The Asiatic Steam Navigation Co., Ltd vs Sub-Lt. Arabinda Chakravarti

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 229 of 1954

Decision Date: 12 January 1959

Coram: S.K. DAS

In the matter titled The Asiatic Steam Navigation Co., Ltd versus Sub‑Lt Arabinda Chakravarti, the judgment was delivered on 12 January 1959 by a bench of the Supreme Court of India. The petitioner in the case was The Asiatic Steam Navigation Co., Ltd and the respondent was Sub‑Lt Arabinda Chakravarti. The dispute arose under the provisions relating to shipping, collision and negligence, specifically involving the concepts of a vessel “standing on” and a vessel “giving way.” The court considered the relevance of nautical assessors whose advice, while taken into account, was not binding upon the court. The substantive statutory framework comprised the Merchant Shipping Act of 1894 (57 & 58 Vict. c. 60) together with the Regulations of 1910, particularly Articles 21, 23, 25, 27 and 29.

According to the headnote, on the afternoon of 13 December 1940 a cargo ship designated N departed from Madras harbour bound for Calcutta and proceeded into the open sea. The vessel N was navigating a swept channel outside the 980‑yard harbour limit and was correctly positioned on the starboard side of the channel. At approximately 6 p.m. thirty minutes, a patrol ship designated K was travelling in the opposite direction toward Madras harbour and entered the same channel. At about 6 p.m. thirty‑five minutes, the master of N attempted to overtake K by moving to the port side based on an erroneous belief that K was proceeding in the same direction and therefore was not an on‑coming vessel. By 6 p.m. forty‑five minutes, when K first sighted N on its port bow, the two vessels were opposite each other near the centre line of the channel, with a separation of slightly more than a mile. N persisted in its portward course, crossed the centre line and entered the incorrect side of the channel. At approximately 6 p.m. forty‑eight minutes the distance between the vessels had reduced to less than a mile. Recognising that N was converging, K attempted to avoid collision by turning hard to port and signalling this manoeuvre. In response, N turned to starboard in an effort to return to the correct side of the channel and to move out of K’s way. At about 6 p.m. forty‑nine minutes, foreseeing an imminent collision, the commander of N ordered the engines to be put full astern; however, the action proved too late and a collision occurred at roughly 6 p.m. fifty‑one minutes.

The owner of vessel N, acting as the appellant, instituted legal proceedings seeking damages from the respondent, who was one of the officers responsible for navigating K. The plaintiff alleged that the collision resulted from negligent navigation by K. At trial, the judge, assisted by nautical advisers, concluded that K had altered her course improperly at that critical moment and should have turned to starboard rather than to port, and that, if further action was required, the engines should have been placed in full reverse. The trial court accordingly found fault with K.

Upon appeal, the High Court, also aided by two assessors, reversed the trial judge’s findings and dismissed the suit. The appellant then appealed to the Supreme Court, contending that K should have anticipated that N would eventually correct her navigational error and return to the starboard side of the channel. Consequently, as the vessel “standing on,” K ought to have maintained her course and speed in accordance with Article 21 of the 1910 Regulations, and that adherence to that provision would have averted the collision.

