in charge of and responsible for the navigation of the Kalawati . One F. C. H. Mason  was the  Chief Officer of the Nizam and the Master  was  Malcolm John  McLure.  Henry Lee was the Commander of  the  Kalawati and  Arabinda Chakravarti, as stated above, was one  of  the officers in charge of and responsible for the navigation  of the Kalawati at the relevant time. The  case set out by the appellant in the plaint  was  this. On December 13, 1940, in the afternoon the Nizam, which  was then under charter to the Ministry of Shipping, left  Madras harbour  bound for Calcutta carrying a cargo.  She was  then tight,  staunch,  strong, well manned and in  every  respect sound  and  fit.   A few minutes after 6-45  p.m.  when  the weather was fine, clear but cloudy, the moon full, the  wind moderate, the sea calm and the set of the tide from north to south,  the  Nizam was being navigated in  a  swept  channel outside   the  Madras  harbour.   The  swept   channel   wag approximately about one mile wide and seventeen miles  long. The Nizam was heading for the open sea on her proper  course to  Calcutta  and  was  being  navigated  in  a  proper  and seamanlike  manner  and  was  on  her  proper,  namely   the starboard  side  of  the channel.  The Kalawati  was  on  an opposite course making for Madras harbour.  The Nizam having the  Kalawati  about one point on her  starboard  bow  star- boarded with the result that the two vessels were about  one mile  apart on courses which would result in  their  passing from  -port  to port with a distance of about  half  a  mile between  them.  At that time, the Kalawati made a " light  " signal  to  the Nizam; the signal was not  legible  and  the Nizam sent a signal 983 which asked for a repetition of the signal of the  Kalawati. The  Nizam  continued hard to starboard,  but  the  Kalawuti altered course to port with the result that the Kalawati was converging on the course of the Nizam.  The Nizam  continued to  go  to starboard and the Kalawati to  port;  thereafter, when  a  collision seemed very imminent, the Nizam  was  put full speed astern, but the Kalawati was navigated across the bows  of  the Nizam and the result was  that  the  starboard quarter of the Kalawati came into collision with the bows of the Nizam.  The Kalawati then pivoted round the bows of  the Nizam and again came into collision with the latter.   After alleging  the facts stated above, the appellant  pleaded  in the  plaint that the collision was caused by  the  negligent navigation of the Kalawati and the following particulars  of that negligence were given: (a) alteration of the Kalawati’s course  to  port so as to take her across the  bows  of  the Nizam;  (b) failure of the Kalawati to stop or to go  astern and/or  to put her helm hard a-starboard when there was  yet time  for her to do so and avoid a collision; (c) in  breach of  the Regulations for the Prevention of Collisions at  Sea the Kalawati failed to keep to her proper side, namely,  the starboard  side of the channel, when it was her duty  to  do so,  and further the Kalawati failed to keep out of the  way of the Nizam when it was her duty to do so and (d) a  proper look-out was not kept on board the Kalawati. The total claim which the appellant preferred forthe damage sustained was  a sum  of Rs. 88,000 and odd and particlars of the claim  were set out in sch.  B of the plaint.

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In his written statement the respondent denied any liability for  the  damage sustained by the Nizam.  The  case  of  the respondent  as set out in his written statement was, to  put it  briefly, this.  The respondent said that at  about  6-45 p.m.  on December 13, 1940, he was the officer on watch  and the Kalawati was steering a course north 800 west keeping to the  Kalawati’s proper side of the channel.  The  Nizam  was sighted  at about that time, about 20’ on the port side  and about 2 1/2 miles away, heading for the open sea and 984 steering  eastwards  and  running a  parallel  and  opposite course.   Due to certain wartime regulations, the lights  of both the vessels were blacked out.  According to the courses which  the  Nizam and the Kalawati were then  pursuing  they would  have  passed each other clear port to  port  and  the respondent  signalled  to the Nizam with  a  portable  Aldis Lamp,  and asked for her identity.  The Nizam  replied  with one  long  flash indicating that she was  ready  to  receive signals  from the Kalawati.  As the respondent was about  to continue  signalling, he noticed that the Nizam altered  her course  to port in such a manner that she was converging  on and  crossing  the course of the Kalawati.   The  respondent then  stopped signalling and as the Nizam continued  on  the wrong  course taken by her until her bows were fine on  the. port bows of the Kalawati, a collision seemed imminent,  the two vessels then being about two cables apart.  In order  to avert the imminent risk of collision the respondent  ordered the  Kalawati  to  be  put  hard  aport  and  simultaneously indicated  to  the Nizam the alteration  of  the  Kalawati’s course.   The  Nizam,  however, instead of  keeping  to  the course already taken by her and passing the Kalawati on  the starboard side, erroneously attempted to correct the earlier wrong  course taken by her and attempted to go back  to  her proper  side  of the channel.  The Nizam  then  altered  her course  to  hard  starboard with the  result  that  the  two vessels were in such a position that it was not -possible to avert  a  collision either by slackening the  speed  of  the Kalawati or by going astern.  In substance, the case of  the respondent  was  that  the  collision  was  caused  by   the circumstances  (a)  that  the Nizam failed to  keep  to  her proper side of the channel, (b) that she continued to  -port in  such  a  manner as to put the  Kalawati  in  a  perilous position  and the Kalawati had to take avoiding  action  and finally  (c) the Nizam was negligent in altering her  course to  hard astarboard after being made aware  repeatedly  that the  course  of  the  Kalawati had  been  altered  to  port. Therefore,  according to the respondent, the action  of  the Nizam  in steering starboard after Kalawati had  taken  port action,  was  the  proximate  and  effective  cause  of  the collision. 985 On  the pleadings’ stated above, several issues were  framed but  the  principal question for decision  by  the.  learned trial Judge was if it was the negligent action’ of the Nizam or of the Kalawati which caused the collision.  Issues 1,  2 and  3  were the issues which related to this  question.   A further  question  was  raised by issues 4 and  6  and  that related to contributory negligence, and in case it was found that  both the vessels were to blame for the collision,  the question raised was in what proportion the negligence of the Nizam and of the Kalawati contributed to the collision.  The learned   trial  Judge  found  in  favour  of  the   present appellant.  on  the  principal question  and  expressed  his finding in the following words:- " I have come to the finding that the first helm action  was

