The Hurunui; Foyster v New Zealand Shipping Company, Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1939 |
| Date | 18 July 1939 |
| Court | Court of Appeal |
Court of Appeal
Scott, Finlay, and Du Parcq, L.JJ., assisted by Nautical Assessors
The Hurunui; Foyster v. New Zealand Shipping Co., Limited
The Bywell CastleDID=ASPMELR 4 Asp. Mar. Law Cas. 207 (C. A.) 41 L. T. Rep. 747 (1879) 4 P. D. 219
The TasmaniaDID=ASPMELR 6 Asp. Mar. Law Cas. 517 (H. L.) 63 L. T. Rep. 1 (1890) 15 App. Cas. 223
The UtopiaDID=ASPM 7 Asp. Mar. Law Cas. 408 70 L. T. Rep. 47 (1893) A. C. 492
The HerangerDID=ASPM 19 Asp. Mar. Law Cas. 250 160 L. T. Rep. p. 241 (1939) A. C. 34
Collision Claim for loss of life by personal represetative of member of crew Vessels on crossing courses
ASPINALL'S MARITIME LAW CASES. 333 CT. or APP.] THE HURUNUI; FOYSTER v. NEW ZEALAND SHIPING Co. [CT. OF APP. Supreme Court of Indicature. COURT OF APPEAL. June 20, 21, 22 and 23, and July 18, 1939. (Before SCOTT, FINLAY, and DU PARCQ, L.JJ., assisted by Nautical Assessors.) The Hurunui; Foyster v. New Zealand Shipping Co., Limited (a) Collision-Claim for has of life by personal representative of member of crew-Vessels on crossing courses-Duty of stand-on vessel where no action taken by give-way vessel- Art. 21, Note, of Regulations for Preventing Collisions at Sea, construed. This was an appeal from a decision of Sir Boyd Merriman, P. in an action to recover damages under the Fatal Accidents Act, 1846, and the Law Reform (Miscellaneous Provisions) Act, 1934, instituted in the Admiralty Court by M. F. F., the widow of a member of the crew of the Lowestoft steam drifter R. who was drowned in a collision between the R. and the liner H. which occurred on the morning of the 19th November, 1937, off Lowestoft in hazy weather, and as a result of which the R. was sunk. The plaintiff's case was that, between 9 and 10 a.m. on the day in question, the R. (95 tons gross), which was bound from Lowestoft to fishing grounds in the North Sea, was about six miles to the southward and eastward of Lowestoft. According to the only survivor of the crew of ten hands of the R., the cook, the weather at the time was hazy, visibility being moderate; there was a light wind, and the tide was flood of a force of about one knot and setting to the southward; the R. was on a southerly and easterly course and was proceeding at full-speed ahead, making about eight knots through the water. In these circumstances, he observed a steamship which afterwards proved to be the H., about one to one-and-a-half miles distant and bearing, as he thought, a little forward of the R.'s starboard beam. The R. maintained her course and speed, but the H., without taking any or any sufficient action to aid in averting a collision, came on and with her stem struck the starboard side, well aft, of the R., causing the R. to sink almost immediately afterwards with the loss of all hands excepting himself. Whilst admitting that the R. wait to blame for the collision, the plaintiff alleged that those on board the H. were also negligent in that they failed to keep a good look-out; failed to take such action as would best aid to avert a collision, when collision could not be avoided by the action of the R. alone; failed to ease, stop or reverse their engines in due lime or at all; failed to give any warning of their approach ; failed to indicate their manoeuvres by the appropriate or any whistle signal; and failed to comply with the Note to Art. 21 and with Arts. 27, 28, and 29 of the Regulations for Preventing Collisions at Sea. The defendants denied liability and claimed that the collision was solely due to the negligent navigation of the R. Their case was that shortly before 0.24 a.m. on the 19th November, 1937, the H. (9315 tons gross) whilst on a voyage from London to the River Tyne partly laden with a general cargo, was in the North Sea about five miles E.S.E. of Lowestoft High Light. The wind was southeasterly, a moderate breeze, there was a slight haze and the tide was setting to the southward and was of about two knots force. The H. was on a course of N. 15"?? E. true, she was making about eleven knots through the water and a good look-out was being kept on board her. In these circumstances a number of fishing vessels were observed by those on board the H. off Lowesloft, and, as the H, got nearer to them, those on board her particularly observed the R. distant about one to one-and-a-half miles, bearing about two-and-a-half to three points on the H.'s port bow, and on a course crossing that of the H. at approximately right angles. The H. kept her course and speed, those on board her keeping a careful watch of the R. until it was seen that a collision could not be avoided by action on the R. alone, when the wheel of the H. was put hard-a-starboard and a signal of one short blast was sounded on her whistle. The engines of the H. were stopped and immediately afterwards put full-speed