Toni, The (Cardo)

JurisdictionEngland & Wales
JudgeLORD JUSTICE EDMUND DAVIES,LORD JUSTICE MEGAW,LORD JUSTICE CAIRNS
Judgment Date29 March 1974
Judgment citation (vLex)[1974] EWCA Civ J0329-2
CourtCourt of Appeal (Civil Division)
Date29 March 1974

[1974] EWCA Civ J0329-2

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Edmund Davies,

Lord Justice Megaw and

Lord Justice Cairns.

(Appeal and Cross-appeal from Order of Mr. Justice Brandon, London, dated November 1, 1978.)

The "Toni"

MR G. DARLING, Q.C. and MR N. PHILLIPS, (instructed by Messrs. Thomas Cooper & Stibbard) appeared on behalf of the Appellants (Defendants).

MR B. SHEEN, Q.C. and MR A. CLARKE, (instructed by Messrs. Ince & Co.) appeared on behalf of the Respondents (Plaintiffs).

LORD JUSTICE EDMUND DAVIES
1

The appellants, who are the owners of the ship "Toni" were the defendants below and will be so referred to in this judgment. The respondents (who will be referred to as "the plaintiffs") instituted proceedings in April, 1969, to recover damages in respect of a collision between the two vessels about 25 miles off the East Coast of South Africa on February 14th, 1969. In addition to denying negligence, the defendants counter-claimed for the damage sustained by "Toni" in the collision. In November, 1978, Mr. Justice Brandon held the parties equally to blame, and accordingly each recovered against the other 50 per centum compensation for the damage sustained.

2

By their Notice of Appeal the defendants asked primarily that the plaintiffs be ordered to pay them damages in full, on the ground that they themselves were wholly free from blame. But before us Mr. Darling conceded a measure of blame by the defendants, and (on being invited by the court) intimated that he sought a finding that they were only one-third to blame and not one-half as Mr. Justice Brandon had held.

3

The plaintiffs in their cross-appeal did not seek to escape from the judge's finding that they were partly to blame, but they also seek a finding that they were only one-third to blame. The matter 10 of some moment, for the total damage caused is estimated at about £450,000. Both parties face a formidable task, it being established that this court will not interfere with the decision of the lower court in the matter of apportionment unless it emerges clearly that it was based on some mistake of fact or mistake of law: see, for example, The MacGregor ( 1943 A.G. p. 197). No question of a mistake of law here arises, but it is said that the learned judgemanifestly went wrong on the facts. In this regard the defendants are under the substantial handicap that they were unable to call as witnesses anyone on the bridge of the "Toni" at any material time. They are almost entirely restricted to the task of destructive comment on the evidence adduced by the plaintiffs and assessed by the learned judge who (unlike this court) saw and heard the witnesses.

4

The "Cardo" is a motor tanker 830 ft long end 112 ft. in beam and had a crew of 36 hands. The "Toni" is a motor ship 470 ft. long and 60 ft. in beam and had 36 hands. They were proceeding on interesting courses. While they were still about five miles apart the "Cardo" was proceeding on 0.56°T and was making 15 ½ knots, while the "Toni" was proceeding on 221°T and was making 10 knots, and they would thus have crossed at an angle of 15°. The matter of speed is not a complication for neither vessel made any significant reduction before the collision. By the time it happened, the "Cardo" had made three turns to starboard — from 85°T to 61°, then to 89°, and then a final turn hard to starboard and Mr. Justice Brandon held that the first two were made "at a time when the ships were still a considerable distance apart, a distance to be measured in terms of miles rather than cables." The case for the defendants, on the other hand, was that the "Toni" did not alter course at all, save a turn hard to starboard immediately before the collision.

5

The judge's conclusion that both parties were to blame was based on his findings (1) that both ships were gravely at fault in the matter of lookout, end (2) that each was guilty of a breach of one or more of the Collision Regulations, notwithstanding the defendants' submission that the Regulations were not applicable, asin the circumstances they were not crossing so as to involve risk of collision. The relevant rules are the following:

Rule 19: When two power driven 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.

Rule 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. When, from any cause, the latter 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 (See Rules 27 and 29).