In this case, the Court observed that the vessel K, being the “standing on” vessel, should have maintained its course and speed as required by Article 21 of the Regulations of 1910 made under the Merchant Shipping Act 1894, and that had K complied with that requirement, the collision would not have occurred. As in the lower courts, the Supreme Court also received assistance from two nautical assessors. The Court held that K was justified in taking a port‑side action at 6 p.m. 48 minutes when a collision seemed imminent, relying on Articles 27 and 29 of the same Regulations, which provide that when a vessel is so close to another that avoidance cannot be achieved by the “giving way” vessel alone, the vessel must also take such action as will best help to avert the collision. The Court further held that the vessel N was negligent in taking a hard starboard maneuver instead of complying with the provisions of Article 23 applicable to the “giving way” vessel, by failing to slacken speed or reverse between 6 p.m. 45 minutes and 6 p.m. 48 minutes. The decisions in The Tioga (1945) 78 LI L Rep 1 and The Empire Brent (1948) 81 LI L Rep 306 were distinguished. The judgment explained that nautical assessors advise the Court on nautical matters, but the ultimate decision rests solely with the Court; even on purely nautical issues the Court is not bound to follow the assessors’ advice, although great attention must be paid to their opinions because they are the principal source of information on such points, and any departure from their advice must be justified. The assessors appointed for an appeal are additional to those consulted at trial and are not substitutes; if one or two advisers are preferred, it is because their advice is considered more persuasive within the Court’s judgment. The relevant articles of the 1910 Regulations were reproduced in the judgment. The judgment was issued in the Civil Appellate Jurisdiction as Civil Appeal No. 229 of 1954, arising from the Bombay High Court judgment and decree dated 28 February 1952 in Appeal No. 34 of 1952, which itself stemmed from the High Court judgment and decree dated 5 February 1951 in Admiralty Suit No. 1 of 1943. Counsel for the appellants and respondent were listed, and the judgment was delivered on 12 January 1959 by Justice S.K. Das, following a certificate from the High Court of Judicature at Bombay confirming the appeal from the Division Bench decision dated 27 and 28 February 1952.

In the appeal, the Court noted that the Bombay High Court on 27 February 1952 had set aside the judgment of a single High Court judge dated 8 August 1950 in Admiralty Suit No. 1 of 1943. The appellant, Asiatic Steam Navigation Company Ltd., was described as a corporation incorporated in the United Kingdom with its registered office in London and an operational office in Calcutta. The respondent was identified as the former Sub‑Lieutenant Arabinda Chakravarti, who at all relevant times held a commission in the Royal Indian Navy, whose headquarters were then located in Bombay. The dispute arose from a collision that occurred in a swept channel a short distance outside Madras harbour on 13 December 1940 at approximately 6 minutes 51 seconds p.m. The vessels involved were the cargo ship S.S. Nizam, a vessel of 5,322 gross tons, and H.M.S. Kalawati, a patrol ship of 1,185 tons; for ease of reference the judgment called these ships the Nizam and the Kalawati. At the material times the appellant owned the Nizam, while the respondent, as the judgment stated, was one of the officers in charge of and responsible for navigating the Kalawati. The chief officer of the Nizam was F.C.H. Mason and the master was Malcolm John McLure. The commander of the Kalawati was Henry Lee and Arabinda Chakravarti, as previously mentioned, was among the officers responsible for navigating the Kalawati at the relevant moment. The appellant’s pleading set out the facts as follows: on the afternoon of 13 December 1940 the Nizam, then under charter to the Ministry of Shipping, departed Madras harbour bound for Calcutta carrying cargo and was described as being “tight, staunch, strong, well manned and in every respect sound and fit.” A few minutes after 6 45 p.m., when the weather was fine, the sky clear but cloudy, the moon full, the wind moderate, the sea calm and the tide setting from north to south, the Nizam was proceeding in a swept channel outside the harbour. The swept channel was approximately one mile wide and seventeen miles long. The Nizam was on a proper course toward the open sea, proceeding in a proper and seamanlike manner, and was positioned on the starboard side of the channel. The Kalawati was on an opposite course, making way toward Madras harbour. At that time the Nizam had the Kalawati about one point on its starboard bow, meaning that the two vessels were roughly one mile apart on courses that would cause them to pass port‑to‑port with a separation of about half a mile. The Kalawati then signalled a “light” signal to the Nizam; the signal was not legible, and the Nizam replied with a signal requesting a repetition of the Kalawati’s signal. The Nizam continued hard to starboard, but the Kalawati

After the Kalawati had turned her course toward port, the vessel moved into the path of the Nizam, which continued to steer toward starboard. When the two ships approached each other at a distance that made a collision unavoidable, the master of the Nizam ordered the engines to be put full astern. Despite this action, the Kalawati was steered across the bows of the Nizam, causing the starboard quarter of the Kalawati to strike the forward part of the Nizam. The Kalawati then swung around the Nizam’s bow and struck the Nizam a second time. In the plaint, the appellant alleged that the collision resulted from the negligent navigation of the Kalawati. The plaintiff identified four specific acts of negligence: first, the Kalawati’s decision to alter her course to port so that she would cut across the Nizam’s bows; second, the Kalawati’s failure to stop, to go astern, or to bring her helm hard to starboard when there was still time to avoid the collision; third, a breach of the Regulations for the Prevention of Collisions at Sea because the Kalawati did not keep to her proper side of the channel—namely the starboard side—nor keep out of the way of the Nizam when required; and fourth, the failure to maintain a proper look‑out on board the Kalawati. The appellant claimed damages amounting to Rs 88,000 and odd, and set out the particulars of the claim in Schedule B attached to the plaint.

