THE KING V.

He has, THE OWNERS OF

also a
master mariner and marine surveyor of many years'
experience, and well acquainted with both ships.
however, never been in command of 2 steamer over 3000 tons or
of any twin-screw steamer. He said, differing in this from
Captain Page, that it was a perfectly safe manoeuvre for the
Argyllshire to go to sterboard as she did under the weather
conditions prevailing at the time of the collision, if the Matthew
Flinders was 700 feet ahead of her, and that to go to leeward
under the circumstances was not necessary or proper, and also
that the Matthew Flinders, under the given conditions, with her
comparatively low free-board and deep as she was, would drift
as fast as the Argyllshire with her light draft, and the consequent
large amount of side exposed to the wind blowing on her beam.
On the question of damages there was no contest as to the first
six items of the claim, amounting to £536 14s. 8d., which were the
cost of the repairs, etc., to the Matthew Flinders, and of a new
whaleboat. There was as to the sum of £264 12s. for the use of
the Cormorant during the time the Matthew Flinders was laid-up
for repairs. This was made up by taking 14/24ths of £453 13s. 4d.,
the estimated cost of the Cormorant for 24 days, which it was
thought the repairs would take, but they were executed in 14
days. This sum is made up as follows:-

S.S. ARGYLLSHIRE.

THE

ARGYLLSHIRE.

Macnaughton J.

In my opinion, on the authority of The Greta Holme (1), The Mediana (2), and The Marpessa (3), the plaintiff is entitled to claim as damages reasonable compensation for the services of the Cormorant while she was taking the place of the Matthew Flinders. Of the items specified, 4 and 5, 5 per cent. on the cost

(1) [1897] A.C. 596. (2) [1900 A.C. 113,

(3) [1907] A.C. 241

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of the Cormorant for interest and depreciation represent a THE OWNERS OF moderate charge for the hire of the ship; 6 and 7, for wages and

S.S.

ARGYLLSHIRE.

THE ARGYLLSHIRE.

Macnaughton J.

food for the crew of the Matthew Flinders who were permanent employees; 8, for deck and engine-room stores actually expended, should be allowed. These make a total of £268 9s. 10d., but I do not think that items 1 and 2 can fairly be charged. They represent wages and overtime to men employed on the Cormorant while she was taking the Matthew Flinders' place, in addition to her ordinary crew. No reason other than that it had not been the practice of the Harbours and Rivers Department was given for not employing some of the Matthew Flinders' crew, who were drawing their wages and food allowance, and not doing any work while the repairs were being executed, and that reason does not justify the plaintiff in making a claim for them. Item 3 for coal is admitted to be no more than would have been expended by the Matthew Flinders, and when this was pointed out it was not pressed. In my opinion the plaintiff is entitled to claim 14/24ths of £268 9s. 10d. (which comes to £156 13s. 5d.), making a total of £693 8s. 1d. for damages caused by the collision.

On this evidence I have come to the conclusion that both ships are to blame. The Argyllshire (1) Because she started to go to starboard of the Matthew Flinders when that vessel was only about 800 feet ahead of her. This may have happened because Captain Page under-estimated the distance by reason of his mistaken idea that the Matthew Flinders steamed slow ahead after dropping the whaleboat, instead of forging ahead, as I have found as a fact she did, under the way from her previous steaming. Apart from the Articles of the Regulations referred to later on, in my opinion it was the duty of the Argyllshire, or those on board of her knowing that the Matthew Flinders had to wait close by to pick up Pilot Rogers in her whaleboat-to take every precaution to keep clear of her. As the Matthew Flinders was not at anchor, made fast to the shore or aground, she was "under way within the meaning of the definition of that term in the Regulations, and therefore by Article 24 the Argyllshire, after she started, was an overtaking vessel as defined in that article, and was bound to keep out of the way of the Matthew Flinders. (2) After the Argyllshire had started, when Captain Page saw that she was not opening out on his port bow as he expected and when he was still one of the Argyllshire's lengths or 550 feet from the Matthew Flinders, he ought to have gone astern before starting to go to

THE KING .

S.S.

starboard. His not doing this was very likely due to his not allowing for the difference between the drift of the Argyllshire THE OWNERS OF and that of the Matthew Flinders, which must have been, according to the evidence of Captain Douglas Taylor, which I accept, considerable.

The Matthew Flinders was also to blame. Captain Duncan, who was watching the Argyllshire from the bridge all the time, probably failed to allow for the drift of the Argyllshire towards the Matthew Flinders. If at the time he first anticipated the possibility of a collision-that is, when the Argyllshire was from one to two lengths of the Matthew Flinders from him—he had gone full speed ahead instead of slow, in my opinion the collision would have been avoided. The Matthew Flinders, being a comparatively light ship with plenty of power, gathers speed quickly, and would have got out of the way of the Argyllshire.

It is clear from the evidence of Cruickshank and Roberts, set out above, that the engines of the Matthew Flinders were not put full ahead until just before the collision, when it was too late. Even if up till the time when Duncan went slow ahead, it was the duty of the Matthew Flinders, under Article 21 of the Regulations, to keep her course and speed, as was suggested by plaintiff's counsel, in my opinion the close approach of the Argyllshire constituted a special circumstance which justified the Matthew Flinders, under Article 27, in departing from the rule in Article 21, by going full speed ahead to avoid the Argyllshire.