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taken-and  rightly  taken-at the crucial time by  the  Nizam going hard astarboard, and the Kalawati turned to port  when there   was   no   question  of   the   imminence   of   any collision...........  In these circumstances, as a  standing on vessel the Kalawati turned - and wrongly in my opinion  - to  port  and  but for her turning to  port,  there  was  no question  of  the  two  vessels  coining.  into  a  perilous position.  In these circumstances, I am of the opinion  that the  Nizam was justified in starboarding.  The Kalawati  had to  keep  her  course under the rule  being  a  standing  on vessel, and should have maintained her course in that manner until  the  last safe moment, but to my mind she  turned  to port much before any such occasion arose.  On this point,  I may say that had the Kalawati to take any action at all, the normal  action would have been going to starboard, and  this would have completely avoided the collision.  On this  point I  may  state  that the nautical advisers whom  I  have  had occasion  to  consult are in agreement with the  view  I  am adopting. I  may  also  state that in my opinion  the  Nizam  put  its engines  full  speed  astern at  the  earliest  opportunity, looking  to  the situation.  The Nizam was  put  full  speed astern  at  least  2 1/2 minutes  approximately  before  the collision took place, and even if the statement of 124 986 McLure  that  she was dead slow before the  collision  is  a slight  overstatement  it must follow that the back  of  the momentum  of  the Nizam had already been wholly  broken  and there  is  evidence that she was doing about 3  to  4  knots instead  of  her 9 to 10 knots normal speed.  On  the  other band, I am clearly of the opinion that it was  fundamentally wrong for the Captain of the Kalawati not to put her engines full  speed  astern  immediately he saw  the  situation  was perilous.  In fact, instead of doing so, he went full  speed ahead.  To my mind, that was not only a wrong judgment but a judgment  inspired by desperation, namely, that  by  putting them  full  spied ahead with a bit of luck,  he  would  have cleared himself of the nose of the Nizam. I have, therefore, come to the conclusion that the  Kalawati wrongly  altered her course at the moment when she did,  and if  any step had to be taken she should have altered not  to port  but  to  starboard,  and  if  any  other  action   was necessary,  she  should  have put  her  engines  full  speed astern." - In  view of the aforesaid findings, the learned trial  Judge expressed  the  view  that  the  question  of   contributory negligence  did  not  arise, as also the  question  in  what proportion each contributed to the collision.The question of damages  was, by agreement, held over until the findings  on the  question  of negligence and, after  the  learned  trial Judge  had given the necessary findings on the  question  of negligence,  the damage sustained by the Nizam was  assessed at  Rs. 76,893-2-8 and a decree was passed for  that  amount with interest thereon at four per cent. per annum from  June 19, 1941. The  respondent then preferred an appeal and the appeal  was heard   by  Chagla,  C.  J.,  and  Bhagwati,  J.  Like   the trial  Judge, the Judges who heard the appeal also  had  the assistance of two assessors.  On the principal question.  as to,  whether-  the  collision was caused  by  the  negligent action.  of  ’the  Nizam or of the’  Kalawati,  the  learned Judges  who  heard the appeal reversed the findings  of  the learned trial Judge. They said: "Therefore, in our opinion, on this evidence, we

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987 must find as a fact that the Nizam did not alter her  course to  starboard  at 6-45 p.m., but she did so much  later  and very likely at 6-48 p.m. when she gave one blast to indicate the change of course.  ’Now, if that is the fact we find, we have to consider what bearing that finding of fact has  upon the question of the defendant’s negligence.  The question is whether  the defendant was justified in turning his ship  to port  at  6-48 p.m. if at that moment the  Nizam  was  still steering  to  port.  The question is whether  at  6-48  p.m. there  was  a reasonable probability of  a  collision  which justified  the  Kalawati in changing her course to  port  in order  to avoid that collision.  We have the plan before  us and we have the evidence before us, but as this question  of fact  involves a question of nautical skill we have  availed ourselves  of  the assistance of the  assessors.   Commander Kale is emphatically of the opinion that at 6-48 p.m. if the Nizam  was pursuing the same course that she was doing  from 6-38 p.m., there was a reasonable probability of a collision which  it was the duty of the defendant to avoid as best  as he  could, and according to Commander Kale, the only way  he could  have possibly avoided it was by steering his ship  to port.   Capt.   Malcolm does not agree with this  view.   He takes the’ view that the Kalawati should have rather  turned to  starboard than to port, and his opinion is based on  the consideration that the Kalawati should have assumed that  at sometime or other the Nizam would turn starboard and  taking that possibility into consideration she should have gone  to the  right side and not to the wrong side.  With respect  to Capt.  Malcolm, we are inclined to prefer the opinion  given by Commander Kale as to what should have been done under the circumstances...  Now,  as the Nizam was the "  giving  way" vessel,  there  was  the  primary  obligation  upon  her  if necessary  to  stop  the ship or to go astern,  and  on  the evidence  it is difficult to resist the conclusion that  the order to go full speed astern, could have been given earlier either  by the Captain himself or by Mason.  On  this  point both  the assessors have expressed their opinion that  as  a matter of nautical skill 988 it would have been possible and indeed it should have  ,been done,  viz.,  that the ship should have been ordered  to  go full speed astern earlier than 6-49 p.m. In  our opinion, therefore, there are these two facts  which have definitely contributed to the collision taking place at 6-52 p.m. The first is the failure on the part of the  Nizam to  give  the  signal that she  was  going  starboard,  even assuming  that  we  accept the  plaintiffs’  case  that  she starboarded at 6-45 p.m. If she had given the signal then it would have given proper and full warning to the Kalawati  as to  what the Nizam was doing or going to do at that  moment. The other fact which has also contributed in our opinion  to the collision is the failure on the part of the Nizam to  go full speed astern earlier than 6-49 p.m." In the result, the appeal  was  allowed  and the action of  the  appellant  was dismissed with costs throughout. We have already stated that the High Court of Bombay gave  a certificate  of fitness under Art. 133 of  the  Constitution and  the  present appeal has been brought to this  Court  in pursuance of that certificate. Two  assessors,  Capt.   J. A. Cleeve and  Commodore  A.  K. Chatterjee,  have  assisted us.  At the very outset,  it  is necessary  to clarify two points.  Firstly, it appears  that the  learned Judges who heard the appeal in the Bombay  High Court  did  not base their findings on the evidence  of  the

