"BENBOW" (S.S.) and OSTRICH" (S.S.)
The Merchant Shipping Acts, 1854 to 1876.
IN the matter of the formal investigation held at Westminster, on the 22nd,
23rd, 25th, 26th, and 27th February 1878, before H. C. ROTHERY, Esquire, Wreck
Commissioner, assisted by Commander VISCONTI, R.N., and Captain JONES, as
Assessors, into the circumstances attending the damage sustained by the British
steamships "Benbow" and "Ostrich," both of London, through collision between the
said vessels, in Woolwich Reach, in the River Thames, on the 20th January last.
The Court, having carefully inquired into the circumstances of the
above-mentioned shipping casualty, finds, for the reasons stated in the annexed
judgment, that the collision between the said vessels" Benbow" and" Ostrich" was
due to the misconduct of John Edward Bigg, the pilot, and George Edmund Bone,
the master of the "Ostrich" in allowing her helm to he starboarded, when
approaching the "Benbow," instead of keeping a course down mid-channel, and, if
necessary, porting the helm.
The Court is also of opinion that Thomes Hayes, the master, and William Griggs,
the pilot, of the "Benbow," are to blame for not having stopped and reversed the
engines of that vessel when they saw that the helm of the "Ostrich" was
starboarded, and that a collision was inevitable.
The Court further considers that the said George Edmund Bone, the master of the
"Ostrich," was guilty of great negligence in not seeing that a proper look-out
was being kept on board his vessel, and in allowing the vessel to go at the rate
of from nine to ten knots through the water with a strong ebb tide in his favour
when he believed, as he says, that she was only going five knots through the
water.
For these wrongful acts and defaults the Court orders the certificate of the
said George Edmund Bone to be suspended for six calendar months from this date,
but recommends that during the period of such suspension he be allowed a first
mate's certificate.
The Court makes no order as to costs.
Dated the 7th day of February 1878.
(Signed)H. C. ROTHERY,
Wreck Commissioner.
We concur in the above report.
(Signed)E. G. F. G. VISCONTI,
Retired CommanderR.N.,Assessors.
"HENRY JONES,
Judgment.
The Commissioner (to Mr. Bowen).-Have you any further information to give me as
to the rule nisi?
Mr. Bowen.-I have not.
The Commissioner.-It was an application to the Court to grant a rule nisi, on
the ground that an inquiry has already taken place before two justices? Was that
the ground taken?
Mr. Bowen.-I have not a notion, sir.
The Commissioner.-I think there is no reason under the circumstances why I
should not proceed to deliver my judgment at once. I do not think that it will
in any way injure the parties.
The Commissioner.-The Court is much indebted to the learned counsel for the
Board of Trade for the very full and able manner in which they have laid this
case before it. The assistance which the Court has received from them, as well
as from all the other gentlemen engaged in the case, has materially lessened its
labours. The Court regrets, however, that in the course of these proceedings
charges of unfairness and of collusion should have been made by Mr. Nelson, who
appears for the master of the "Benbow," against the counsel for the Board of
Trade, and against Mr. Bucknill, the counsel who represents the master of the
"Ostrich," that the accusation was well founded, no one who knows those
gentlemen could for one moment believe; and it has been sufficiently disproved
by the fact that the Board of Trade have with perfect impartiality preferred
charges against the masters and pilots of both vessels. Mr. Nelson did certainly
in the course of the very able remarks which he addressed to the Court, in a
measure withdraw the charges he had made; he probably hardly meant what he said,
and if he did not he ought not to have said it; nor do we see that it was at all
essential to the defence of his clients' interests. In justice also to Mr.
Bucknill it is right that I should say that no one could have conducted a very
difficult case with more ability and fairness than he has done. If anyone is to
be accused of unfairness, it is perhaps the Court itself in interposing
questions in the course of his cross-examination of the witnesses, of which I
think he might justly have complained.
I will now proceed to deal with the facts of the case The object of the present
inquiry is to ascertain the circumstances under which a collision occurred
between the two steam vessels the "Ostrich" and the "Benbow," in Woolwich Reach,
on the morning of the 20th of January last. The "Ostrich" was a vessel of 623
tons gross and 424 tons net register, and was fitted with engines of 150
horse-power. The "Benbow" was a vessel of 893 tons gross and 582 tons net
register, and was fitted with engines of 125 horse-power. Both belonged to the
General Steam Navigation Company.
The story told by the "Ostrich," is that she left Irongate Wharf at 6 a.m. on
the 2th of January last, bound to Newcastle, having on board a cargo of 150 tons
of general merchandise and 12 passengers and drawing 9 feet 7 forward and 13
feet aft; she had a crew of 27 hands all told, four water-tight compartments,
five boats, and four pumps, and was in every respect well fitted for the voyage.