In his written statement, the respondent denied any liability for the damage suffered by the Nizam. The respondent recounted that at about 6:45 p.m. on 13 December 1940 he was the officer on watch aboard the Kalawati, which was steering a course of north 800 west while keeping to the Kalawati’s proper side of the channel. At that moment the Nizam was sighted on the port side, approximately twenty yards away and about two and a half miles distant, making a parallel and opposite course toward the open sea and steering eastward. Because of wartime regulations, the lights of both vessels had been blacked out. According to the courses then being pursued, the two ships should have passed each other port to port. The respondent therefore signalled the Nizam with a portable Aldis lamp and asked for her identity. The Nizam answered with one long flash, indicating her readiness to receive signals. While the respondent was about to continue signalling, he observed that the Nizam had altered her course to port, causing her to converge on and cross the Kalawati’s course. At that point the respondent ceased signalling.

According to the evidence, the Nizam persisted on the incorrect course she had taken until the bow of the Nizam was directly alongside the port side of the Kalawati, making a collision appear inevitable while the two vessels were roughly two cables apart. To avoid the imminent danger, the officer on the Kalawati ordered that the Kalawati be put hard aport and at the same time signalled to the Nizam that the Kalawati was altering her course. Instead of maintaining the course that would have allowed the Nizam to pass the Kalawati on the starboard side, the Nizam attempted to correct the earlier error by steering back toward her proper side of the channel. She consequently altered her heading to hard starboard, creating a situation in which it became impossible to prevent a collision either by reducing the Kalawati’s speed or by moving the Kalawati astern. The respondent’s case was that the collision resulted from three circumstances: first, the Nizam failed to keep to her designated side of the channel; second, she continued to steer toward port in a manner that placed the Kalawati in a perilous position, forcing the Kalawati to take evasive action; and third, the Nizam was negligent in turning hard starboard after having been repeatedly informed that the Kalawati had altered her course to port. The respondent therefore argued that the Nizam’s decision to steer starboard after the Kalawati had taken port action was the proximate and effective cause of the collision.

The pleadings identified several issues, but the principal question for the trial judge was whether the negligent act of the Nizam or that of the Kalawati caused the collision. Issues numbered one, two and three were directly related to this question. Additional issues, numbered four and six, concerned contributory negligence and, assuming that both vessels bore responsibility, the proportion of fault attributable to each vessel. The trial judge ruled in favour of the appellant on the principal question. In his findings he stated that the first helm action taken at the critical moment was correctly made by the Nizam, who went hard starboard, whereas the Kalawati turned to port when there was no imminent danger of collision. He concluded that, as a standing‑on vessel, the Kalawati’s decision to turn to port was erroneous and, had she not turned, there would have been no perilous situation for the two vessels. Consequently, the judge expressed the opinion that the Nizam was justified in steering starboard and that the Kalawati should have maintained her course in accordance with the rule applicable to a standing‑on vessel, rather than turning to port prematurely.