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respondent or his witnesses; nor did the learned trial Judge attach   any  great  importance  to  the  evidence  of   the respondent or his witnesses.  The learned Judges said:- "  We  do  not blame the learned  Judge  because,  when  the evidence of both these witnesses was laid before us, we also felt that the evidence was not given in a manner which would inspire confidence." Learned  counsel for the appellant has placed before  us  in full  the evidence of the appellant and its  witnesses.   He has  also placed before us such portions of the evidence  of the respondent and his witnesses as, in his opinion, support the  case of the appellant.  In arriving at our  conclusions we  have  also proceeded on the footing that as  the  courts below  did  not consider the evidence  of  the  respondent’s witnesses to be reliable, 989 the principal question of negligence must be decided on  the evidence of the appellant’s witnesses.  The trial Judge took one  view  of that evidence and the Judges’  who  heard  the appeal  took  another  view.   There  being  no   concurrent findings,  we allowed learned counsel for the  appellant  to place  the  entire  evidence of  the  appellant’s  witnesses before  us in support of his contentions.  The  other  point relates  to the assessors.  It has not been disputed  before us that the function of nautical assessors is to advise  the court upon nautical manners and as Scott, L. J., said in The Clan Lamont (1): "............ their advice is expert evidence, admissible in Admiralty Courts, on all issues of fact about seamanship." The  decision of the case, however, rests entirely with  the court  and even in purely nautical matters the court is  not bound to follow the advice of assessors, but on questions of nautical science and skill great attention must obviously be paid to the opinion of the assessors since they are the only source of information on these points and some reason should be  given for disregarding them.  In the Australia (2)  Lord Dunedin  deprecated putting to assessors a question that  is tantamount  to asking them whether they would find  for  the plaintiff or the defendant and repudiated the idea that  the views  of the assessors in an appeal court are  entitled  to more  respect than those of assessors below.  The  assessors in an appeal court are not substituted for those  previously consulted;  they are additional to them; and if one  adviser or  two advisers are to be preferred, it is because  in  the judgment  of  the  court the advice given  is  such  as,  in itself, is the more acceptable.  There can be no question of any  appeal from one set of assessors to another.   We  have followed  the same principles with regard to the  advice  of the assessors given in this case and we shall refer to  such advice in the course of this judgment when it has a  bearing on the questions at issue before us. The principal point for determination in this case is  which of the two, the Nizam or the Kalawati, was (1)  (1946)  79  LI.   L. Rep. 521,  524  (Lloyds  List  Law Reports). (2)  [1927] A. C. 145. 990 responsible for the collision; and if both were responsible, what  is the extent of the responsibility of each ?   For  a determination  of these questions it is necessary  first  to find what courses the aforesaid two boats were, following at the  relevant time and what changes of course were  made  by them.  These facts have to be determined first and in  doing so  we must keep in mind some of the regulations made  under the,  Merchant Shipping Act, 1894.  It has been admitted  by

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counsel  for both -parties that these Regulations apply, and are  concerned with the Regulations of 1910,  namely,  those made  by an order in Council dated October 13,  1910.   They embody rules which were to be followed at the relevant  time by  all  vessels  upon  the high seas,  and  in  all  waters connected   therewith   navigable  by   sea-going   vessels. Articles 17 to 27 of the 1910 Regulations relate to steering and sailing rules.  Article 17 applies to  sailing  vessels, and  Art.  18 to steam vessels. Article, 18 says  in  effect that when two steam vessels are meeting end on or Dearly end on so as to involve risk of collision, each should alter her course  to starboard so that each may pass on the port  side of the other.  Article 19 is in these terms: Art.  19.   "When two steam vessels are crossing,  so  as to involve risk of collision, the vessel which has the other on her  own  starboard side shall keep out of the  way  of  the other." The vessel which has to keep out of the way of the other  is called the " give way " vessel and the other is called the " standing  on"  vessel.  In the case before us  there  is  no dispute  that  the  Nizam was the give way  vessel  and  the Kalawati   the  standing  on  vessel. Article  21  has  some bearing  on  the question at the issue before us and  is  in these terms: Art.  21.  " Where by any of these Rules one of two  vessels is  to keep out of the way, the other shall keep her  course and speed." Article 23 says : "  Every  steam vessel which is directed by these  Rules  to keep out of the way of another vessel shall, on  approaching her, if necessary, slacken her speed or stop or reverse." 991 Article  24 says inter alia that notwithstanding any.  thing in  the Rules, every vessel overtaking another,  shall  keep out of the way of the overtaken vessel.  Article 25 is  very important  for  our  purpose, as  learned  counsel  for  the appellant  has  placed great reliance on it.   This  Article must, be quoted in extenso. Art.  25.   " In narrow channels every steam  vessel  shall, when  it is safe and practicable, keep to that side  of  the fairway  or mid-channel which lies on the starboard  side-of such vessel." There has been considerable difficulty in defining a " narrow channel  ",  and in the trial court the  present  respondent denied that the swept channel outside the Madras harbour was a  narrow channel within the meaning of Art.  25  aforesaid. The courts below proceeded, however, on the footing that the channel in question was a narrow channel within the  meaning of  the said Article and we have also proceeded on the  same footing.  Article 27 is also important for our purpose.   It says: Art.  27.   "  In obeying and construing  these  Rules,  due regard  shall  be  had  to all  dangers  of  navigation  and collision, and to any special circumstances which may render a departure from the above Rules necessary in order to avoid immediate danger." Articles  29 and 30 are two residuary Articles.  Article  29 inter  alia says that nothing in the Rules  shall  exonerate any  vessel from the consequences of any neglect to  keep  a proper  look out or of the neglect of any  precaution  which may  be required by the ordinary practice of seamen,  or  by the special circumstances of the case, and Art. 30 says that nothing in the Rules shall interfere with the operation of a special  rule, duly made by a local authority,  relative  to the navigation of any harbour, river or inland waters.

