Tuff v Warman
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1858 |
| Date | 01 January 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 607
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, 5 C. B. N. S. 573.
tuff v. waeman. June 9th, 1857. [Affirmed in Exchequer Chamber, 5 C. B. N. S. 573.] In an action for an injury to the plaintiff's vessel in consequence of a collision with a vessel under the control of the defendant,-there being conflicting evidence of negligence on the one side and on the other,-the jury were told, that, if the negligence or default of the plaintiff was in any degree the direct or proximate cause of the damage, he was hot entitled to recover, however great might have been the negligence of the defendant: but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might by the exercise of ordinary care have avoided it:-Held, a proper direction. -The Merchant-Shipping Act, 1854, 17 & 18 Viet. c. 104, leaves the rule of law upon this subject as it was before; the only effect of the 296th and 298th sections being, to bring the non-compliance with the Admiralty sailing regulations within the category of negligence. This was an action in which the defendant was charged with having so negligently navigated a steam-vessel in the river Thames as to run against and damage the barge of the plaintiff. . [741] The defendant pleaded,-first, not guilty,-secondly, that he had not the control or management of the steamer. The cause was tried before Willes, J., at the sittings in London after last Hilary Term. The,facts were as follows:-The defendant was in charge of a steam-vessel called the "Celt," as pilot, coming up the river, some miles below Gravesend. The plaintiff's sailing-barge was proceeding with a fair wind down the river, having two men on board, one of whom was at the helm. It did not appear where the other was; but it was clear that they kept no look-out, for, the man at the helm stated that, the sail being in his way, he could not see forward without stooping, and he admitted, that, although he saw the steamer coming when a considerable distance off, he did not look out again until she was within two or three yards of him, and when it was too late to avoid the collision. The steamer, it appeared, was on her right side, according to the Admiralty regulations. The defendant stated that he was standing on the poop of the steamer, and saw the barge when about 300 yards distant, and 608 TUFF V. WARMAN 2 C. B. (N. S.) 742. immediately ported his helm; that, if the barge had done the same, the collision would have been avoided; that he thought the barge put her helm a-starboard; and that, finding a collision inevitable, he put his helm hard a-port, and backed his engines, but too late. The defendant's evidence was corroborated by that of the captain and the mate of the steamer. On the other hand, two seamen, who were on board a yawl, and who saw the whole transaction, distinctly swore that the steamer's helm was not ported. On the part of the defendant, it was insisted that the plaintiff was not entitled to recover, inasmuch as he had failed to comply with the sailing regulations enforced by the statute 17 & 18 Viet. c. 104, ss. 296, [742] 297, 298(a)*; and that, assuming that the defendant had been guilty of negligence, still, if there was any negligence on the part of the plaintiff, he could not maintain the action. In leaving the case to the jury, the learned judge told them, that, if both parties were equally to blame, and the accident the result of their joint negligence, the plaintiff could not be entitled to recover; that, if [743] the negligence or default of the plaintiff was in any degree the proximate of the damage, he could not recover, however great may have been the negligence of the defendant; but that, if the negligence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might not by the exercise of ordinary care have avoided it; that, as the people on board the plaintiff's barge were keeping no lookout, the defendant should have gone to star-board, or reversed his engines, and so avoided the collision : and he referred for an illustration to the case of Davies v. Mann, 10 Exch. 546 ; and he concluded thus,-" Do you consider that the absence of a lookout was negligence on the part of the plaintiff? If so, you will consider whether it directly contributed to the accident. If you think that the plaintiff directly contributed to the accident, you will find for the defendant; but, if you think that the defendant by his negligence directly caused the injury, you must find for the plaintiff." The jury returned a .verdict for the plaintiff, damages 1061.