astern, three short blasts being sounded on her whistle, and a double ring of full-speed astern was given on her telegraph, but the R. came on without taking any steps to avoid a collision and struck the stem of the H. with her starboard side about amidships. Very shortly afterwards the R. sank. The defendants blamed those un board the R. for negligently failing to keep a good look-out; failing to keep clear of the H. ; attempting to cross ahead of the H.; failing to ease, stop or reverse the engines of the R. in due time or at all, and failing to comply with arts. 19, 22, 28, and 29 of the Regulations for Preventing Collisions at Sea. In the court below the learned President had held that, whilst the R. was admittedly to blame, the H. (a) Reported by J. A. PETRIE, Esq., Barrister-at-Law. 334 ASPINALL'S MARITIME LAW CASES. CT. OF APP.] THE HURUNUI; FOYSTER v. NEW ZEALAND SHIPPING Co. [CT. OF APP. was also to blame in that she had failed to comply with the Note to Art. 21 of the Collision Regulations by not reversing her engines soon enough. According to art. 19 of the Collision Regulations, when two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side must keep out of the way of the other, and by art. 22 every vessel which is directed by the Rules to keep out of the way of another vessel must, if the circumstances of the case admit, avoid crossing ahead of the other. Art. 21 is as follows : " Where by any of these Rules one of the two vessels is to keep out of the way, the other shall keep her course and speed. Note.-When in consequence of thick weather or other causes, such vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision." Art. 27 provides that in obeying and construing the Rules, due regard must be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the Rules necessary in order to avoid immediate danger. Held, (1) that the learned President was right in holding that this was not a case in which art. 27 could be invoked, but (2) that the language of the Note to art. 21 assumes that the give-way ship will continue to endeavour to perform her duties, especially her duty under art. 19, and therefore that the "aid" of the stand-on ship should primarily be directed to helping the give-way ship to carry out that duty, that interpretation of the Note being supported by the words "alone," "also" and "aid." The Note leaves the duty of the give-way ship unimpaired. (3) That if the pilot of the H. was wrong in not reversing until he knew the R. was not going to alter course (and the court was not prepared, on his explanation of his reasons for the (wheel) action which he took, to hold that he was wrong), it would not be right to treat such an error of judgment, if error there was, as a ground for judicial condemnation of him for negligence, and that the pilot could not be blamed for deciding to abstain from reversing at the first moment when he recognised that action under the Note was incumbent on him nor for postponing it till he knew that the need for keeping maximum steering control of his ship had passed, as a consequence of the wholly unexpected refusal of the R. to alter course. (4) That upon the evidence, as soon as ever it was plain to the pilot of the H. that the R. was not going to alter course in response to his signal of one short blast, he went full astern, and that he did so without any such delay as could be regarded as blameworthy in the Admiralty Court. (5) That accordingly the Note to art. 21, as construed by the Court of Appeal, did not warrant the decision of the learned President; that the R. was alone to blame; and that the appellants were entitled to judgment, with costs both in the Court of Appeal and below. CLAIM for loss of life in collision. The plaintiff was Mrs. May Florence Foyster, of Kessingland, who sued the defendants on behalf of herself and her five children for damages in respect of the death of her husband, William Foyster, the engineer of the Lowestoft steel screw steam drifter Reclaim, drowned when that vessel sank after a collision with the defendants' steamship Hurunui of Lowestoft on the morning of the 19th November, 1037. The defendants were the New Zealand Shipping Company, Limited, owners of the Hurunui. The Reclaim, a vessel of 05 tons gross, 86.3ft. in length and 18.6ft. in beam, fitted with engines of 84 h.p. nom. and manned by a crew of ten, all, save one, of whom lost their lives in the collision, was bound from Lowestoft to fishing grounds in the North Sea and, according to the account given by her cook, the only survivor, was on a southerly and easterly course, making, at full speed ahead, about eight knots through the water. The Hurunui, a steel screw steamship of 9315 tons gross and 5808 tons net register, 470ft. in length, 62ft. in beam, fitted with double reduction geared turbines of 1018 h.p. nom., and manned by a crew of seventy-three bands all told, was en a voyage from...
To continue reading
Request your trial