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We  proceed  now  to a consideration of  the  evidence  with regard  to  those facts on which the  determination  of  the question  of  negligence depends in this case.   We  do  not propose  to  embark on a very detailed third review  of  the evidence  given in the case, but shall confine ourselves  to those  salient points which, in our view, are  determinative of the principal question at 902 issue  between the parties, namely, that of negligence  ,for the  collision  which  took place at about  6-51  p.  m.  on December  13, 1940.  We shall for that purpose refer to  the evidence  of Mason, McLure and Abdul Nabi,  three  witnesses for  the  appellant.  As to the effect of  the  evidence  of these  three  witnesses, the learned Judges  who  heard  the appeal  in  the  Bombay  High  Court  came  to   conclusions different  from those of the learned trial Judge and one  of the  points for our consideration will be if  the  appellate Court  gave good and convincing reasons for  differing  from the view of the evidence which the learned trial Judge took. It  may  be stated here that the aforesaid  three  witnesses were examined by Blagden, J., in April, 1945, and  February, 1946,  and  that  learned Judge made some notes  as  to  the manner  in  which the three witnesses gave  their  evidence. Our  attention  has  been drawn to those  notes  by  learned counsel for the appellant.  Blagden, J., however had  ceased to  be a Judge of the Court before the suit was tried.   The respondent  and  his  witnesses were  examined  in  1950  by Coyajee, J., who tried the suit and gave judgment in  favour of the appellant. It  appears  from the evidence that at about  4-45  p.m.  on December  13,  1940, the Nizam took the pilot on  board  and proceeded to sea.  At about 5-22 p.m. the pilot was  dropped and she proceeded at full speed under McLure’s orders up the swept  channel, the speed being about 10 1/2 knots.   McLure handed  over to Mason at about 5-55 p.m. and the  Nizam  was then  steering  a course north 86 degree east,  making  some allowance  for  the leeway to port for the set of  the  tide from north to south.  At about 6 p.m. the third officer  re- lieved Mason; Mason returned to the bridge at 6-30 p.m.  and took  over from the third officer.  Mason said that  be  had checked  the bearings of the Nizam just before he  left  the bridge  at 6 p.m. and she was then two cables on the  proper side  of  the  channel.  Soon after 6-30 p.m.  Mason  saw  a vessel about two points on the starboard bow of the Nizam at a distance of about three miles.  Mason’s evidence was  that he thought then that the Nizam was overtaking 993 that other vessel which must have been the Kalawati.  At  6- 38  p.m. Mason altered the course of the Nizam 8  degree  to port,  because  he thought that the Nizam and  the  Kalawati were  on converging courses.  At 6-43 p.m. the  look-out  on the  Nizam rang the bell twice indicating a vessel viz.  the Kalawati  on  the starboard side.  Mason then said  that  at about  6-45  p.m.  the Kalawati was about one  mile  on  the Nizam’s starboard bow and was clearly seen to be crossing to starboard port.  The Kalawati then made an Aldis lamp signal and  Mason  replied I.M.I. with a torch which  asked  for  a repetition  of the signal.  Mason then ordered  bard  astar- board;  he did this because under certain wartime  orders  a merchant  vessel  had  to  turn  away  from  any  ship  that signalled.  At 6-47 p.m. the Kalawati was several points  on the  port  bow  of the Nizam and near about  6-48  p.m.  the Kalawati  altered  her  course to  port  and  indicated  the alteration by two short blasts.  Mason replied by one  short blast  indicating that the Nizam was turning  to  starboard.

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At  about  6-49 p.m. McLure came on board and he  rang  full speed  astern.  By about 6-51 p.m., however,  the  collision took place. The  above  gives in brief a summary of  the  events  which, according to Mason, led to the collision.  McLure’s evidence was  that  he returned to the bridge at about 6-48  p.m.  on hearing two short blasts from the Kalawati, and on coming to the  bridge  he saw that the Kalawati was turning  to  port. McLure  at once ordered full speed astern and  caused  three short blasts to be given; but the collision occurred  within about two minutes.  Abdul Nabi was the Quarter Master of the Nizam.   His evidence was to the effect that Mason  came  on the bridge at about 6-30 p.m. and at that time the Nizam was steering a course north 86 degree east.  At about 6-40  p.m. (Abdul Nabi said that it was ten minutes after Mason came on the  bridge) be received an order to steer 8 degree to  port and  he did so.  Some five or ten minutes after he  received another  order to go to starboard, that is, to  the  Nizam’s former course.  Then came the last order to hard  astarboard and this was at about the time when Abdul Nabi board two 125 994 blasts  from  the Kalawati.  It may be  here  remarked  that Abdul Nabi’s evidence differs essentially from that of Mason as to the time when the Nizam went hard astarboard and  also as to the sequence of events which led to the alteration  of the  Nizam’s  course from north 86 degree east to  8  degree port first, then to her former course and then again to hard astarboard.  We shall later return to these discrepancies. The  three circumstances, however, which stand out from  the evidence  of Mason are-(a) that the Nizam was on the  proper side  of the channel at about 6-45 p.m.; (b) she  turned  to hard  astarboard at about 6-45 p.m. in order to present  her stern  to  the Kalawati in compliance with  certain  wartime orders;  and (c) the Kalawati turned to port at  about  6-48 p.m.  after she had seen the Nizam turn to  hard  astarboard some three minutes earlier.  If Mason’s evidence is  correct with  regard  to the aforesaid three circumstances  and  the Kalawati turned to port after she had seen the Nizam turn to hard  astarboard and if at the time the Kalawati was on  the wrong  side  of the channel, then there can be  very  little doubt  as  to  where the responsibility  for  the  collision should  lie.   Coyajee, J., accepted Mason’s  evidence  with regard  to the aforesaid three circumstances and  held  that the  responsibility for the collision lay on  the  Kalawati, because she turned to port at the time she did after  having seen  the Nizam turn to hard astarboard some  three  minutes earlier.   The learned Judges who heard the appeal  did  not accept as correct Mason’s evidence that the Nizam turned  to hard  astarboard at about 6-45 p.m. in order to present  her stern  to the Kalawati ; on the contrary, from the  evidence of  McLure and Abdul Nabi read with the evidence  of  Mason, they came to the conclusion that it was impossible to accept the appellant’s case that the Nizam turned starboard at 6-45 p.m. and it was more likely that she turned to starboard  at about  6-48  p.m.  after she had heard  the  signal  of  the Kalawati that she was turning to port.  In other words,  the learned  Judges found that the Kalawati had turned  to  port first in order to avoid an imminent risk of collision and it was then that the Nizam 995 altered  her  course  to starboard in order to  get  to  the proper side of the channel. The  question  before  us is which of  these  two  views  is correct.  On a careful consideration of the evidence and the

