OWNERS AND PARTIES INTERESTED IN S S MALACCA MARU Vs. DEUTSCHE DAMPFSCHIFFFAHRTS GESELLSCHAFT HANSA (OWNERS OF S S MARTIENFELS )

JUDGEMENT

(1.) At 12.35 p. m. on Sunday 16 March 1930, the steamships 'Marienfels' and 'Malacca Maru' were in collision in the river Hughli at a spot south of Pukuria Point Column and north of lower Brul Sand buoy. The 'Marienfels' is a vessel belonging to the plaintiffs-respondents, a German company : her gross tonnage is 8000 tons, her length 495 feet and her beam 58 feet. The 'Malacca Maru' is a Japanese vessel of 5374 tons, length 400 feet and beam 54? feet. The collision occurred in broad daylight: the weather was fine and clear : the wind of no material force. It was flood tide-a spring tide of 3? knots in the navigable channel. The water had risen 17 feet above low water marks and it was still rising. Both vessels were proceeding southwards to sea and the Marienfels' was overtaking. They had left Garden Reach - the 'Malacca Maru' at 9.25 a. M. and the 'Marienfels' some twenty minutes later. The speed of the former was about ten knots and of the latter about 11?. Both vessels were part laden and both were drawing some 20 or 21 feet. Both were in charge of duly licensed pilots, Pilot King navigating the 'Marienfels', Pilot Halford the 'Malacca Maru'. At the time of the collision the bluff of the port bow - 14 feet from the stem - of the 'Malacca Maru' struck the starboard side of the 'Marienfels' a little abaft amidships. The damage sustained by the 'Marienfels' was not such as to prevent her from continuing her voyage to Madras, where her master made a protest on 24 March. The 'Malacca Maru' was more severely damaged and put back to Calcutta, where a protest was made on 25 March. Both pilots made reports to the port authority at Calcutta on the day of the collision.

(2.) On 12 March 1932, the respondent company brought in the admiralty jurisdiction of the High Court at Calcutta the suit out of which this appeal arises. The plaint claimed Rs.64,870 as damages caused by the negligent navigation of the 'Malacca Maru'. The appellants, by written statement filed 25 April 1932, denied negligence and asserted that the collision was caused or contributed to by the negligent navigation of the 'Marienfels', but as the period of two years limited by the Maritime Conventions Act, 1911, had been allowed to elapse they were unable to maintain a cross claim for damages. At the trial in December 1934, Cunliffe J. heard the evidence of Pilot King but Pilot Halford had died in 1931 and his report of 16 March 1930, was the only available means of ascertaining his version of the occurrence. Each side called the master and other witnesses from its vessel. The plaintiff company in addition called two pilots from the Bengal Pilot Service-Pilot Davies and Pilot Garnet; while the defendants called a river surveyor Mr. Oag and Captain Ducat. Amos, Master of the British India Mail Steamer 'Karapara,' plying from Calcutta to Rangoon and the Straits Settlements. Cunliffe J. (17th December 1934) held that both vessels were to blame for the collision and apportioned the blame three-fourths to the 'Malacca Maru' and one. fourth to the 'Marienfels'. On appeal a Division Bench (Derbyshire C. J. and Costello J.) varied this finding and held the 'Malacca Maru' alone to blame. From their decree dated 11 February 1936, the defendants have appealed to His Majesty by special leave.

(3.) By Art. 24 of the General Regulations for Preventing Collisions at Sea every vessel overtaking any other is required to keep out of the way of the other and remains under a duty to keep clear of the other until she herself is finally past and clear. Art. 25, which applies to the part of the Hughli now in question, requires steam vessels to keep to the starboard side of the fairway or mid channel. The local rules governing navigation in the Hughli which were in force at the time contain provisions which modify Art. 24. Rr.5 and 7 are as follows: 5. No steam vessel shall attempt to strive or race the one against the other. When steam vessels are proceeding in the same direction, but with unequal speed, the vessel which is steaming slowest shall in the narrow reaches of the river offer no obstruction whatever by crossing the channel or otherwise to the free passage of the faster vessel and shall ease and, if necessary, stop the engines, as soon as the faster vessel comes abreast in order to allow her to freely pass. The Pilot of the faster vessel, if intending to pass, shall intimate such approach by a prolonged blast from his steam-whistle. But no vessel will be justified in passing such vessel at any of the turning points or bends of the river, nor in a part of the channel so narrow that a third vessel could not with safety pass them. 7. A ball at the foremast head to be shown by every inward and outward-bound vessel. When going full speed the ball to be kept at the truck, but lowered about two fathoms when going slow.