She proceeded down the river in charge of a pilot named Biggs, having the ebb
tide with her, and going according to the master and the pilot at the rate of
five knots an hour through the water, and seven knots over the ground. This,
however, was afterwards shown to be an entire mistake, and that she was in fact
proceeding over the ground at the rate of between 11 and 12 knots an hour, and
through the water at the rate of between 9 and 10 knots an hour. The morning was
fine and clear, the water was smooth, and the wind was from the south-west. From
the time of leaving her moorings the captain and pilot were on the bridge, and
the second mate and an able seaman were at the wheel. The first mate, it
appears, was on the lookout forward until they arrived in Bugsby's Hole, when he
was relieved by the boatswain, who, instead, however, of attending to the
look-out, proceeded to assist the men to clear up the decks; so that there was,
in fact, no look-out on board the vessel at the time of the collision.
At 6.35 the vessel passed Hookness Point, being then, as her witnesses have
stated, a little to the northward of mid-channel. It was impossible for her to
go very far over to the north shore owing to a bank which runs out at that
point, Her helm was then starboarded for the purpose of rounding the Point, and
at that time we are told the green and masthead lights of an approaching
steamer, which afterwards proved to be the "Benbow," were observed on the port
bow coming up Woolwich Reach. On the "Ostrich" rounding the point her helm was
steadied, and she was straightened down the Reach. We are told that at this time
the green light of the "Benbow" bore from two to three points on the "Ostrich's"
starboard bow. After proceeding for some time in this direction; green light to
green light, we are told that the "Benbow" sounded her whistle, upon which the
helm of the "Ostrich" was starboarded, in order to give her more room, and the
"Ostrich" sounded her whistle in reply. Soon after, all three lights of the
"Benbow" appeared, showing evidently that she had ported her helm. Orders were
thereupon immediately given to hard a-starboard the helm and to stop the
engines, but before these measures could be carried into effect the "Benbow"
came stem on into the starboard bow of the "Ostrich," cutting her down below the
Watermark, filling the fore compartment, and drowning four of the passengers and
one fireman. Both vessels, it seems, took the ground either at the moment of the
collision or very shortly afterwards on the north shore, and when the "Ostrich"
sank she was at about 100 yards from the north shore. According to the "Ostrich"
the casualty was due to the "Benbow" having suddenly ported her helm when they
were passing one another starboard side to starboard side.
Now, the story told by the "Benbow" is that she left Rotterdam at about 10.30
a.m. on the 19th of January last, bound to London, having on board a cargo of
300 tons and a quantity of cattle, and drawing 10 feet 8 forward and 12 feet 8
aft. She had a crew of 24 hands all told and was well found in every respect. In
coming down the Mals, and whilst in charge of a duly licensed pilot, she took
the ground, but, as the tide was rising, she soon got off again without having
sustained any damage, and accordingly proceeded on her voyage. At 4.15 a.m. of
the 20th she arrived off Gravesend, when a pilot named Griggs came on board, and
she then proceeded up the river at full speed, going at the rate of 8 1/2 to 9
knots an hour through the water, the morning, we are told, being clear and
moonlight. On entering Woolwich Reach the pilot and first mate were on the
bridge, the second mate and an able seaman were at the helm, and there was
another able seaman on the forecastle keeping a lookout. The master, it seems,
had shortly before gone below for the purpose of obtaining some refreshment.
When abreast of the Sections, which lie in a line with and above the "Warspite"
on the south side of the Reach, the chief officer observed the red and masthead
lights of a steamer, which afterwards proved to be the "Ostrich," on his
starboard bow, coming down Bugsby's Reach. On the "Ostrich" rounding the point
and straightening down the Reach, we are told that the red light was brought
about one point on the "Benbow's" port how, distant at the time from one half to
three quarters of a mile. The "Benbow" continued her course up the Reach, when
the pilot, observing that the red light of the "Ostrich" was closing in upon
him, ordered the helm to be ported and blew his whistle. Shortly afterwards all
three lights of the "Ostrich" appeared, showing that her helm must have been
starboarded, whereupon the helm of the "Benbow" was put hard-a-port, but her
engines were kept going ahead full speed, and shortly afterwards they came
together in the manner in which I have already described, the Benbow" striking
the "Ostrich" with her stem on the starboard bow. The only difference between
the parties is that the "Ostrich" describes the blow as having occurred 20 feet
from the stem, whereas according to the "Benbow" the blow was something like 4
feet from the stem. According to the "Benbow" the cause of the casualty was the
act of the "Ostrich" in starboarding her helm when the two vessels were passing
port side to port side.
