The Treherbert
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1933 |
| Date | 12 December 1933 |
| Court | Court of Appeal |
Shipping - Collision - Thames Estuary - Navigation round N.E. Spit Buoy - Crossing Rules - Narrow Channel Rule - Practice of Pilots -
By the practice of pilots navigating in and out of the Thames estuary, steam vessels rounding the N.E. Spit buoy from the southward to proceed up river pass outside the buoy at a sufficient distance to the northward to enable an outward bound vessel to pass between them and the buoy port to port.
Two steam vessels, the A., inward bound, and the T., outward bound, got into collision about 400 yards to the northward of the buoy. The T., which had the A. on her own starboard side, and, therefore, under the crossing rule (art. 19) had the duty to keep out of the way, alleged that the narrow channel rule (art. 25) and not art. 19 applied, and that the A. was to blame for being too close to the buoy and for not keeping to her own starboard side of the channel, the southern limit of which was the buoy.
Langton J. held that it was impossible to apply art. 25 to waters which were defined only by one or more buoys and which had on the other side the whole of the North Sea; that art. 19 applied, and that the T. was to blame for not keeping out of the way. He found, however, the A. also to blame, not for having been set down by wind and tide closer to the buoy than she had intended, but under the Note to art. 21, which provides that when the vessel which has the duty of keeping course and speed under the crossing rules “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”; and in the result the T. was held three-fourths to blame and the A. one-fourth. On appeal:—
Held, (i.) that the crossing rule and not the narrow channel rule applied; (ii.) that the practice did not exclude the crossing rule, but was in fact the direct consequence of the group of rules of which art. 19 was one; for, by art. 22 the vessel which is to keep out of the way “shall …. avoid crossing ahead of the other,” and, if she does not cross ahead, she will ultimately pass port to port; (iii.) that on the facts it appeared that with close navigation there was room for the T. to pass between the A. and the buoy, but (iv.) that, if there was not room, although a vessel ought not as a general rule to pass inside a channel buoy, the T., whose draught enabled her to do so, should, to avoid immediate danger, have gone inside the buoy; (v.) that up to the time the A. acted the T. could easily have avoided the collision by her own unaided action, and that the T. was alone to blame.
APPEAL and CROSS-APPEAL from a judgment of Langton J. in an action of damage by collision.
The plaintiffs were the owners of the Greek steamship Archon and her master and crew; the defendants were the owners of the British steamship Treherbert. The collision took place, according to the finding of the Court, in the Thames estuary about two cables to the northward of the N.E. Spit buoy, on the night of September 6, 1933. The wind was fresh from the N.E. and the flood tide was setting strongly in the same direction as the wind was blowing.
The Archon, a vessel of 3511 tons gross, was inward bound from the River Plate to London in charge of a Cinque Ports pilot, and at the material time was making about nine knots on a course of N. by W. ½ W. magnetic, intending to pass the N.E. Spit buoy on her port side. The Treherbert, a vessel of 4517 tons gross, was outward bound in charge of a Trinity House pilot. She was on a course of S.E. ½ E. magnetic, making about ten knots, and, having come down the Edinburgh Channel, was intending to pass the N.E. Spit buoy on her starboard hand and then shape her course to round the Downs and proceed down Channel to Cardiff. When the vessels sighted each other's lights, the Treherbert had the masthead and red lights of the Archon open on her starboard bow, while the Archon had the Treherbert's masthead and green lights open on her port bow.
The Archon's case was that she kept her course and speed, but that the Treherbert, continuing on and slightly narrowing her bearing, when distant about a quarter of a mile sounded one short blast. The Archon replied with a short blast and her helm was ordered hard-a-starboard (direct command), as it was judged that the Treherbert could not then avoid collision by her action alone. The Treherbert then sounded three short blasts, but although the Archon also ordered her engines full speed astern and sounded three short blasts the Treherbert came on and with her stem and port bow struck the port side of the Archon, doing so much damage that the Archon shortly afterwards sank.
The Treherbert's case was that she maintained her course, shaping to pass the N.E. Spit buoy close to on her starboard side, in the expectation that the Archon would pass her safely port to port, but that the Archon swung to port towards her; that the Treherbert's wheel was starboarded, her engines stopped and then put full speed astern and the wheel hard-a-starboarded, but that the Archon still came on at high speed, beginning to swing rapidly to starboard, and that the collision then happened.
The case for the Archon accordingly was that she was the stand-on ship and that the Treherbert, in breach of art. 19 of the Regulations for Preventing Collisions at Sea, failed to keep clear of her; the case for the Treherbert, on the other hand, was that the Archon failed to keep to her own starboard side of the channel and/or to enter the Queen's Channel on her starboard side and to pass the Treherbert port to port. In the alternative the Treherbert alleged that the Archon failed to keep her course and speed.
The material articles of the Collision Regulations were the following:—
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.
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.
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. 22. — Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.
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.
Langton J. found both vessels to blame. In the course of his judgment he said that it was a matter of great importance to the nautical world that there should be no kind of ambiguity as to what Rule of the Road at sea applied in this locality. The pilot of the Archon said that he was acting under the crossing rules under which she was the stand-on vessel. On behalf of the Treherbert it was contended that the narrow channel rule was applicable; that the place was in the way of a well known track of steamships bounded by buoys on the western side, the East Margate and N.E. Spit buoys; that by the practice and by good seamanship vessels bound either up or down left those buoys to the westward; that the Archon did not keep sufficiently to her starboard side of the N.E. Spit buoy; and that accordingly the crossing rule, at any rate in the earlier stages, did not apply.
In his Lordship's opinion it was impossible to apply art. 25 to waters which were defined only by one line of buoys, and which had on the other side the whole of the North Sea, and he held that the crossing rules, and no other rule, applied. There was a practice, however, and the Elder Brethren advised him that it was a wise practice, for the incoming vessel to leave the N.E. Spit buoy well clear on her port side in order to leave room for any outgoing ship to make her turn under starboard wheel and pass the incoming ship port to port. It so happened that owing to the force of the wind and tide the Archon was set down towards the buoy more than she had intended. That was a miscalculation, but not, in the circumstances, negligence. He rejected entirely the allegation that the helm of the Archon was ported, as described by the witnesses from the Treherbert. But the Treherbert, which had the Archon's lights in view, was perfectly able to see what was happening, and she, the give-way ship, stood on without taking any steps to get out of the Archon's way until a very late period.
As regards the Archon, she had to keep her course and speed, but although she knew she was being set down too close to the buoy and was making it difficult for the other vessel, she took action so late that she merely altered her heading a point or two and never succeeded in getting her engines astern at all. She was much less blameworthy than the Treherbert, but she was to blame for not acting soon enough under the Note to art. 21. The proportions which he adjudged were: three-fourths to the Treherbert and one-fourth to the Archon.
The defendants appealed and the plaintiffs cross-appealed.
E. A. Digby K.C. and Willmer for the appellants. By the well-established practice of pilots an incoming vessel rounding the N.E. Spit buoy gives an outgoing vessel room to pass between the incoming vessel and the buoy, and the pilot of the Treherbert was entitled to think that he would be left room to pass port to port with the Archon outside the buoy. A duty is cast on all vessels by the practice, and the crossing rules never came into operation at all...
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