The trial judge held that the Kalawati, as a vessel standing on the water, should have kept her course until the very last safe instant. He observed that, in his opinion, the Kalawati turned to port considerably earlier than any justification existed for such a maneuver. The judge further stated that, had the Kalawati been required to take any evasive action, the proper maneuver would have been to turn to starboard, which would have entirely averted the collision. He added that the nautical advisers he consulted all agreed with the view he was adopting regarding the correct course of action. The judge also expressed that, in his assessment, the Nizam had put her engines full speed astern at the earliest chance, responding to the developing danger. He noted that the Nizam was recorded as having been put full speed astern roughly two and a half minutes before the impact occurred. Even though the testimony of McLure described the Nizam as moving very slowly before the collision, the judge considered that description a slight exaggeration. He concluded that, by that time, the forward momentum of the Nizam had already been essentially cancelled, and evidence showed she was proceeding at three to four knots instead of her normal nine to ten knots. The judge was clear that it was fundamentally wrong for the captain of the Kalawati not to have ordered his engines full speed astern as soon as the perilous situation became apparent. Rather than slowing down, the captain ordered the vessel to proceed at full speed ahead, a decision the judge described as both erroneous and driven by desperation. He explained that the captain seemed to hope that, by maintaining full ahead thrust with a little luck, the Kalawati would clear the bow of the Nizam. Consequently, the judge concluded that the Kalawati had improperly altered her course at the moment she did, and that any necessary maneuver should have been a turn to starboard followed by full astern thrust. The judge also relied on the written reports of the nautical experts, which confirmed that a starboard turn would have been the standard practice in such circumstances. He emphasized that the Kalawati’s failure to reduce speed not only increased the risk but also eliminated any realistic chance of avoiding impact once the vessels were on converging courses.

In light of those findings, the trial judge held that the issue of contributory negligence did not arise, nor was it necessary to assess the relative share of fault between the vessels. The parties agreed to postpone determination of damages until the negligence questions were finally resolved. After the trial judge rendered his findings on negligence, the damage to the Nizam was quantified at Rs. 76,893-2-8, and a decree for that sum with interest at four per cent per annum from June 19, 1941, was issued. The respondent then filed an appeal, which was heard by Chief Justice Chagla and Justice Bhagwati, each assisted by two assessors, similar to the original trial. On the principal issue of whether the collision resulted from the negligent conduct of the Nizam or of the Kalawati, the appellate judges reversed the trial judge’s findings. The appellate bench examined the same factual material, sought additional guidance from the assessors on matters of seamanship, and ultimately reached a different conclusion regarding liability. Their decision marked a departure from the trial court’s view that contributory negligence was irrelevant to the dispute.

The appellate judges observed that, based on the evidence, they had to find as a fact that the vessel Nizam did not change her course to starboard at six forty‑five p.m., but instead made the alteration considerably later, most likely at six forty‑eight p.m., when she signalled the change by sounding a single blast. They then explained that this factual finding required an examination of its impact on the issue of the defendant’s negligence. The judges asked whether the defendant was justified in turning his ship, the Kalawati, to port at six forty‑eight p.m. if, at that moment, the Nizam was still steering to port, and whether a reasonable probability of a collision existed at that time which would have compelled the Kalawati to alter its course to port in order to avoid the collision. Recognising that the determination of this question involved specialised nautical skill, the judges sought the assistance of two assessors. Commander Kale expressed the firm opinion that, assuming the Nizam continued on the same course she had maintained since six thirty‑eight p.m., there was a reasonable probability of a collision at six forty‑eight p.m., and that the defendant’s duty was to avoid it as far as possible; according to Commander Kale, the only practicable means of avoidance was to steer the Kalawati to port. Capt Malcolm dissented, arguing that the Kalawati should have turned to starboard rather than to port, reasoning that the Kalawati ought to have anticipated that the Nizam would at some point turn starboard and therefore should have steered to the right side instead of the left. The appellate judges indicated that they were inclined to accept Commander Kale’s opinion as the more appropriate course of action under the circumstances. They further noted that, as the Nizam was the vessel required to give way, she bore the primary obligation, if necessary, to stop or proceed astern, and that the evidence made it difficult to reject the conclusion that an order to go full speed astern could have been given earlier, either by the captain himself or by Mason. Both assessors agreed that, as a matter of nautical skill, it would have been possible and indeed should have been done, namely that the ship should have been ordered to go full speed astern before six forty‑nine p.m. In the judges’ opinion, therefore, two factual failures contributed to the collision that occurred at six fifty‑two p.m.: first, the Nizam’s failure to give a signal that she was turning starboard, even if one accepts the plaintiff’s claim that she attempted the turn at six forty‑five p.m.; and second, the Nizam’s failure to order full speed astern earlier than six forty‑nine p.m.