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submissions made thereon by learned counsel for the parties, we  are of the opinion that the view of the  learned  Judges who heard the appeal is the correct view.  According to  the evidence  of  Mason, he checked the bearings  of  the  Nizam before  he  left the bridge at 6 p.m. and  on  checking  the bearings from the Madras Light House and a conspicuous white house  on the north side of the harbour, he found  that  the Nizam was two cables on the proper side of the channel.   It appears  that  there  should have been a dan  buoy  in  mid- channel to mark the mid-line.  Mason said that he looked for it  , but did not find it.  There was a fairway buoy at  the end  of the channel, that is, near the mouth of the  channel from  the  open sea.  It is not disputed that  the  Kalawati entered the channel south of the fairway buoy and was at the time  of the entry into the channel on the wrong side.   The question, however, is what was the position of the two boats at  the relevant time, namely, at about 6-45 p.m.  when  the distance  between  the  two boats was about a  mile  or  so. Mason’s  evidence itself shows that at about 6-45 p.m.  both the  boats were near about the mid-line of the channel.   It is  to  be remembered that though the Nizam  was  about  two cables  on the proper side of the channel at about  6  p.m., she  had  altered her course 80 to port, even  according  to Mason,  at about 6-38 p.m. Abdul Nabi’s  evidence  indicated that the Nizam had altered her course to port by about  10’. Even  allowing  for the set of the tide, if  the  Nizam  had continued  in  her  port course in  order  to  overtake  the Kalawati  (as Mason was then under the impression  that  the Nizam was overtaking the Kalawati), she would cross the mid- line  and  go  into the wrong side of the  channel.   It  is worthy  of note that in the plaint there was no  mention  of the  circumstance that the Nizam altered her course to  port in  order to overtake the Kalawati, on the wrong  impression that - both the boats were going in the same direction.  But be that 996 as  it may, it is quite clear that the Nizam did alter  ,her course  to port at about 6-38 p.m, and if she  continued  in that course till about 6-48 p.m., she would be near the mid- line of the channel or just across it at the relevant  time. Mason admitted this and said in cross-examination: " At  18- 45 1 was just about in the mid-channel and the Kalawati  was then steering a crossing course ". Mason prepared a chart to show  the position of the two boats and this was  marked  as Ext.  A. This chart also showed that at about 6-45 p.m.  the Nizam was on the mid-line and if the Nizam had continued her port course she would be on the wrong side of the channel at about  6-48  p.m. Even though the Kalawati had  entered  the channel south of the fairway buoy, which was her wrong side, she  was steering a course north 80 degree west,  making  an allowance for a southerly drift of about 1 or 1.5 knots.  By steering  that  course the Kalawati would also be  near  the mid-line of the channel at about, 6-45 p.m. She would be  on her right side of the channel at 6-46 p.m. This is also made clear  from  the  chart, Ext.  A. Learned  counsel  for  the appellant repudiated the correctness of the chart, Ext.   A, but it is a chart prepared by his own witness and so far  as the position of the Nizam was concerned, the chart must have been  prepared  on the position and course of the  Nizam  as given  by  the appellant’s own witnesses.  We  see  no  good reasons  for discarding the chart, Ext.  A. At  our  request the assessors also prepared a chart showing the position  of the two boats on the following  assumptions:.(a)     Nizam’s speed about 10.2 knots,(b)    Kalawati’s   speed  about   11 knots, (c) the set of the tide about.71 knots and (d) length

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of the swept channel about 18 miles.  This chart also showed that  at about 6-45 p.m. the Nizam was on the  mid-line  and the Kalawati had crossed the mid-line into her right side of the channel.  If the set of the tide was two knots or  three knots,  as some of the witnesses said, then both  the  Nizam and the Kalawati would be outside the swept channel, and  if the Kalawati was sighted two points on the starboard bow  of the  Nizam she would be further south of the southern  limit of the 997 swept  channel.  On a consideration of the evidence  in  the case it appears to us that at the relevant time, namely,  6- 45 p.m., both the boats were near about the mid-line, may be a little on the right or wrong side of it, and the  distance between the two boats was about one mile at that time.   The very elaborate argument of learned counsel for the appellant based  on  Art. 25, which requires every steam vessel  in  a narrow channel to keep to the starboard side of the channel, loses  much  of  its  force when we  remember  that  at  the relevant  time the two boats were near the mid-line  of  the channel  and,  according  to Mason, the  Kalawati  was  then crossing to starboard port.  One of the assessors, Commodore Chatterjee,  gave  as his opinion that if the  Kalawati  was coming  from the south, it would be easier for her to  enter the  channel  south  of the fairway buoy and  he  would  not consider it as a breach of the rules of the road unless  the Kalawati  was  embarrassing another ship Coming out  of  the channel.  Capt.  Cleeve said that as a merchant ship captain he  would never do it, but as a naval ship captain he  might do  it  and although it might be against the spirit  of  the regulations, it would not be a breach of them.  It is to  be remembered  again that the Kalawati entered the  channel  at about  6-25 p. m. and at the time the Nizam was about  seven miles  away.  We do not, therefore, think  the  circumstance that  the  Kalawati entered the swept channel south  of  the fairway  buoy  decisive on the issue of negligence.   As  we have remarked earlier the decisive question is what was  the position  of the two boats at the relevant time, namely,  at about  6-45 p.m.? The evidence leaves no room for any  doubt that at the relevant time the two boats were near about  the mid-line of the channel. The  question is what happened thereafter ? Mason said  that from 6-38 to 6-41 p.m. he assumed that he was overtaking the Kalawati;  from  6-41 to 6-45 p.m. he was in two  minds  and when  at  6-45 p.m. the Kalawati signalled the  Nizam,  then Mason came to know that the Kalawati was steering a crossing course.  Mason said that he then changed to hard starboard. 998 This part of the evidence of Mason is flatly contradicted by Abdul  Nabi  and  is  -further  not  supported  by   several circumstances to which we shall presently refer.  It is true that none of the witnesses gave the time with the  precision of  a watch and what they said about time was more  or  less approximate.   Abdul Nabi was, however , very definite  that Mason  first  ordered the Nizam to steer 80  to  port;  then there  was  a second order to go to the  former  course  and lastly  there was an order to go hard astarboard.  If  Abdul Nabi  is telling the truth, then even making  due  allowance for the approximate nature of the times which he  mentioned, the  evidence  of Mason that he changed the  course  of  the Nizam  to  hard  astarboard at about  6-45  p.m.  cannot  be correct.  Then, take the following circumstances one by one. If  Mason  had  changed  the course of  the  Nizam  to  hard astarboard,  why  did he not give a signal to  indicate  the change  of  course  ?  The evidence is very  clear  on  this