After the witnesses on board the "Ostrich" had been examined, Mr. Bowen, on
behalf of the Board of Trade, preferred charges against the masters and pilots
of both vessels, as having by their conduct contributed to the accident. The
charges are in identically the same words, and are as follow:-First, for not
having kept a good lookout; secondly, for having navigated the vessel
negligently at too great a speed; thirdly, for not having slackened speed and,
if necessary, stopped and reversed; and fourthly, for not having observed the
rules and regulations issued by the Conservators of the River Thames for the
navigation of the River Thames.
Here, however, objections were taken by Mr. Bucknill on behalf of the pilot of
the "Ostrich," and by Mr. Nelson on behalf of the master and pilot of the
"Benbow," to the Court's proceeding to investigate these charges; and I was
prepared to give judgment on the points, when I was informed by Mr. Bowen, at
the conclusion of the arguments, that a rule nisi had been applied for on behalf
of the pilot of the "Benbow" to prohibit this Court from proceeding to
investigate the charge, so far as he was concerned. Out of deference to the
Court of Queen's Bench I consented to defer giving judgment until this morning,
as I was desirous of knowing on what grounds the Court had granted the rule
nisi; and I was in hopes that I should have been furnished with a note of what
occurred. Up to this time, however, I have no note of what took place on the
occasion, but, as I cannot conceive that any injury will result to the pilot of
the "Benbow" by my proceeding to give judgment, I shall at once proceed to do
so. It seems to me too that, when the case comes to be argued before the Court,
if it ever is, the Court will be glad to have before it all the facts, and to
know the grounds upon which this Court considers that it is entitled to exercise
the jurisdiction which it now claims. I should add that such a course will on
every account be most convenient, for it would be a great injustice to the
parties if this cause were to stand over until the rule nisi had been argued. If
too this Court should err in the opinion which it is about to express, the Court
of Queen's Bench would have no difficulty in at once setting it right; and, in
the meantime, I cannot see that any injury will be done to the parties.
The first objection has reference to the charges preferred against the pilots.
It is contended that the Court, having no jurisdiction to cancel or suspend a
pilot's certificate cannot entertain any charge against him. it is said that by
the 366th section of the Merchant Shipping Act the power to take away a pilot's
certificate is vested in the authority by which the license was granted; that
this Court has not granted the license, and consequently that it has no power to
take away the license. Now, the Court has never presumed to say that it had any
intention to interfere with the pilot's certificates; in fact, it has distinctly
stated all through these proceedings that it claimed no such power. All that the
Court has ever said is that, so far as it is able to see, it is not prohibited
by any words in the Statute from proceeding to hear and report upon this case,
even though it might, in its opinion, turn out that the casualty was due to one
or other of the pilots. If the contention of the learned counsel is well
founded, the duty of the Court would be confined to cancelling or suspending the
certificates of masters and mates, but I apprehend that this is not so. The
432nd section of the Merchant Shipping Act of 1854, amended as it is by
subsequent Acts, and especially by the Act of 1876, declares what the duty of
the Court is, and that it is to inquire inter alia into casualties where there
has been loss of life, as in this case. It is bound also to report to the Board
of Trade what in its opinion has been the cause of the caualty, and to whose
misconduct it is due. But it is said that, even if I have the power to inquire
into the circumstances of the casualty and to report to the Board of Trade, as
well as to state whether I believe the casualty to have been due to the
misconduct of any person, and of whom, I have no power to continue the
proceedings after the Board of Trade has intimated that in its opinion the
casualty was due to a person who has neither a master's nor a mate's
certificate, which the Court can either cancel or suspend Let me take the case
of a master who has no certificate, and assume that the casualty was due to
gross misconduct on his part; is the Board of Trade unable to make a charge
against him, and is the Court prohibited from further inquiry into the case? I
confess that I do not find in the Act any words which so limit the jurisdiction
of this Court.
I agree with Mr. Bowen that the mistake seems to arise from giving a too
technical meaning to the word "charge." Let me state briefly what I understand
to be the meaning of this word, and what was the intention of the Legislature
when it used it. Before the passing of the Act of 1876 it was a frequent subject
of complaint that in inquiries of this nature parties were sometimes seriously
injured by having had charges made against them in the report to the Board of
Trade, of which they had had no previous knowledge, and against which they had
not had any opportunity of defending themselves. Accordingly the Legislature, by
the concluding paragraph of the 30th section of the Act of. 1876 provided "that
every formal investigation into a " shipping casualty shall be conducted in such
a manner " that if a charge is made against any person, that person " shall have
an opportunity of making a defence." Now, it is to be observed that in that
section the word used is "person," not certificated master, or mate, or
engineer, but the word "person." It seems to me that the Legislature in passing
such a provision must have thought that in inquiries of this nature charges
might be made not against a certificated master or mate only, but against an
uncertificated master and mate, and against the pilot, and even against the
owner, or any person who could be shown to have in any way contributed to the
casualty; and that is why it used the general word "person." If it had thought
that a charge could only be preferred against a certificated master, mate, or
engineer, it would probably have said so. The word "charge" which is used in the
Act cannot, it seems to me, be distorted to mean a criminal charge; it means no
more than a notice to a party that in the opinion of the Board of Trade there is
a primd facie case against a person that the casualty has been in some way
occasioned by his misconduct. I must therefore hold that the first objection
fails.