Rule 22 "Every vessel which is directed by these Rules to keep out of the way of another vessel shall, so far as possible, take positive early action to comply with this obligation, and shall, if the circumstances of the case admit, avoid…… crossing ahead of the other."

6

Mr. Darling sought to persuade the court that Rule 21 was the most important of those Rules, and that, if it is breached, this fact of itself should attract to the transgressing party the greater blame. I decline to take any such short-cut. The Collision Regulations constitute an interlocking code of good seamanship, the importance of any particular Rule depending upon the infinite variety of circumstances which can arise and determinable in the light of those circumstance which have in fact arisen in theparticular case being considered. As will appear from the passages in his judgment which I shall later quote the learned Judge held the "Toni" as the give-way vessel guilty of breaches of Rules 19 and 22, the "Cardo" guilty as the stand-on vessel of falling to keep her course and speed as required by Mule 21. Before us Mr Darling has accepted that the "Toni" was at fault in two respects: (a) faulty look-out, and (b) failure to comply with Rule 22 by continuing to cross ahead rather than by giving way by, for example, a starboard turn. But the essence of the defendants' appeal is that the learned judge wrongly held that the "Toni" had turned about 20° or more to port before the collision. Mr. Darling submits that this was an unwarrantable finding, that it was crucial to the 50-50 apportionment, and that once that finding is reversed the altered apportionment he seeks should follow.

7

How, then, did the learned judge arrive at that finding? He began with the undoubted fact that what happened was that the stem and starboard bow of "Toni" struck the port side of "Cardo" Just abaft the bridge superstructure at an angle of between 45° and 50° loading forward on the "Cardo". He than dealt with the evidence of the Master of the "Cardo" (whom he described as an impressive, truthful and reliable witness) that about five or six seconds after the collision he looked at the compass and observed that the heading was 163°, and this after a hard port wheel action which he had ordered shortly before the collision had checked, to some extent the "Cardo's" starboard swing, and that the Master inferred from all those footers that its heading at the moment of collision had been about 150°. This evidence of the Master was strongly challenged below, and the judge was invited to hold that the heading of the"Cardo" was of the order of 180°. But the judge rejected the invitation, and he said that he had no hesitation in holding that the 150° was about right. Bearing that heading in mind and the 46° to 50° angle of blow, it followed, in Mr. Justice Brandon's view, that the heading of the "Toni" at collision must have been, not about 240° as its Master had claimed in his signed statement, but between 195° and 200°. Taking the latter figure, as she had originally been proceeding at 221°T, the learned judge found himself forced to the conclusion that at some time before the collision the "Toni" had altered course to port by not less than 20°, and that this had been quite unwarranted. Indeed, the defendants made no attempt to justify any such manoeuvre. Instead, Mr. Darling attacks this finding of the learned judge, in the first place, by way of challenging the evidence of the Master of the "Cardo" that she was heading 150° at the collision. He analysed the evidence of the "Cardo's" officer of the watch, Mr. Kvastad, who made an unfavourable impression on the judge. He submitted that the Master's 153°T might have been a mistake for 183°, and stressed that when the Master went on the bridge at 21.20 she was hard on starboard and was then at 103°, and by the time the collision occurred two minutes later she would have turned another 90°. Mr. Darling went on to examine such direct evidence as there was in support of a port turn by the "Toni", particularly that of Mr. Kvastad, who had merely said that when the "Toni" was 4.7 miles off she appeared to steer slightly to port, whereupon he changed the course 5° to star-board to give better clearance, and that again before he changed to 90° it appeared that the "Toni" altered course slightly to port. He criticised the quality of that evidence and submitted that theproper conclusion was that the "Toni" did not alter course and had done nothing to induce the "Cardo" not to keep its course and speed as Rule 21 required to do.

8

The statement of the Master of the "Toni" Mr. Djurovio, afforded scant support to Mr. Darling's submission. He said he came on watch at 20.000 and an A.B. was on the bridge with him. At 21.20 the A.B. drew his attention to a single white light approximately 10° on his starboard bow and about 13 ½ miles away. At a later stags he judged that the "Cardo" was set to pass the "Toni" starboard to starboard at a distance of about one mile. At no time did he think it necessary to take precise bearings and distances, and the first time he had reason to think anything was wrong was when the A.B. shouted out...

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