Owners of Steamship Australia v Owners of Steamship Nautilus; The Australia

JurisdictionEngland & Wales
JudgeViscount Dunedin,Lord Sumner,Lord Carson,Lord Blanesburgh,.
Judgment Date11 June 1926
Judgment citation (vLex)[1926] UKHL J0611-1
CourtHouse of Lords

[1926] UKHL J0611-1

House of Lords

Viscount Dunedin.

Lord Sumner.

Lord Phillimore.

Lord Carson.

Lord Blanesburgh.

Owners of S.S. "Australia"
and
Owners of S.S. "Nautilus" (The "Australia").

After hearing Counsel, as well on Monday the 19th, as on Tuesday the 20th, days of April last (Vice-Admiral C. Greatorex, C.B., M.V.O., and Captain A. R. H. Morrell, an Elder Brother of the Trinity Corporation, being present as Nautical Assessors), upon the Petition and Appeal of the Owners of the Steamship "Australia," 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 8th of December 1924, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, and that the Petitioners might have the relief prayed for in the Appeal or 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 Cargo lately on board the Steamship "Nautilus," 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 8th day of December 1924, 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 14th day of May 1924, 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.

Viscount Dunedin .

My Lords,

1

The story of the collision which is the origin of this case can be told in a very few words, though the case itself has given rise to a sharp difference of opinion. The ship of the appellants, the "Australia," was proceeding up the Scheldt, on the 20th January 1923, to Antwerp. The ship of the respondents, the "Nautilus," was coming down. It was 8 p.m., and consequently dark. The Scheldt at the place in question forms a sharp turn which may be conveniently likened to the curve of a fish hook when laid on its side and looked at. The "Nautilus" was coming from the shank with the tide, which was ebbing. The "Australia" was coming from the barb, which I assume to be on the left. The "Australia" was going to enter a sluice called the Royers sluice, which was situated just where the curve of the hook begins, and consequently on the port side of the channel as looked at from the deck of the "Australia." She had anchored down stream because the dock was full, but about 7.15 she got notice that the dock was ready to receive her. A tug came down, and about 7.30 she got under way. She was passed by a ship called the "Auckland Castle" which had come out of the Royers sluice. In order to get into the sluice quickly she left her proper water, which was on the starboard side of the channel, and her invasion into the port side was increased by the fact that she sheered and the ebb tide drove her farther in. This happened when she was about half a mile from the Royers sluice. Now the "Nautilus" had been approaching the bend when she saw the "Auckland Castle" coming out of the Royers sluice, and she moderated her speed in consequence, but after the "Auckland Castle" had gone away she resumed her full speed round the corner. Before she got to the corner she saw the lights of the "Australia" across the land. She therefore knew she would have a ship to pass. She sounded one blast and was answered by one blast. That meant at that time that she was going to pass port to port, but when she got round the corner she saw the green light of the "Australia." That meant that the "Australia" was on the wrong side, and at the same time the "Australia" sounded three blasts, that is to say, that she was going astern. The "Australia" did so because when she saw the "Nautilus" and knew that she herself was over on the wrong side she thought she had better stop if possible, and then, after a very short interval, she sounded three blasts again, and then, after a time that has been variously estimated at from one to two minutes, came the collision in which the "Nautilus" was sunk. Now, the learned President who tried the case came to the conclusion that there was no doubt as to the fault of the "Australia." She had got into the wrong water for her own purposes, and she was therefore in fault. No appeal was taken by the "Australia" against his judgment so far as it found her in fault; consequently there could be no question as to that before your Lordships. But then there was the further question: Was the "Nautilus" also in fault and did that fault contribute to the collision? The President consulted his assessors and they answered him that as a matter of seamanship, it was wrong for the "Nautilus" to come round the bend at full speed—7 knots plus the tide, which was reckoned at 3, or, in all, 10 knots over the ground. The "Nautilus," they considered, after she had checked her speed to allow of the "Auckland Castle" to proceed, ought not subsequently to have increased her speed but really rather to have lowered it, keeping in view that she knew she had a vessel to pass, and, further, they considered that it was quite wrong to go on at full speed when those on board of her became conscious of the fact that the "Australia" was in front of them and on the wrong side of the river—for it was proved that they never saw the red light of the "Australia" till a moment before the collision—and when they heard the repeated three blasts showing that the "Australia" thought that something ought to be done. Had the "Nautilus" acted properly in either of these matters they were of opinion that the collision would not have happened. Accordingly the learned President held the "Nautilus" also to blame.

2

The case went to the Court of Appeal. Their Lordships did not differ from the conclusion of the learned President as to the facts of the case, except in so far as they thought that the time which elapsed between the last three blasts and the collision was more likely to be the short time of one minute than the longer time of two minutes. But they then put just the same question to their nautical assessors as had been put by the learned President to his nautical assessors, and received answers to exactly the opposite effect. Upon this the Court of Appeal reversed the judgment of the President, saying no doubt that they were themselves inclined to agree with their assessors, but at the same time saying frankly that but for that advice they would not have ventured to disturb the judgment given.

3

My Lords, in these circumstances we thought it necessary to put to our nautical assessors the same questions, and they gave the same advice as the learned President had received; one of them, indeed, was not as strong as the other on the mere question of the speed round the point per se, but both were very determined as to the fault, which consisted in not slackening speed when the position became apparent and still more when the three blasts were heard.

4

My Lords, this sharp divergence of opinion among the skilled assessors who have assisted the various Courts has more than once given cause for comment. Speaking for myself, I come to the same conclusion as the majority of assessors here have come, and I should have done so unassisted by the opinion of any assessor. But as it stands, the case raises in an acute form the propriety of what has been called an appeal from assessors to assessors. I do not know if anything more useful can be said than what was said by Lord Chancellor Birkenhead in the case of the " Melanie." And I gather that his remarks had the concurrence of the present Lord Chancellor, and were also agreed to in another case by Lords Buckmaster and Phillimore. Yet I do think it necessary to protest against a view which, if I am not doing them injustice, has seemed to prevail in the Court of Appeal in a recent case, to wit, that the Court is bound to pay more attention to the opinion of its own assessors than to that of those who advised the Court below. There is no hierarchy of assessors. They occupy much the same position as do skilled witnesses, with this difference that they are not brought forward as the partisans of the one side or the other. And just as for instance in a patent case, the Court must make its own choice between the views that may have been put foward by one witness or by another, so if assessors differ, the Court must make its own choice. In every case the responsibility is with the Court. Personally, I think that while assessors may be used to the full for information, it is a pity if it can be helped to put a question to them in such a shape that it is tantamount to asking them whether they would find for the plaintiff or for the defendant. I cannot forget that when assessors were introduced, ships were sailing ships, and the navigation of a sailing ship is an art which the landsman cannot be expected to understand without much...

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