The second objection is that the master of the "Benbow" has been already
charged, and I think the master of the "Ostrich" too.
Mr. Nelson.-Yes, he was charged, but the charge has not been heard. He has been
served with a summons.
Mr. Hall.-The summons was adjourned against the master of the "Ostrich," and the
summons against the master of the "Benbow" was heard.
The Commissioner. - Well, the second charge is that the masters of these vessels
have been already charged criminally with an offence arising out of this
casualty before the justices, and that this Court cannot therefore investigate
the charges a second time. Mr. Bucknill, who appeared for the master of the
"Ostrich," in the exercise of his discretion, said that he had carefully
examined the Acts, and that in his opinion the objection was not tenable. But
Mr. Nelson has contended that it is, and the Court must therefore pronounce an
opinion on the point. A preliminary objection was taken by Mr. Bowen that the
charge which had been preferred against the master of the "Benbow" was not the
same charge which had been made before the Court here. The charge against the
master of the "Benbow" before the justices was for having infringed the
regulations for preventing collisions at sea, issued under the Order in Council
of 9th January 1863. But it was objected before the justices that these
regulations did not apply to the River Thames, and that the master, if he had
infringed any law, had infringed the rules and byelaws framed by the
Conservators for the navigation of the River Thames. As I understand from Mr.
Nelson, that was the ground upon which the justices dismissed the charge, and
not at all upon its merits. On this technical ground, therefore, I should be
disposed to hold that the objection failed, the master not having yet been tried
for a breach of the rules and byelaws for the River Thames, which is the offence
with which he is charged in these proceedings.
But I will assume for the moment that the charge preferred against the master
before the justices was the same as that against him in this Court, namely, that
of having infringed the rules and byelaws issued by the Conservators of the
River Thames, and I will proceed to inquire whether or not even then the Court
would be bound to hold its hand. In a case which recently came before the Court,
that of the "Agnes," the Court held that its jurisdiction would not be ousted
even if the master had been already put upon his trial on a charge of
manslaughter; and I see no reason to depart from the opinion which I then
expressed. In my view, the question before this Court is not whether the master
has or has not committed a misdemeanour, nor whether he is or is not guilty of
manslaughter, but whether he has or has not done certain acts which have
conduced to the casualty. I have no power of punishing him for a misdemeanour,
or for manslaughter, or for felony; I can only inquire and report whether or not
he has so acted as to bring about the casualty, and if in my opinion he has, and
if he holds a certificate over which I have power, the Legislature has
authorised me to cancel or suspend it.
It was said that a man cannot be twice tried for the same offence; I admit that
fully, but I deny that we are here trying a man in the sense in which those
words are used. Suppose the question was raised in the Court of Probate whether
the signature to a testamentary document was or was not that of the testator,
could it be said that the Court was not competent to deal with the question, or
to take evidence on the point, because the person accused of having done it had
been up before a magistrate, and that the charge had been dismissed? I apprehend
not. Or again, on a motion to strike a solicitor off the Rolls, could it be said
that the Court was not competent to inquire into the charges against him,
whether they had or had not formed the subject of a criminal charge against him
before a magistrate? The Court is not seeking to punish the master criminally
for the offence, if any, of which he is guilty; it is simply endeavouring to
find out what are the circumstances which led to the casualty, and whether any
person, and who, was responsible for it. That is the opinion which I expressed
in the case of the "Agnes," and to which I shall adhere in this. I shall
continue to follow the course I have indicated, until I am corrected by superior
authority.
To return now to the facts of the case: Now the case of the "Ostrich" is that
the two vessels, when in Woolwich Reach, were starboard side to starboard side;
the case of the "Benbow" is that they were port side to port side. In the former
even it was obviously the duty of both vessels to pass on the starboard side, in
the latter to pass on the port side of each other. The question therefore which
we have to consider is, what were the relative positions of these two vessels
when approaching each other in Woolwich Reach?
Now it is admitted in this case that below the "Warspite" the navigable part of
the channel is very narrow, and is entirely on the south side of the river; both
vessels then, when abreast of the "Warspite," would be on the south side of the
river, more or less near to the south shore. It is also admitted that the ebb
tide, which was running strong at the time, when it gets to the lower part of
Bugsby's Reach, sets down to the southward and runs along the south side of
Woolwich Reach, and that to the northward of mid-channel the ebb tide is slack.