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point.   It was the Kalawati which gave two short blasts  at about  6-48 p.m. to indicate that she was changing to  port. Thereafter  the Nizam replied by one short blast  indicating that  she  was  changing to starboard.   If  the  Nizam  had changed  to  starboard  three minutes earlier,  why  was  no signal  given  ? It is necessary to refer here  to  Art.  28 which  says that when vessels are in sight of one another  a steam  vessel under way shall indicate the course  taken  by her.  Mason made an attempt to say in his evidence that Art. 28  was not adhered to in wartime; but then he had to  admit that only a few minutes after, the Nizam did give one  short blast in reply to the two short blasts of the Kalawati.   It is obvious that Art. 28 was not abrogated during wartime and it was the duty of the Nizam to indicate by one short  blast that  she was changing to starboard, if she actually did  so at  6-45 p.m. We are, however, of the opinion, in  agreement with  the  learned Judges of the appellate Bench,  that  the Nizam did not change her course to starboard at 6-45 p.m. as Mason  wants  us  to believe; on  the  contrary,  the  Nizam continued  her  port course till about 6-48 p.  m.  and  she changed to starboard only after she had heard the two blasts from 999 the  Kalawati.   This,  we think, is  clear  from  two  very important  circumstances.  McLure admitted in  his  evidence that  at  the  speed and  under  the  conditions  prevailing immediately  before the collision, it would take  the  Nizam about  2 1/2 minutes to swing 90’ with her helm  hard  over. If  actually  Mason had altered the course of the  Nizam  to hard astarboard at 6-45 p.m., then she would be heading back towards  Madras at the time’ when the collision took  place. Even  McLure  said:  " If Mason’s statement  is  correct,  I should  have expected my ship to be heading at right  angles to  her former course." That was not, however, the  position of  the Nizam when the collision took place.  The  assessors were  agreed  that  once  the wheel  had  been  placed  hard starboard,  it was not possible to put the wheel further  to starboard.   If actually more than five minutes had  passed, after  the Nizam had been put hard starboard, she  would  be swinging starboard all the time and she would take a turn of about 180’ within five minutes.  In any event, by about 6-48 p.m.  she would be at right angles to her former course,  as stated  by McLure.  We think that McLure’s evidence on  this point  destroys  the case of Mason that he had  altered  the Nizam’s  course. to hard astarboard at 6-45 p.m. Then  there is  the second important circumstance that  McLure  admitted that he knew nothing about any helm action of the Nizam from 5-55 p.m. to 6-48 p.m. McLure said : " First I heard at 6-43 p.m. two bells indicating an  object on the starboard bow.  I was still in my cabin at the  time. I  was reading Admiralty messages.  I heard two blasts  from the  other  ship  at 6-48 p. m. I have  no  recollection  of feeling  any  helm  action  of  my  ship  before  that.    I immediately went up on the bridge.  The Nizam did not  sound one  blast till I had reached the top of the  ladder.   That would normally suggest that the Kalawati had turned to  port first ". McLure further said that when a ship alters  course and   signals,  the  alteration  and  the  signal  must   be simultaneous.   It  would be surprising indeed  that  McLure would  not  notice  the helm action  to  hard  starboard  if actually the Nizam had been put hard 1000 starboard  at 6-45 p.m. The assessors were asked about  this matter  and Commodore Chatterjee said that if the  helm  was put  hard  over,  be would feel it even if  he  was  asleep.

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Capt.  Cleeve said that the master of a fast ship would feel the  helm  action  sooner than the master of  a  slow  ship, probably twenty to thirty seconds sooner.  McLure,  however, felt no helm action at all up till 6-48 p.m. This also shows that  the story of Mason that he changed the course  of  the Nizam to hard astarboard at 6-45 p.m. was not correct. The  reason which Mason gave for altering the course of  the Nizam hard a-starboard at 6-45 p. m. was an alleged war-time order that a merchant vessel when challenged must turn  away from  the  challenging  vessel.  This  reason  is  far  from convincing.    No  such  war-time  order  was  produced   in evidence.   In  Ex. C (Surveyor’s report dated  January  27, 1941) the reason for the starboard action was stated thus:- "  At  6-45 p. m. the other vessel appeard to be  about  one point on the starboard bow and about one mile distant and to be  beading to cross the bows of s. s. " Nizam ".  The  helm put  bard  astarboard in order to pass astern of  the  other vessel." There  was no reference to any wartime order  or  regulation then.  McLure said in his evidence: " The rule about turning away from a challenging vessel  was a  secret  matter and I did not think it fit to  mention  it even  to  my Managing Agents.  Mason told me  he  originally steered to starboard in order to pass port to port." Even  Mason was far from being firm as to the  reason  which led  him to turn hard astarboard at 6-45 p. m.  Having  said that  the  only  reason was the alleged  wartime  order,  he changed  and said that he turned hard starboard  because  he was dazzled with the Aldis lamp signal and the Kalawati  was too close.  He admitted that he knew then that the  Kalawati was a patrol vessel which was not hostile; yet he wanted  to turn astern, as the Nizam had a gun mounted astern!   Again, he changed and gave a third reason for going hard starboard, namely, he wanted to get out of the way of the Kalawati.  In this state of the evidence, it is 1001 impossible  to place implicit reliance on  Mason’s  evidence that  he turned hard starboard at 6-45 p. m. for the  reason that  a  so-called  war-time order required him  to  do  so. Learned counsel for the appellant drew our attention to  the respondent’s evidence on this point.  The respondent said: "  When  a ship is challenged she gives her name  and  turns round but not in the swept channel or in the harbour. I  do  not agree that in the swept channel when a  ship  was challenged to give her name she would have to turn round.  I did  state  before the Marine Enquiry that when  a  merchant ship  is  challenged  she would turn  about  necessarily  by starboard  movement and give her name and the turning  about would  be action preparatory to running away and that  owing to  war these regulations were in force.  I gay that  I  was trapped into giving answers by vague questions." We  agree  that  the  respondent’s  evidence  is  not   very ingenuous;  but it cannot be accepted as an admission  which relieved the appellant from proving the existence of a  war- time order or regulation of the kind and nature suggested by Mason  in his evidence.  Mason’s evidence taken as  a  whole seems to indicate that the order to turn hard starboard came much later than 6-45 p. m. and the reason for the order  was to get back to the right side of the channel and to get  out of the way of the Kalawati, if possible.  Unfortunately, the action was taken too late and after the Kalawati had already turned to port.  On the evidence, we are unable to hold that the  Nizam took starboard action before the Kalawati  turned to port. The question now arises-why did the Kalawati turn to port at