Apart from the Regulations, it was the paramount duty of both vessels when they came close together to do what is necessary to avoid collision-Marsden's Collisions at Sea, 7th Edition, p. 483-as two American cases cited to support that proposition show. In The B. K. Washburn (1), a schooner becalmed in a difficult position in a river was held partly to blame for not using oars or a small boat to tow her ahead so as to avoid a steamship that ran into her; and in The Bay Queen (2), a sailing boat was held partly to blame because she was not supplied with proper oars and rowlocks to enable her to get out of the way of a steamship that struck her.

Before the decision of the House of Lords in The Admiralty Commissioners v. s.s. Volute (3), it might have been contended that as the negligence of the Matthew Flinders was subsequent in time to that of the Argyllshire, that negligence should solely

ARGYLLSHIRE.

THE

ARGYLLSHIRE.

Macnaughton J.

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S.S.

ARGYLLSHIRE.

THE ARGYLLSHIRE.

be regarded as the cause of the collision, but that is not so now. THE OWNERS OF In Symons v. Stacey (1), Isaacs J. sɛid: “The luminous judgment of Lord Birkenhead L.C., concurred in by the whole House, after passing in review many cases of importance, has settled on an authoritative basis a question long the subject of various attempts Macnaughton J. on the part of jurists to formulate. I refer to the responsibility for damage where the negligence on both sides, though not contemporaneous, is yet so closely connected in point of time and circumstance as not to be clearly severable."

The following remarks of the Lord Chancellor (2) exactly apply to the present case :--' While no doubt, where a clear line can be drawn, the subsequent negligence is the only one to look to, there are cases in which the two acts come so closely together, and the second act of negligence is so much mixed up with the state of things brought about by the first act, that the party secondly negligent, while not free from blame under The Bywell Castle (3) rule, might, on the other hand, invoke the prior negligence as being part of the cause of the collision so as to make it a case of contribution. And the Maritime Conventions Act, with its provisions for nice qualifications as to the quantum of blame and the proportions in which contribution is to be made, may be taken as to some extent declaratory of the Admiralty rule in this respect. The case seems to me to resemble somewhat closely that of The Hero (4). In that case, as in this, notwithstanding the negligent navigation of the first ship, the collision could have been avoided if proper action had been taken by the second ship. In that case this House held both vessels to blame, apparently considering the acts of navigation on the two ships as forming parts of one transaction, and the second act of negligence as closely following upon and involved with the first."

For the same reason I hold that the negligence of the Argyllshire and the Matthew Flinders are so closely connected in time and circumstances as not to be severable, and that they are both to blame for the collision. I do not think that the fault of the Matthew Flinders, considering her as the smaller and slower ship, was so slight so as to excuse her on the authority of the decision in The Great Republic (5), cited and relied on by the plaintiff. Formerly, in an action for damage caused by collision, the rule

(1) 1922, 30 C.L.R. 169 at p. 175.
(2) [1922]1 A.C. 129 at pp. 144-5.
(3) 1879, 4 P.D. 219.

(4) [1912] A.C. 300.
(5) 1874, 90 U.S. Rep 20.

THE KING V.

THE OWNERS OF

S.S.

ARGYLLSHIRE.

THE

ARGYLLSHIRE.

of the Court of Admiralty was that if there was blame causing the accident on both sides they were to divide the loss equally Cayzer v. Carron Company (1), By Section 5 (9) of The Judicature Act of 1876 (Queensland), it was enacted that this rule should apply to all cases for damages arising out of a collision between two ships. In 1911 The Maritime Conventions Act of Macnaughton J. 1911 (1 and 2 Geo. V., c. 57), was passed, by Section 1 of which this rule was altered in all parts of His Majesty's Dominions, except the Dominion of Canada, the Commonwealth of Australia, the Dominions of New Zealand, the Union of South Africa, and Newfoundland. The material parts of this Statute, with an exception relating to s. 419 (4) of The Merchant Shipping Act of 1894, was adopted by the Commonwealth Legislature in Sections 259 to 265 of The Navigation Act of 1912. These sections of the Navigation Act were brought into force by a proclamation of the 31st of March, 1920, as from the 1st of July, 1921. Section 259 (1) which is an exact copy of the first paragraph of Section 1 (1) of The Maritime Conventions Act is as follows:- Where, by fault of two or more vessels, damage or loss is caused to one or more vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault: Provided that, if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally."

I have now accordingly to apportion the degrees of blame, if I am able to do so. There is not much assistance to be got from the reported cases. In The Peter Benoit (2), the Court of Appeal decided that the fault to the degree of which the liability is to be apportioned must be read as meaning fault causing or contributing to the collision. This decision was affirmed by the House of Lords without giving further reasons in 85 L.J.P. 12. The faults of both ships have undoubtedly caused or contributed to the collision. The cases which I have been able to find where the damage has been apportioned and not equally divided are The Rosalia (3), 60 per cent and 40 per cent,; The Sargasso (4), two-thirds and one-third; The Umona (5), three-fourths and one-fourth; and The Bravo (6), four-fifths and one-fifth.

Here in my opinion the Argyllshire committed the first fault

(1) 1884, 9 App. Cas. 881.

(2) 1914, 84 L.J.P. 87.

(3) [1912] P. 109.

(4) [1912] P. 192.

(5) [1914] P. 141.

(6) 1912, 29 T.L.R. 122.