The course, then, which the "Ostrich" would naturally pursue in going down
Woolwich Reach would be to keep to the south side of the Reach in the strength
of the ebb tide. To use Dr. Lushington's words:-"No man can doubt " that any
vessel coming up the River Thames against an " ebb tide would naturally seek
that part where the tide " was slackest; and going down would be glad of the "
assistance of the tide, and would go down where it was " strongest, and vice
versa if it was a flood tide." This then would be the course which we might
expect these vessels would pursue when in Woolwich Reach: the "Ostrich" would
keep to the southward in the strength of the ebb tide, the more so as when she
got down to the "Warspite" she would necessarily have to be on the south side of
the river; and the "Benbow," after passing the "Warspite," would edge over as
far as she could towards the north shore to avoid the strength of the tide. Now
this, in fact, was what the witnesses from the "Benbow" say they did; and it is
also admitted by the witnesses from the "Ostrich" that it is what they would
have done if there had been nothing in the way. They say that the "Ostrich"
would have been a little to the north of mid-channel before she rounded the
Point, but when she had rounded the Point the ebb tide would sweep her down to
the southward, and that when she got down to the Sections, which lie above the
Warspite," she would be well over to the south shore; that is the natural course
that she would pursue. But the "Ostrich" says that, although this would be her
natural course if there had been nothing in the way, the usual course was, if
there was anything in the way, to starboard the helm so as to pass starboard
side to starboard side. She gives no reason for taking this course, which seems
most unreasonable, for it deprives her of the advantage of the ebb tide, and
compels the other vessel to go up against it; she merely says that that was her
practice. On the other hand, the "Benbow" says that with an ebb tide the
practice universally was to pass port side to port side, the down-going vessel
to the southward of mid-channel, the up-going vessel to the northward of it. In
this conflict of evidence it is desirable to see to which of the witnesses the
Court ought to give the greatest credence.
And, first, let us take the witnesses from the "Ostrich." The master told us
that they left at 6 a.m., and that the collision occurred at 6.40; they had
consequently run the distance in 40 minutes. He stated also that the distance
from Irongate Wharf to the place of the collision was only 4 1/2 miles, that
they were going down all the way at half speed, and that the vessel was going
through the water at the rate of only 5 miles, and over the ground with the ebb
tide at the rate of 7 miles an hour. It turned out, however, when the pilot came
to be examined, that the distance run was 7 1/2 miles instead of 4 1/2 miles,
and this at once raised the speed over the ground to between 11 and 12 miles an
hour, and, allowing 2 miles an hour for the ebb tide, from 9 to 10 miles through
the water. That the master should not have known the distance from Irongate
Wharf to Woolwich Reach appears to us to be almost incredible, and we can hardly
doubt that he was endeavouring to deceive the Court as to the distance run with
a view of showing that she was only going half speed. Again, the master told us
that the green light of the "Benbow" was from 2 1/2 to 3 points on his starboard
bow when he straightened up Woolwich Reach. He was asked to place the "Benbow"
so that her green light should be 2 1/2 to 3 points on his starboard bow, and he
found it impossible to do so without placing her in the middle of Woolwich town.
Not much reliance, I fear, is to be placed on a man who can depose, as this
master has done, on two such important matters, as the speed of his own vessel
and the position of the approaching steamer. The pilot, too, told us that the
vessel was only going at half speed, making five knots through the water, and
seven over the ground; and although compelled to admit that the distance from
Irongate Wharf to the place of collision was 7 1/2 miles, he either would not or
could not understand that. if the vessel had run over 7 1/2 miles in 40 minutes,
her speed would be greater than 7 knots an hour. He also equally with the master
stated that the green light of the "Benbow" was from 2 1/2 to 3 points on the
starboard bow, and was equally unable to place the "Benbow" in this position
without putting her in the middle of Woolwich town. This gentleman seems about a
year ago to have been suspended from navigating the ships of the General Steam
Navigation Company for about six months owing to the number of collisions that
he seems to have met with when in charge of their vessels; and the way in which
he gave his evidence certainly did not inspire the Court with any very great
confidence in his judgment or truthfulness. The chief engineer also told us that
the engines were going only at half speed, which was, as I have said, clearly
disproved by the distance run in the time. On being pressed, however, he
admitted that the telegraph was pointing to full speed; and his explanation why
she had not been going at full speed was most unsatisfactory. He told us that
the pressure was only 16 lbs. in the boilers, whereas for full speed it should
have been 20 lbs.; but on being asked whether it had increased. he said that it
had increased to 17 or to 18 lbs.; and, on being further asked how long it would
require to get up the steam to 20 lbs., he said it would require that she should
stop for one minute or a minute and a half. Why he did not get up full steam,
seeing, as he has told us, that he gave her all the steam he could, we were not
quite able to understand. The evidence, too, was that she had stopped
occasionally in going down, and there could not, therefore, have been any
difficulty, if he had wished, to get up full speed; and we are rather disposed
to think, seeing the distance run in the time, that he did so. Lastly, we have
the second engineer, who certainly gave us some most extraordinary evidence. He
told us that the engines when at full speed made 87 revolutions in a minute, but
that during the voyage down they made only 23 revolutions a minute.