In the Court’s view, if the Nizam had given the required signal, it would have provided the Kalawati with a clear and full warning of the Nizam’s intended or actual maneuver at that moment. The Court also identified another contributing factor to the collision: the Nizam’s failure to order full‑speed astern before 6‑49 p.m. The combined effect of these two omissions, the Court held, led to the accident that occurred at 6‑52 p.m. Consequently, the appeal was allowed, the appellant’s suit was dismissed, and costs were awarded against the appellant throughout the proceeding. The Court reiterated that the Bombay High Court had issued a certificate of fitness in accordance with Article 133 of the Constitution, and that the present appeal was instituted before this Court pursuant to that certificate. Assistance in the matter was provided by two nautical assessors, Captain J. A. Cleeve and Commodore A. K. Chatterjee, whose expert opinions were taken into consideration during the hearing.

At the outset, the Court found it necessary to clarify two important points. The first point concerned the manner in which the learned judges of the Bombay High Court had dealt with the evidence of the respondent and his witnesses. The appellate judges observed that neither the trial judge nor the appellate judges had relied upon, or placed significant weight on, the respondent’s testimony, because they considered the evidence of those witnesses to be lacking in confidence. The appellate judges themselves remarked, “We do not blame the learned Judge because, when the evidence of both these witnesses was laid before us, we also felt that the evidence was not given in a manner which would inspire confidence.” Counsel for the appellant, however, presented the entire body of evidence furnished by the appellant and his witnesses, and also submitted selected portions of the respondent’s evidence that, in the counsel’s opinion, supported the appellant’s case. In forming its conclusions, the Court proceeded on the premise that, since the lower courts had deemed the respondent’s witnesses unreliable, the central issue of negligence must be decided on the basis of the appellant’s witnesses. The trial judge had adopted one interpretation of that evidence, while the appellate judges had reached a different conclusion. Because their findings were not concurrent, the Court permitted the appellant’s counsel to place the complete set of the appellant’s witness statements before it to support the appellant’s arguments.

The second point addressed the role of the nautical assessors. The Court noted that it was not disputed that nautical assessors are called upon to advise the Court on matters of seamanship and nautical practice, and it quoted the observation of Lord Justice Scott in The Clan Lamont that “their advice is expert evidence, admissible in Admiralty Courts, on all issues of fact about seamanship.” Nonetheless, the Court emphasized that the ultimate decision in any case rests with the Court itself, and that even in matters that are purely nautical, the Court is not bound to follow the assessors’ advice. The Court stressed that when questions of nautical science and skill arise, great weight must be given to the assessors’ opinions because they constitute the sole source of technical information on those points, and that a reasoned explanation must be provided if the Court chooses to depart from that advice. Referring to the Australian case, the Court noted that Lord Dunedin cautioned against posing to assessors a question tantamount to asking them whether they would find for the plaintiff or the defendant, thereby repudiating the notion that the views of assessors in an appellate court merit greater respect than those of assessors below. The Court affirmed that assessors in an appellate tribunal are additional to, not a substitute for, those previously consulted, and that their advice is to be considered only insofar as it is the more acceptable in the judgment of the Court.