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about  6-48 p. m. and in doing so, did she commit an act  of negligence  or  an act which in any way contributed  to  the collision?   On behalf of the appellant, it has been  argued that  even  if we find on the facts that the  Kalawati  took port  action first, this action was wholly  unjustified  and wrong and, in any event, the Kalawati could and should  have gone to starboard to avoid the collision; therefore, she was wholly to blame.  Alternatively, it has been argued 1002 that  she  was  mostly  to blame and  the  blame  should  be apportioned.   Ike shall deal with the alternative  argument at a later stage. The  question is-why did the Kalawati turn to port at  about 6-48 p. m. ? We think that Mason’s own evidence furnishes an answer  to  the question.  We know from the  Kalawati’s  log book that she entered the swept channel at about 6-25 p.  m. south of the fairway buoy and she was then steering a course of  north 80’ west; by about 6-45 p. m. she was on the  mid- line  of the channel when she sighted the Nizam on the  port bow.   The  Nizam had already altered her  course  to  port. Mason summarised the position at 6-45 p. m. thus: " At 18-45 she  (meaning  the  Kalawati)  was  about  one  mile  on  my starboard  bow  and was crossing to starboard  port."  Capt. Cleeve   thus  explained  the  meaning  of   the   aforesaid statement:  "That  means that the distance between  the  two boats was one mile, and she (Kalawati) was a mile, off to my (Nizam’s)  starboard  bow  and  she  was  crossing  from  my starboard  ’to  my  port.  "  Mason  further  clarified  the position  by  saying that the two boats were  then  steering crossing courses and it was not correct to say that if  both ships  had kept their course and speed as it was at  6-43  p m.,  they would have passed port to port.  Mason  also  said that  "  the two boats were on converging courses  at  18-45 hours  ". ,Obviously, there would have been a collision,  if no  avoiding action was taken. by either boat.  That is  why Mason was at pains to point out in his evidence that he took starboard action at 6-45 p. m. to get out of the way of  the Kalawati  and if both. the ships, had kept their courses  as they were immediately after Mason had starboarded at 6-45 p. m.,  they would have passed port to port with about  half  a mile  to  spare.   We  have  found,  however,  that  Mason’s statement  that  he had starboarded at 6-45 p.  m.  was  not correct.  The position, therefore, was that. the two  boats- were  on crossing courses in a, narrow channel and when  the Kalawati  signalled with the Aldis lamp, she found that  the Nizam  was  still steering to port.  The Aldis  lamp  has  a small telescope attached to it and from a demonstration made in Court, it became obvious that 1003 the  respondent  was  in  a  position  to  see  through  the telescope what course the Nizam was taking.  At? about  6-48 p. m. the distance between the two boats was less than  half a  mile,  and unless the Kalawati took  avoiding  action,  a collision  was imminent.  Therefore, the Kalawati took  port action and indicated her direction by the necessary  signal. The  justification for the port action of the  Kalawati  was the  continuance  of the Nizam on a  port  course--a  course which  was not only taking the Nizam over the mid-line  into the  wrong  side  of the channel but was  also  making   her converge  on the course of the Kalawati.  The  Kalawati  was the standing on vessel, and it was the duty of the Nizam  to get  out  of  the way.  Instead of  doing  that,  the  Nizam persisted  in her port course and changed to hard  starboard after  the  Kalawati had justifiably taken  port  action  to avoid  an  imminent risk of collision.  It has  been  argued

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before  us  that the Kalawati should have  anticipated  that sooner  or later the Nizam would correct her mistake and  go to the starboard side of the channel and, therefore, as  the standing on vessel, the Kalawati should have kept her course and  speed as required by Art. 21, and if she had  done  so, there would have been no collision.  This argument fails  to take note of the perilous position in which the Kalawati was placed by the continuance of the Nizam in a port course till about  6-48  p. m. and furthermore ignores Arts. 27  and  29 under which when a vessel finds herself so close to  another vessel  that a collision cannot be avoided by the action  of the giving-way vessel alone, she must also take such  action as  will  best aid to avert collision.   The  Kalawati  was, therefore,  justified, in taking port action at 6-48  p.  m. when  a collision seemed imminent and perhaps the  collision would  have  been  averted if the Nizam had  not  taken  the unfortunate  action of hard starboarding after the  Kalawati had taken port action.  McLure realised the position as soon as  he  came on the bridge at 6-49 p. m.  and  ordered  full speed  astern.   Unfortunately, it was too  late  then.   If Mason  had  followed  the  provisions of  Art.  23  and  had slackened the speed of or reversed the Nizam between 6-45 p. m. and 6-48 p. m. the collision might have been averted. 1004 Instead,  however,  he  ordered the Nizam  to  be  put  hard starboard  at about 6-48 p. m. This, in our opinion, was  an act  of negligence, which was primarily responsible for  the collision.  The findings of the learned trial Judge were, in our  view,  vitiated by reason of the circumstance  that  be accepted  as  correct Mason’s evidence that he had  put  the Nizam  bard  astarboard  at  6-45 p.  m.  in  the  teeth  of circumstances  which  showed  clearly  enough  that  Mason’s evidence  about  starboarding  at 6-45 p. m.  could  not  be correct.  These circumstances were-(I) if Mason had put  the Nizam  hard starboard at 6-45 p. m., the Nizam would be  90’ to her former course by 6-48 p. m. and by 6-49 or 6-50 p. m. she would be turning towards Madras; (2) McLure did not feel any  such helm action at 6-45 p. m.; (3) the Nizam  gave  no signal  of starboarding at 6-45 p. m. but gave  such  signal after the Kalawati had turned to port soon after 6-48 p. m.; and (4) the reason which Mason gave for starboarding at 6-45 P.  m. did not stand the test of scrutiny.  In the court  of appeal  below,  one of the assessors, Commander  Kale,  said definitely that the only war-time restrictions in 1940  were with  regard to lights and wireless communication.  He  said that  signals bad to be given by ships when they decided  to change  their  course, and the more so when  ships  were  in restricted waters and there was another vessel coming ahead. We  think  that  the learned Judges  who  heard  the  appeal rightly  emphasised  the  importance  of  the  circumstances stated  above,  and having given them  due  weight,  rightly reversed the findings of the learned trial Judge. To summarise our conclusions now: (1) we accept the position that  the Kalawati entered the channel at 6-25 p. m. on  the wrong side and the Nizam was two cables on the right side at about  6  p.  m.;  but by 6-45 p. m.,  the  two  boats  were opposite each other near about the mid-line of the  channel, the distance between the two being then a little more than a mile;  (2) the Nizam did not take any hard starboard  action at  6-45  p.  m.- rather she continued to steer  to  a  port course till about 6-48 p. m. and probably went over the mid- line  into  the  wrong side of the channel ;  (3)  when  the Kalawati signalled with the Aldis lamp, she 1005 noticed  that  the Nizam was steering to port and was  on  a