These are all the principal witnesses from the "Ostrich," and we confess that
they did not inspire us with that confidence which would induce us to accept
their evidence in preference to that given by the witnesses from the "Benbow,"
whose evidence was quite consistent throughout. But it was said that there were
three independent witnesses. There was a gentleman named Castle, a brother of
the boatswain, who ought to have been on the look-out, but was not. This
gentleman was in a hopper lying off Charlton Ballast Wharf, and he told us that
he saw the "Ostrich" coming down on the north side of Bugsby's Reach, which is
very possible; and that he afterwards saw her green light when she had
straightened down the Reach, which is also quite possible; but it was quite
impossible for him to say, looking sideways at her, whether she was more or less
in mid-channel, whether she was a little to the northward of mid-channel when
she straightened down, or whether in fact she was in mid-channel or to the
southward of mid-channel. Another witness, Twin, a person of considerable
experience and a pilot, gave us evidence which on the whole was more favourable
to the "Benbow" than to the "Ostrich," for he told us that, if there was nothing
in the way, the proper course for a vessel going down would be, after rounding
the Point, to keep to the southward of mid-channel, where the tide would help
her, and for a vessel coming up to keep to the northward of mid-channel in the
slack of the tide. The other witness, Moore, a long-shoreman, who seems to have
made a practice of walking for his amusement along the banks of the river, from
half-past 6 till 8 o'clock on a winter's morning, spoke also of seeing the
"Benbow" to the southward of mid-channel; but I cannot say that he inspired us
with much confidence, for all that he could see of the vessels was through the
Sections sideways, and it was quite impossible therefore for him to say whether
they were or were not more or less in mid-channel.
I think I have now gone through all the evidence, and in our opinion it is
strongly in favour of the "Benbow."
Mr. Bucknill, however, cited the case of the "Ranger" and the "Cologne,"
reported in the fourth volume of the Law Reports, Privy Council, as being in his
opinion conclusive in his favour. Now as any decision of their Lordships, as the
highest Court of Appeal, must be binding upon this Court, I propose to examine
that case, as well as two similar cases, which preceded it,-the "Velocity" and
the "Carbon," and the "Esk" and the "Niord," which will be found reported in the
third volume of the same reports. In all these cases the vessels were steamers,
approaching one another round a bend of the river, and with the green light of
the one vessel opposed to the red light of the other, and therefore starboard
side to port side. The learned judge of the Admiralty Court had in the first of
those cases, the "Velocity" and "Carbon," 3 Law Reports, Privy Council, p. 44,
held that, as the two vessels were approaching one another, green light to red
light, they were within the meaning of the fourteenth article of the Regulations
for preventing Collisions at Sea, crossing vessels, "and that it was therefore
the duty of the vessel " which had the other on her starboard side to keep out
of " the way." But on appeal their Lordships held that " the relative positions
of the two vessels when they first " came in sight of each other must not alone
be regarded, " but also the bend of the river in the part where the " collision
took place." Further on their Lordships observe that the "Velocity" "had a
perfect right to be " where she was, and she was pursuing the usual course " of
navigation down the river, from which she never " deviated until forced to do so
by the peril of a collision, " into which she was brought by the sudden change
of " course of the 'Carbon.' On the other hand the " 'Carbon' appears to their
Lordships to be wholly " to blame. She knew, or ought to have known, that a "
vessel going down the river had a right to run down on " the north shore, and
that, in the position in which she " was, the appearance to her of the red light
of a vessel " on that side of mid-channel was no indication that the " vessel
was in the act of crossing the river, and yet, there " being nothing else to
justify the belief, she acts at once " upon her hasty and erroneous conclusion,
and so occa- " sions the collision."
So, too, in the case of the "Esk" and the "Niord," it was the usual and
accustomed course for the one vessel when approaching this bend of the river to
keep in-shore, and for the other to keep in mid-channel; and if each had kept
its proper and usual course they would have passed clear of each other, port
side to port side. And their Lordships held, as in the case of the "Velocity"
and "Carbon," that although in approaching the bend of the river the vessels
would necessarily be starboard side to port side, the one vessel had no right to
disregard the usual and accustomed course of navigation, and by star. boarding
her helm bring about a collision.