The Court observed that asking assessors whether they would decide in favour of the plaintiff or the defendant amounted to an impermissible question, and it rejected any suggestion that the opinions of assessors in an appellate court deserve greater respect than those of assessors in lower courts. It clarified that assessors appointed for an appeal do not replace the assessors previously consulted; rather, they serve as additional advisers. When the Court gives preference to the view of one adviser over another, it does so because the advice itself appears more persuasive in the judgment, not because of the adviser’s hierarchical position. Consequently, there can be no notion of an appeal from one set of assessors to another. The Court affirmed that it has applied the same principles to the advisory input provided by the assessors in the present matter and indicated that it will refer to that advice wherever it is relevant to the issues under consideration. The central issue for determination was to ascertain which of the two vessels, the Nizam or the Kalawati, bore responsibility for the collision, and, if both were at fault, to quantify the extent of each party’s liability. To resolve this issue, the Court first needed to establish the courses each vessel was steering at the relevant moment and to identify any alterations in those courses. In reaching those factual conclusions, the Court emphasized that the regulations promulgated under the Merchant Shipping Act of 1894 must be kept in mind. Both sides’ counsel conceded that the applicable regulations were those issued in 1910 by an Order in Council dated 13 October 1910. Those 1910 regulations set out rules that all vessels, whether on the high seas or in any adjoining navigable waters, were required to follow at the time of the incident. Articles 17 through 27 of those regulations dealt specifically with steering and sailing rules. Article 17 applied to sailing vessels, whereas Article 18 governed steam vessels. Article 18 stipulated that when two steam vessels were on a converging course that created a risk of collision, each should alter its course to starboard so that the vessels would pass each other on the port side. Article 19 provided that when two steam vessels were crossing and a risk of collision existed, the vessel that had the other on its own starboard side must keep out of the way of the other. The vessel obliged to keep out of the way is termed the “give‑way” vessel, and the vessel that is to be kept clear is the “stand‑on” vessel. In the present dispute, there was no disagreement that the Nizam was the give‑way vessel and the Kalawati was the stand‑on vessel. The Court noted that Article 21 also bears on the matter, and it would consider the effect of that provision in the course of its analysis.

In this case the Court examined the provisions of the 1910 Regulations that were relevant to the question before it. Article 21 stated that when the rules required one of two vessels to keep out of the way, the other vessel was to maintain its course and speed. Article 23 required any steam vessel that was ordered by the rules to keep out of the way to, on approaching the other vessel, reduce speed, stop, or reverse if necessary. Article 24 provided that, notwithstanding any other rule, a vessel overtaking another had to keep out of the way of the vessel being overtaken. Article 25 was described as very important for the present purpose because counsel for the appellant relied heavily on it. The article was quoted in full: “In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid‑channel which lies on the starboard side of such vessel.” The Court noted that there had been considerable difficulty in defining what constituted a ‘narrow channel’. In the trial court the respondent denied that the swept channel outside Madras harbour fell within that definition, but the lower courts proceeded on the assumption that the channel was indeed a narrow channel within the meaning of Article 25, and the Court adopted the same assumption. Article 27 was also relevant. It directed that in obeying and construing the rules, due regard must be given to all navigation dangers and to any special circumstances that might require a departure from the rules in order to avoid immediate danger. The residuary provisions, Articles 29 and 30, were then considered. Article 29 provided that nothing in the rules would excuse any vessel from the consequences of a failure to keep a proper look‑out or from neglecting any precaution required by ordinary seaman practice or by the special circumstances of the case. Article 30 declared that nothing in the rules would interfere with a special rule duly made by a local authority for navigation of any harbour, river or inland waters. After outlining these provisions, the Court turned to the evidence that would determine negligence. It stated that it would not undertake a detailed third‑level review of all evidence, but would focus on those salient points that it considered determinative of the principal issue, namely negligence for the collision that occurred at about 6‑51 p.m. on 13 December 1940. For that purpose the Court referred to the testimony of three witnesses for the appellant—Mason, McLure and Abdul Nabi—and indicated that the effect of their evidence would be examined.

The judges of the Bombay High Court who considered the appeal reached conclusions that differed from those reached by the trial judge. Accordingly, one of the matters for this Court to examine is whether the appellate court provided clear and persuasive reasons for departing from the trial judge’s view of the evidence. It is relevant to note that the three witnesses who later testified for the appellant were originally examined by Justice Blagden in April 1945 and again in February 1946. During those examinations Justice Blagden recorded some observations about the manner in which the witnesses gave their testimony, and those observations have been highlighted to this Court by counsel for the appellant. However, Justice Blagden had ceased to be a judge of the Bombay High Court before the suit was finally tried. The subsequent examination of the respondent and his witnesses was conducted in 1950 by Justice Coyajee, who tried the suit and ultimately rendered a judgment in favour of the appellant. The evidence presented to the trial judge indicates that on 13 December 1940, at approximately 4 hours 45 minutes in the afternoon, the vessel Nizam took a pilot on board and proceeded out to sea. At about 5 hours 22 minutes, the pilot was taken off and the ship continued at full speed under the orders of Mr McLure, navigating the swept channel at a speed of roughly ten and a half knots. Mr McLure transferred command to Mr Mason at about 5 hours 55 minutes, at which time Nizam was steering a course of north 86 degrees east, allowing for a slight leeway to port to compensate for the tidal set from north to south. At roughly 6 p.m., the third officer relieved Mr Mason; Mr Mason subsequently returned to the bridge at 6 hours 30 minutes and resumed his watch. He testified that just before leaving the bridge at 6 p.m. he had checked the bearings of the Nizam and found the vessel positioned two cables on the proper side of the channel.

