Owners of SS. "Hontestroom" v Owners of SS. "Sagaporack."

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Sumner,Lord Phillimore,Lord Blanesburgh
Judgment Date20 Jul 1926
Judgment citation (vLex)[1926] UKHL J0720-2

[1926] UKHL J0720-1

House of Lords

Viscount Dunedin.

Lord Sumner.

Lord Phillimore.

Lord Carson.

Lord Blanesburgh.

Owners of SS. "Hontestroom"
and
Owners of SS. "Sagaporack";
Owners of SS. "Hontestroom"
and
Owners of SS. "Durham Castle".

After hearing Counsel, on Friday the 30th day of April last (Rear-Admiral Arthur C. S. H. D' Aeth, C.B., and Captain A. H. Ryley, an Elder Brother of the Trinity Corporation, being present as Nautical Assessors), upon the Petition and Appeal of the Owners of the Steamship "Hontestroom," praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 27th of July 1925, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Owners of the Steamship "Durham Castle," lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 27th day of July 1925, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Decree of the Admiralty Division of the High Court of Justice, of the 31st day of March 1925, thereby Reversed, be, and the same is hereby, Restored And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Admiralty Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Sumner .

My Lords,

1

This collision took place in the Thames between the plaintiffs' steamer "Hontestroom," outward bound and light, and the defendants' steamer "Sagaporack,' inward bound for Millwall Dock and laden, on a December evening after dark at a point fixed by the learned President as about 100 feet south of midchannel, and agreed to have been slightly to the east of a line drawn between the lower entrance to the East India Dock Basin and Blackwall Point. The wind's direction was uncertain; its force was very light. The tide was neap and near high water.

2

The ships collided not far from end on. The "Hontestroom's" stem and port bow and the port bow of the "Sagaporack" came into contact and the latter vessel was cut into and went to starboard. The angle between them, as measured on an examination of the damage, was some 30°; as marked in the witness box by the master of the "Hontestroom" it was considerably finer. The "Sagaporack" immediately afterwards came into violent contact with the starboard quarter of the "Durham Castle," doing damage. Lord Merrivale, after a protracted trial, held the "Sagaporack" solely to blame. The Court of Appeal puts all the blame for both collisions on the "Hontestroom." Hence these appeals by the "Hontestroom," the "Sagaporack" being respondent in the first and the "Durham Castle" in the second. If the "Hontestroom" is exonerated from blame, both appeals succeed.

3

I think that the crucial matters in the case must be admitted to be the position and manœuvres of the two vessels during the short time between their first being visible to one another and the collision, and especially when somehow such a change took place at last as brought them together instead of passing port to port. Their prior courses and speeds, whistle signals and helm and engine actions are no doubt questions which go to test the credit of the witnesses, but are otherwise only matters introductory to the crucial incidents which may possibly throw some light upon them. Accepting, as both parties now do, the position fixed for the collision, it is clear that one pilot or the other (if not both) starboarded at the wrong time, and too much; otherwise the ships would not have come into collision.

4

The answers to Questions 156 and 157 on the one side and to Questions 1073 to 1086 on the other make this the plain issue. The two Thames pilots, who were respectively in charge, must therefore between them have known quite well, who it was that starboarded into the other. I will not say that it was a case of hard swearing, for I think that the crowded condition of the river at the moment may have led the "Sagaporack's" pilot to be rather confused, but in proportion as this relieves him from the imputation of false swearing it tends to discredit his navigation. There was on the other hand no particular reason why the "Hontestroom's" pilot should have been hustled. He admitted a certain amount of starboarding and explained it, I think, quite plausibly. If he is believed, this starboarding did not affect the collision. He also said that at the last moment the "Sagaporack" appeared to be acting under a port helm, as if trying to correct the consequences of her excessive starboarding, and this manœuvre appears to be an essential part of the "Hontestroom's" case, if the position in which the two ships came together is to be reconciled with her claim to be free from blame.

5

The learned President, after seeing both pilots, accepted the story of the "Hontestroom." Though he does not expressly say so, it is evident that he regarded the "Hontestroom's" pilot as an honest and a credible witness and, conversely, that he did not accept the story of the pilot of the "Sagaporack," not thinking that his memory could be trusted. He also accepted the evidence of the "Hontestroom" that the "Sagaporack" was beginning to port back again, just before the collision occurred, and he did so in spite of the fact that the "Hontestroom's" Preliminary Act made no mention of this porting. I therefore think, for my own part, that the real issue in this case is, whether the Court of Appeal was justified in laying aside the learned President's view as to the relative credibility of the witnesses, and the conclusions of fact which he rested thereon, and in reviewing afresh the whole of the evidence, so as to form their own opinion without regard to these appreciations which he had formed.

6

The Court of Appeal was of course fully alive to the consideration that he had had the advantage of seeing the witnesses, and Bankes, L.J., says that the members of the Court "hesitated" accordingly before arriving at a different conclusion, though he alone gives his ground for doing so in general terms. He says (Rec., p. 312):—

"It is, put briefly, that the case is not one in which the learned judge selects one witness, and says "here is a man who is not only honest but is entirely reliable on all points," and then selects another, and says "this man has not tried to tell the truth, or he is so inaccurate a witness that his evidence is of no importance"."

7

Now it is true that the learned President does not use these formulæ, but he speaks of the two pilots in a way, which differs from them only in form. He says (Rec. p. 260):—

"I have coins back to the human factor, and I consider what is the extent, in which I ought to accept the evidence on one side and on the other…" (p. 261). "I have considered whether I ought to have been minded, as I was minded, to believe the pilot of the 'Hontestroom,' and I have come to the conclusion that, believing him as I did when I heard him, I was warranted in believing him that he was proceeding at the speed which he states."

8

He dwells (Rec., p. 262) on this pilot's frankness and honesty in another matter, and he nowhere gives as his reason for not accepting some of the details of his evidence, that he thought him in this respect an unsatisfactory witness. Contrast this with his observations on the evidence of the master of the "Sagaporack" (p. 258), "if I could accept it at its face value," and (p. 259), "if there is anything which is clear upon the case with regard to the place of the collision," it is that it was not where this witness "insisted" (p. 258) that it was. He says again of the "Sagaporack's" witnesses generally (p. 261):—

"The real question is whether effective continuous port helm action was interposed after his (the 'Hontestroom' pilot's) starboard helm action for the sailing barge. If effective continuous helm action was interposed, then the account given me by the 'Sagaporack' is not the correct account, because what is required for their case is starboard helm action of a relatively violent kind, which threw the 'Hontestroom' off her course. … (p. 262). I attended to the several witnesses and the conclusion at which I arrived, and of which I am convinced, is that, after the slight starboarding action for the sailing barge, the pilot of the 'Hontestroom' did take steady and continuous port helm action for what, in the circumstances of the case, is a substantial period of time."

9

It seems to me that the difference between what the learned President said and what Bankes, L.J. dwells on his not having said is only one of words.

10

The Lord Justice then goes on to say that there is a point, not touched by the learned President, which in his own opinion is the turning point in the case against the "Hontestroom," and is what leads him to his conclusion that all the blame was hers. After setting out her case at length he says (p. 314):—

"the one significant fact about the story, to my mind, is that according to that story the collision could not have happened but for the porting of the American vessel within a vessel's length of the...

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