Again, in the case of the "Ranger" and "Cologne" cited by Mr. Bucknill, 4 Law
Reports, Privy Council, 519, their Lordships held. that, there being no
accustomed practice for vessels going up and down the river at that part, the
"Ranger" had no right to assume, simply from the fact of their being starboard
side to port side when rounding the bend of the river, that the "Cologne" was
about to deviate from her accustomed course, and to cross the "Ranger's course,
it being clear that, if each had kept her respective courses, the two vessels
would have passed clear of one another, the one taking the in-shore course, the
other the mid-channel course.
Now if I rightly understand these cases, the principles laid down by their
Lordships were, that in rounding the bend of a river, a vessel was not to be
guided solely by the colour of the lights on the side of the vessel which was
approaching her from the opposite direction; that they must regard the usual and
accustomed course of navigation at that part of the river; that they must
remember that in rounding a bend of the river the courses of the two vessels
would necessarily be not in straight lines, but in curved lines following the
bend; and that neither vessel has any right (to use an expression which is
familiar to most of us) to take the other's water; but that each must continue
its respective course, the one keeping the in-shore course, if that is her usual
and accustomed course, the other keeping the mid-channel course, if that was her
usual and accustomed course, so that they might pass port side to port side, or
starboard side to starboard side. Their Lordships nowhere said, as counsel
seemed to think, that if two vessels are rounding a bend of the river in
opposite directions, and were each at the same distance from the shore, it was
competent to one of them to starboard her helm to go inside the other: on the
contrary, they would in that case be meeting vessels, inasmuch as if they
continued their respective courses they would meet end on, although in rounding
the bend the starboard side of the one might necessarily be turned towards the
port side of the other. The courses of the vessels, as I have already said, must
be regarded not as straight lines, but as curved lines following the bend of the
river.
To apply then these principles to the present case. The "Benbow" might
reasonably suppose that the "Ostrich" in coming down would take the usual and
customary course of navigation down the river, and that on rounding the Point
she would keep down mid-channel, or perhaps a little to the southward of it,
where she would be swept by the ebb tide. She was, therefore, quite right to
port her helm so as to keep to the north of mid-channel, assuming that they
would pass port side to port side. The" Ostrich," on the other hand, could have
no reason to suppose that the "Benbow" would go out into the strength of the ebb
tide, and had, therefore, no right to starboard her helm so as to pass to the
starboard side of her, and for this reason we think she is to blame for the
collision.
It may, however, be asked, what could possibly have induced the "Ostrich" to
starboard her helm as she did? And I think that the explanation which Mr. Bowen
has given is probably the right one. It seems that, on the master of the
"Benbow" going on board the "Ostrich" immediately after the collision, some
conversation passed, when the master of the "Ostrich" said, "I thought you "
were a vessel going to the Derrick." Now it has been said by Mr. Bucknill, what
answer did the master of the "Benbow" make to that? What answer could he make?
He had come on board a vessel that had just sunk with the loss of five lives;
was it reasonable to suppose that he would enter into any discussion with the
master of the "Ostrich" upon the point? it seems to us certainly that he would
not. I cannot help thinking, and the assessors concur with me in that opinion,
that the first intimation that the master and pilot of the "Ostrich" had of the
approach of the "Benbow," owing, probably, to there being no good look-out, was
hearing the whistle of the "Benbow;" thinking, as the master of the "Ostrich"
said he did, that the "Benbow" was bound to the Derrick; and, to use Lord
Chelmsford's words, acting" upon that hasty and "erroneous conclusion," an order
was given to starboard the helm, and so the collision is brought about. In our
opinion the whole blame of this collision rests with the "Ostrich" for
starboarding her helm when she ought to have continued her course down
mid-channel, and, if necessary, have ported her helm.
I now proceed to consider some of the other questions which have been raised in
this case; and first as to the look-out, with the want of which both vessels
have been charged by the Board of Trade. That the "Ostrich" had no proper
look-out is not denied, and we must say that the arrangements in this respect
show a great want of discipline on board this vessel. That a vessel should be
going as this vessel was, at the rate of from 11 to 12 miles an hour over the
ground in the night, and at a time of the night when, according to the
witnesses, it was darkest, and without an efficient look-out, appears to us to
show very great negligence. The boatswain, whose duty it was to have been on the
look-out at the time, was not produced before us; if he could have given any
evidence, exculpatory of the master's conduct in this respect, he could no doubt
have been found, as well as his brother, the man from the hopper. As regards the
"Benbow," although she is charged with not having a good look-out, we see no
evidence that it was so; on the contrary, the look-out man has been produced
before us, and from the way in which he and the other witnesses gave their
evidence we think that there was a good look-out.
Next, were the vessels proceeding at too great a rate of speed? Now we are not
prepared to say, seeing that it was clear and moonlight, that they were going at
too great a rate of speed, provided that they had had a good and efficient
look-out. The "Benbow" had a good look-out, and therefore she was in our opinion
not going at too great a speed under the circumstances; on the other hand the
"Ostrich" had no proper look-out, and therefore it might well have been too
great a rate of speed for her under the circumstances. But, at all events, the
master, the officers, and the pilot of the "Ostrich," all seem to have thought
that full speed, which it is clear she was going, was too great a rate of speed
under the circumstances, for they have endeavoured to show by evidence, which we
have thought to be unworthy of belief, that they were only going at half speed.