(a)2. Collier, Q. C., in Easter Term last, obtained a rule nisi for a new trial on the ground of misdirection " on the subject of negligence," and that the verdict was against evidence. When the rule came on for argument, Cresswell, J., objected that the grounds (a)1 The 296th section enacts, that, " whenever any ship, whether a steam or sailing ship, proceeding in one direction, meets another ship, whether a steam or sailing ship, proceeding in another direction, so that, if both ships were to continue their respective courses, they would pass so near as to involve any risk of a collision, the helms of both ships shall be put to port, so as to pass on the port side of each other; and this rule shall be obeyed by all steam-ships and by all sailing ships whether on the poit or starboard tack, and whether close-hauled or not, unless the circumstances of the case are such as to render a departure from the rule necessary in order to avoid immediate danger, and subject also to the proviso that due regard shall be had to the dangers of navigation, and, as regards sailing ships on the starboard tack close-hauled, to the keeping such ships under command." The 297th section enacts that "every steam-ship, when navigating any narrow channel, shall, whenever it is safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such steam-ship." The 298th section enacts, that, "if, in any case of collision, it appears to the court before which the case is tried that such collision was occasioned by the non-observance of any rule for the exhibition of lights or the use of fog-signals issued in pursuance of the powers hereinbefore contained (s. 295), or of the foregoing rule as to the passing of steam and sailing ships (s. 296), or of the foregoing rule as to a steam-ship keeping to that side of a narrow channel which lies on the starboard side (s. 297), the owner of the ship by which such rule has been infringed shall not be entitled to recover any recompense whatever for any damage sustained by such ship in such collision, unless it is shewn to the satisfaction of the court that the circumstances of the case made a departure from the rule necessary." (a)2 Being the amount of the penalty of the bond given by the defendant, and the sum payable to him for pilotage in respect of the voyage on which he was engaged at the time as pilot. See 17 & 18 Viet. c. 104, s. 367. 2 C. B. (N. S.)744. TUFF V. WAEMAN 609 upon which the rule had been granted were not so stated therein as to comply [744] with the 33rd section of the Common Law Procedure Act, 1854 (17 & 18 Viet. c. 125). Collier. It was impossible to state shortly what was the particular objection to the summing-up of the learned judge. Error pervaded the whole of it, though the part which was the most objectionable was that in which the learned judge told the jury that, " if they were of opinion that the plaintiff by his own negligence directly contributed to the accident, they must find for the defendant; but that, if they thought that the defendant directly caused the injury, they must find for the plaintiff." It was not properly a question of directly or indirectly contributing: as to the plaintiff's negligence, it is submitted that it was incorrect to put it to the jury to say whether it directly caused the accident; but, assuming that the defendant had been guilty of negligence, the proper question for them to consider was, whether the plaintiff might not by the exercise of ordinary care have avoided the collision; for, to use the language of Lord Campbell's dictum in Lowell v. The General Steam-Navigation Company, 5 Ellis & B. 195, 203, the plaintiff "cannot cast upon the defendant the necessity of taking extraordinary care." See post, p. 751. Honyman (with whom was J. Wilde, Q. C.) now shewed cause. The jury were directed in strict accordance with the rule laid down in all the cases upon this subject. The statute 17 & 18 Viet. c. 104, has made no alteration in the law in this respect: it merely re-enacts what was the Admiralty rule before. In Lowell v. The General Steam-Navigation Company, 5 Ellis & B. 195, it was held that a plaintiff cannot recover at law for mischief done to his ship by its being struck by the defendant's ship, in consequence of the latter im-[745]-properly managed, if it appear that the plaintiff's ship was improperly managed, and that such improper management directly contributed in any degree to the accident, however much the defendant may also be in fault: though, if there be negligence on the part of the plaintiff only remotely connected with the accident, the question is, whether the defendant by ordinary care and skill might have avoided the accident. The statute 14 & 15 Viet. c. 79, s. 26, gave power to the Admiralty to make such regulations as they might think fit requiring the exhibition of lights by steam or sailing vessels: s. 28 enacted that, in case of a collision by two vessels, if it was occasioned by the non-observance of such rules, the owner of the vessel by which the rule had been infringed should not be entitled to recover for the damage, unless it appeared to the court that the circumstances justified a departure from the...
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