NIPPON YUSEN KAISHA Vs. CHINA NAVIGATION CO , LTD

JUDGEMENT

(1.) On 22 March, 1931 a collision occurred in the harbour of Hong Kong between the appellants' steamship " Toyooka Maru " and the respondents' steamship " Kiangsu." Each vessel blamed the other and cross-actions of damages, subsequently consolidated, were instituted by their respective owners against each other in the Supreme Court of Hong Kong. The trial Judge, Sir Joseph Kemp, C.J., found the " Toyooka Maru " solely to blame and his decision was affirmed by the Full Court on appeal. There were however considerable divergencies of view among the learned Judges below (and also apparently among the nautical assessors who assisted them) on certain aspects of the case. The learned Chief Justice, who sat as a member of the appellate Court, altered the opinion which he had reached at the trial and was ultimately in favour of holding both vessels to blame.

(2.) The material facts are not complicated and are to a large extent common ground. It appears that the " Toyooka Maru " on the morning of the day in question left Kowloon Wharf outward bound shortly after seven o'clock. "When she had proceeded some distance but was still within the harbour waters her master observed a bank of fog approaching the N. E. She was then on the starboard or south side of the channel, being the proper side for an outgoing vessel. Her master, judging it unsafe to proceed in the fog, resolved to anchor and as the local Ordinances forbade vessels to anchor in the fairway he decided to make his way to the anchorage for foreign men of war, shown on the chart to the north of the fairway. To reach this he had to direct his course to the N.E., across the fairway, and at 7-43 a. m. he altered his course accordingly. No incoming vessel had been seen by him. He gave the usual fog- signals by sounding prolonged blasts at short intervals. At 7-44 he heard an answering fog- signal apparently from a vessel at some distance on his starboard bow, and immediately stopped his engines. Several more fog-signals were interchanged between the vessels and at 7-48 the master of the " Toyooka Maru " which still had some way on, hearing a blast from the other vessel close on his starboard bow ordered his engines full speed astern. At 7-49 the " Toyooka Maru " for the first time sighted the other vessel, which proved to be the " Kiangsu," proceeding on a west nort-westerly course at a distance of about 600 feet. A collision was then inevitable and at 7-50 the port side of the " Kiangsu " about amidships struck and buckled over the stem of the " Toyooka Maru." At the time of the collision the "Toyooka Maru" had reached the area marked as the anchorage for foreign men of war and the collision occurred within the anchorage.

(3.) The " Kiangsu " was inward bound. She had entered the harbour waters through the Lyemun Pass at 7-35. At 7-44, as she was proceeding on the northern side of the channel, which was her proper side, she heard a fog-signal some points on her port bow, from a vessel which was invisible in the fog, and which subsequently proved to be the " Toyooka Maru." She assumed that the vessel from which the signal came was outward bound and would be keeping to her own, the southern, side of the channel so that the vessels would pass port to port. The '' Kiangsu " did not stop her engines, but put them to slow and after altering her course a point to starboard she proceeded on her way, sounding fog-signals at short intervals. The fog-signals from the other vessel were heard increasingly near and fine of the " Kiangsu's " port bow and at 7-49 the vessels, as already stated, became visible to each other for the first time. The '' Kiangsu " put her engines full steam ahead and first ported and then immediately starboarded her helm so as to lessen the impact of the then inevitable collision. (The helm orders are in the old form throughout.)