Shortly after 6 hours 30 minutes, Mr Mason reported sighting a vessel about two points on the starboard bow of the Nizam, at an estimated distance of three miles. He believed that the Nizam was overtaking this other vessel, which his evidence identifies as the Kalawati. Consequently, at 6 hours 38 minutes, he altered Nizam’s course eight degrees to port because he thought the two ships were on converging courses. At 6 hours 43 minutes the look‑out on the Nizam rang the bell twice to indicate the presence of a vessel—identified as the Kalawati—on the starboard side. Mr Mason then stated that at approximately 6 hours 45 minutes the Kalawati was about one mile on the Nizam’s starboard bow and was clearly observed to be crossing from starboard to port. The Kalawati subsequently sent an Aldis lamp signal; Mr Mason answered with a torch signal “I M I”, requesting a repetition of the original signal. He then ordered the ship to go astern, explaining that under certain wartime orders a merchant vessel was required to turn away from any ship that signalled. At 6 hours 47 minutes the Kalawati was several points on the port bow of the Nizam, and by about 6 hours 48 minutes the Kalawati altered her course to port, indicating the change with two short blasts.

In this case, the Court set out a brief summary of the events that led to the collision, as recounted by Mason. Mason stated that after the Kalawati altered its course to port and signaled the change with two short blasts, he responded with one short blast to indicate that the Nizam was turning to starboard. He then said that at approximately 6 p.m. 49 min McLure came on board and ordered the vessel to go full speed astern. Despite that order, the collision occurred at about 6 p.m. 51 min. McLure’s testimony was that he returned to the bridge at around 6 p.m. 48 min after hearing the two short blasts from the Kalawati, observed the Kalawati turning to port, and immediately ordered full speed astern together with three short blasts, yet the vessels still struck within roughly two minutes. Abdul Nabi, who served as the Quarter Master of the Nizam, testified that Mason came aboard at about 6 p.m. 30 min when the ship was on a course of north 86 degrees east. He reported that at about 6 p.m. 40 min—ten minutes after Mason’s arrival—a command was given to steer eight degrees to port, which he obeyed. Five to ten minutes later he received another order to revert to the former course, and subsequently a final order to go hard astern at the moment he heard two blasts from the Kalawati. The Court noted that Abdul Nabi’s evidence differed markedly from Mason’s regarding the timing of the Nizam’s hard‑astern maneuver and the sequence of course alterations from north 86 degrees east to eight degrees port, back to the original course, and then hard astern. The Court indicated that these discrepancies would be examined later. From Mason’s evidence three key points emerged: (a) that at about 6 p.m. 45 min the Nizam was on the correct side of the channel; (b) that the Nizam turned hard astern at roughly the same time to present its stern to the Kalawati in compliance with wartime orders; and (c) that the Kalawati turned to port at about 6 p.m. 48 min after having observed the Nizam’s hard‑astern maneuver three minutes earlier. Assuming Mason’s version of these three circumstances is correct, and that the Kalawati was on the wrong side of the channel when it turned, the responsibility for the collision would be difficult to dispute. Judge Coyajee, J., accepted Mason’s evidence on these three points and held that the liability lay with the Kalawati, because it turned to port after seeing the Nizam turn hard astern three minutes earlier. The learned judges who heard the appeal later questioned the acceptance of Mason’s evidence regarding the Nizam’s hard‑astern turn at 6 p.m. 45 min, but that analysis is addressed in the subsequent portion of the judgment.