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course  converging on the Kalawati and at about 6-48  p.  m. the  Kalawati took avoiding action by turning hard  to  port and  gave a signal to that effect; (4) the Nizam  then  took starboard  action  to  get back to the  right  side  of  the channel and get out of the way of the Kalawati; and (5) when McLure  came  on the bridge at about 6-49 p. m.  he  ordered full  speed  astern -but it was too late and  the  collision took place at about 6-51 or 6-52 p. m. On the aforesaid findings there is little difficulty left in adjudging  where the responsibility lies for the  collision. As  we have said earlier., the responsibility lies with  the Nizam. It  is necessary to notice now, very briefly, two  decisions on which learned counsel for the appellant has relied: " The Tioga " (1) and the " Empire Brent " (2).  In the Tioga  the question for consideration was the liability for damages  in respect  of a collision which occurred in the swept  channel of the N. E. Coast of England between the Pundit, a ship  in the port column of a south-bound convoy of eight ships,  and the  Tioga, an independent north-bound ship.   The  decision proceeded on the footing that south bound ships were under a strict  duty to keep within the western half of the  channel and  north-bound within the eastern half, thus passing  each other  port to port.  Down the centre of the  channel  there was  a  line  of flashing buoys four or  five  miles  apart. There was a general prohibition of navigation lights,  which made  the strict observance of the; rule of the road in  the swept  channel  exceptionally  imperative.   The  night  was overcast and dark, and there was drizzling rain  diminishing visibility.   In those circumstances, it was found that  the Pundit,  instead of keeping to her right  water,  trespassed into  the Tioga’s water, and furthermore when she first  saw the  Tioga’s  red at a quarter of a mile away,  her  instant duty  was to starboard out of the Tioga’s way so as to  pass port to port.  This the Pundit failed to do.  Therefore, the Pundit was held responsible on two grounds, which Scott,  L. J., explained in the following words:- (1)  (1945) 78 Ll.  L. Rep. 1 (Lloyd’s List Law Reports). (2)  (1948) 81 Ll.  L. Rep. 306 (Lloyd’s List Law Reports). 1006 "  The  two ships were either meeting or  crossing;  and  in either case it was the Pundit’s duty to pass the Tioga  port to  port.  If they were crossing ships it was also her  duty to keep out of the way of the Tioga and go under her  stern; if  meeting  ships,  simply  to  starboard  her  helm.    In addition,  there was the special duty of the Pundit in  that channel to regain her right water.  She had been  blundering out  of  it  and  endangering north  bound  traffic;  and  I entirely  agree with the learned Judge’s view that for  that reason  alone she was seriously to blame; and that  position of  itself  would  entitle the Tioga to  expect  her  to  be actually  on a starboard helm, correcting her error, at  the moment she put her lights on ". We  do  not think that the decision in the Tioga is  of  any great assistance to the appellant.  On our findings, it  was the  duty  of  the  Nizam to keep out  of  the  way  of  the Kalawati; and at 6-48 p.m. the Nizam was in all probability. in her wrong water and the Kalawati in her right water -  at any  rate - both were near the mid-line of the channel,  and in  these circumstances, the Nizam’s action in  starboarding after  she  had seen the Kalawati, turn to  port  cannot  be justified either on the principles laid down in the decision aforesaid or on the provisions of the rule of the road in  a narrow channel. In  the Empire Brent the collision took place in  the  river

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Mersey  between  the steamship Starmont  and  the  steamship Empire Brent.  It was found that so far as the Starmont  was concerned,  she deliberately set a course which  meant  that for  most  of  the  way up the  river  she  was  necessarily proceeding  on  the wrong side of the river  for  her.   The Empire  Brent had just left the Princes Landing  Stage  when she  had to cope with the situation created by the  approach of  the Starmont.  In these circumstances it was  held  that the  Starmont was wholly in the wrong for coming up  on  the eastern  side of the river and for breaking in that way  the narrow channel rule which prevails in the Mersey.   Willmer, J., said:- "  I find it difficult to find words sufficiently strong  to condemn the action of a man who persists in coming up on the wrong side of the river--especially as this 1007 action  of the Starmont was quite deliberate and was  merely for the purpose of her own convenience." Dealing  with  the alternative case  that  the  starboarding action  of  the  Empire Brent was the  whole  cause  of  the collision even if the Starmont was wrong in coming up on the eastern side of the river, the learned Judge observed: "  That  alternative  way of putting  the  case  has  become academic, having regard to my finding that the vessels  were green  to  green at any rate up to the time when  they  were about three - quarters of a mile apart.  But, lest it should be  thought that I agree with it, I should like to take  the opportunity  of  saying  that I regard  that  contention  as wholly wrong.  As I understand the principles which apply in narrow channels, it has been laid down for many, many  years that, although the crossing rule does from time to time have to  be  applied in narrow channels (when,  for  instance,  a vessel which is crossing the channel has to act in  relation to  a  vessel which is proceeding up or down  the  channel), nevertheless,  when  vessels  are  approaching  each  other, navigating respectively up and down the channel, it is  Art. 25  of -the Collision Regulations which applies and  applies exclusively.   There  is  no room in such  a  situation  for applying  the provisions of the crossing rule. at  the  same time  as the provisions of the narrow channel rule,  because the  requirements under the rules are different.  I have  no hesitation in saying that as between a vessel coming up  and a vessel going down, approaching each other in that way in a narrow channel like the Mersey, the narrow channel rule, and the  narrow channel rule only, is the rule which has  to  be applied.   However,  that is a digression,  because,  having regard to my findings of fact, the point is academic." Learned counsel for the appellant has placed strong reliance on the aforesaid observations and has contended that in  the present case also the provisions of the narrow channel  rule should apply and not those of the crossing rule.  We do  not see  how  a strict or exclusive application  of  the  narrow channel  rule will help the appellant in the  present  case. We have found that the Nizam was in her right water at about 6 p.m. 1008 but  she had altered her course to port later and  at  about 6-45  p.m. she was near the mid-line and at 6-48  p.m.  when she starboarded in answer to the Kalawati’s port action, she was  in  all  probability in the  wrong  water.   The  Nizam cannot, therefore, say that if the narrow channel rule  only applied,  she  is bound to succeed.  We do  not,  therefore, think  that  the ratio of the decision in the  Empire  Brent helps to establish the case of the appellant. In view of our findings, we consider it unnecessary to  deal

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with  the  alternative  claim  of the  appellant  as  to  an apportionment-  of the blame for the collision in  question. We  do not think that the Kalawati was to blame  for  taking port  action  when she did, and we have already  stated  our reasons therefor.  There is a further difficulty in the  way of  the  appellant.   It  is  true  that  the  question   of contributory  negligence  was one of the issues  before  the learned  trial Judge, but in the view which he took  of  the evidence,  he considered it unnecessary to decide  it.   The appeal was decided on the footing that the Kalawati was  not guilty  of  negligence  and the  entire  liability  for  the collision was that of the Nizam.  The appellant has no doubt contested the correctness of the findings arrived at by  the learned  Judges of the appellate bench; but neither  in  the memorandum  of  appeal  nor in the  statement  of  the  case presented  to  this  Court  did  the  appellant  raise   the alternative  claim  which  it has now  raised.   During  the course  of  the  hearing  of the appeal  in  this  Court,  a petition  was  made for adding a fresh ground of  appeal  in order to raise the alternative claim of an apportionment  of liability for the collision under the rules for the division of loss prescribed under the Maritime Conventions Act, 1911. We do not think that the prayer for an alternative claim can be  allowed at this stage, because on our findings there  is no case for an apportionment of the blame. In the result, the appeal fails and is dismissed with costs. We have already passed orders for the payment of the fees of the   two  assessors,  and  no  fresh  orders  thereon   are necessary. Appeal dismissed.