But, however this may be, it is certain that the conduct of the master was
highly culpable in saying that they were going at the rate of only five knots
through the water, when their own evidence shows that they must have been going
from nine to ten knots.
Again, as to slackening and reversing the engines just before the collision. it
seems that on board the "Ostrich" an order was given to stop the engines before
the collision, but that there was no time to act upon it. On board the "Benbow"
it is not pretended that before the collision any order was given to stop or
reverse the engines; on the contrary, the master has taken credit to himself for
having kept them going full speed till the time of the collision. He said that
he thought it was a right thing to do to go on at full speed, and that he told
them to go ahead. Now to give an order that the vessel should go ahead full
speed when he saw that the "Ostrich" had starboarded her helm, and was coming
across his bows, was, we think, a great error in judgment. Had he slackened and
reversed his engines at that moment it is quite possible that the results would
not have been so calamitous as they were. But Mr. Nelson has cited the case of
the "Jasper" and "Earl of Elgin," reported in the fourth volume of the Law
Reports, Privy Council, page 1, to show, not that it was the master's duty to
continue going ahead full speed up to the time of the collision, hut that he is
not to blame for having so done. 1 think, however, that that case, as Mr. Bowen
has contended, has no bearing whatever upon the present one. Their Lordships
could never have intended to say, that when a vessel has once ported her helm,
under no circumstances is she to slacken or stop her way. In the present case
the master of the "Benbow" saw that the "Ostrich" had starboarded her helm, and
would necessarily cross his bows; his proper course then, I am advised by my
assessors, was to stop and reverse his engines at once; and in that case, if the
two vessels had come together, it would certainly not have been with such
violence as they did.
One charge still remains to be noticed. The master of the "Benbow," it seems,
was not on the bridge before the collision; and our attention has been called to
Rule 36 of the byelaws for the regulation of the navigation of the Thames issued
by the Conservators, which is in these words-"The master of every steam vessel
navigating the "river shall be and remain on one of the paddle-boxes or "upon
the bridge." It is admitted that the master was not on the paddle-box; on the
other hand, it has been proved that he had been on deck all night, and that he
had gone below for about half an hour before the collision to get some
refreshment. And the gentlemen by whom I am assisted are of opinion that there
was nothing improper, no neglect of duty, in so leaving the deck temporarily. It
is unfortunate that it should have happened just before the collision, but there
is nothing for which we can blame the master.
The result then to which we have come is that the fault of the collision was due
to the "Ostrich" for having starboarded her helm, and thus thrown herself across
the "Benbow's" bows; but that the "Benbow" is also to blame for not having, in
the words of the 16th Article, "stopped and reversed" when she saw that the
"Ostrich" had starboarded her helm, and that a collision was inevitable. So far
as regards the navigation of the vessel and the starboarding of the "Ostrich's"
helm the pilot is, no doubt, chiefly responsible; but as regards the want of a
good look-out, as regards the speed of the vessel, and as regards the want of
knowledge, real or assumed, of the distance run, and the attempt to deceive the
Court in this respect, the master is in our opinion to blame.
As regards the "Benbow," the only blame to her is for not having stopped and
reversed her engines when a collision was inevitable; and for this both the
master and the pilot must share the responsibility, although from the evidence
of the master of the "Benbow" he seems disposed to accept the whole
responsibility himself, saying that it was by his order that she was kept going
ahead.
As regards the pilots, we have, as I have already stated, no power whatever to
touch their certificates, and we can therefore only express our very strong
disapprobation of the conduct of the pilot of the "Ostrich" in ordering her helm
to be starboarded when approaching the "Benbow;" and disapprobation also of the
conduct of the pilot of the "Benbow," when he saw that a collision was
inevitable, in not stopping and reversing her engines. As regards the masters,
however, we can touch their certificates. The master of the "Benbow" was, we
think, to blame for not having stopped and reversed his engines when a collision
was inevitable; but we think that it will be sufficient to reprimand him, and to
warn him to be more careful in future, his fault amounting merely to an error of
judgment. As regards the master of the "Ostrich," however, he has in our opinion
been guilty of acts of grave carelessness, resulting in the deaths of five
persons, and we think that we should not be doing our duty if we did not suspend
his certificate for six months; but we shall recommend that during the period of
its suspension he be allowed a first mate's certificate.
Mr. Bowen.-I make no application as to costs.
H. C. ROTHERY, Wreck Commissioner.
W. 197, 60.-3/78. Wt. 3011.