In the appeal, the judges did not accept Mason’s testimony that the vessel Nizam had turned hard astern at about 6:45 p.m. in order to present her stern to the Kalawati. Instead, after examining the evidence of McLure and Abdul Nabi together with Mason’s statements, they concluded that it was impossible to sustain the appellant’s claim that Nizam turned to starboard at 6:45 p.m.; the more probable sequence was that Nizam turned to starboard at approximately 6:48 p.m., after hearing the Kalawati’s signal that she was turning to port. In other words, the learned judges found that the Kalawati had first turned to port in an effort to avoid an imminent collision, and only then did Nizam alter her course to starboard to reach the proper side of the channel. The question before the Court was which of these two versions was correct. After a careful review of the evidence and the arguments presented by counsel, the Court held that the view of the appellate judges was the correct one. According to Mason, he had checked the bearings of Nizam before leaving the bridge at 6 p.m., using bearings from the Madras Light House and a conspicuous white house on the north side of the harbour, and found Nizam to be two cables on the proper side of the channel. There should have been a Dan buoy in the mid‑channel to mark the centre line; Mason said he looked for it but did not find it. A fairway buoy was located at the mouth of the channel near the open sea. It was undisputed that the Kalawati entered the channel south of this fairway buoy and, at the moment of entry, was on the wrong side of the channel. The relevant issue was the position of the two vessels at about 6:45 p.m., when they were roughly a mile apart. Mason’s own evidence showed that at that time both vessels were near the mid‑line of the channel. Although Nizam had been about two cables on the proper side at 6 p.m., she had altered her course 80 degrees to port at about 6:38 p.m., according to Mason. Abdul Nabi’s testimony indicated that Nizam had altered her course to port by about ten degrees. Even allowing for tidal set, if Nizam had continued on that port course in order to overtake the Kalawati—as Mason then believed the Nizam was attempting to overtake—the vessel would have crossed the mid‑line and entered the wrong side of the channel. This circumstance was considered significant.

It was noted that the plaint did not allege that the vessel Nizam had altered her course to port with the intention of overtaking the vessel Kalawati, a misconception that both ships were travelling in the same direction. Nevertheless, the evidence made it clear that the Nizam did change her course to port at approximately 6:38 p.m. and that, had she maintained that altered heading until about 6:48 p.m., she would have been positioned close to the mid‑line of the channel or just beyond it at the critical moment. The witness Mason acknowledged this change and, during cross‑examination, stated that at 6:45 p.m. he was roughly in the middle of the channel while the Kalawati was steering a crossing course. Mason also prepared a chart, marked as Exhibit A, to illustrate the relative positions of the two vessels. The chart indicated that at around 6:45 p.m. the Nizam was on the mid‑line and, if she had persisted with the portward course, she would have moved onto the wrong side of the channel by about 6:48 p.m. Although the Kalawati had entered the channel south of the fairway buoy—an area designated as the wrong side—she was navigating on a course of north 80° west while allowing for a southerly drift of roughly one to one and a half knots. By following that course, the Kalawati would also have been near the mid‑line at approximately 6:45 p.m. and would have been on the right side of the channel at 6:46 p.m., a fact that the chart likewise demonstrated.

Counsel for the appellant challenged the accuracy of Exhibit A, but the chart had been prepared by the appellant’s own witness; consequently, the depiction of the Nizam’s position must have been based on the course and location presented by the appellant’s witnesses. The Court found no compelling reason to reject the chart. At the Court’s request, assessors produced an additional chart that plotted the vessels’ positions using the following assumptions: the Nizam’s speed at about 10.2 knots, the Kalawati’s speed at about 11 knots, a tidal set of roughly 0.71 knots, and a swept‑channel length of approximately 18 miles. This second chart also showed the Nizam on the mid‑line at 6:45 p.m. and the Kalawati having crossed the mid‑line onto her right side of the channel. If the tidal set had been two or three knots, as some witnesses asserted, both vessels would have been situated outside the swept channel; moreover, if the Kalawati had been sighted two points on the starboard bow of the Nizam, she would have been farther south of the southern limit of the swept channel. After considering all the evidence, the Court concluded that at the material time of 6:45 p.m. both the Nizam and the Kalawati were positioned near the mid‑line of the channel, perhaps slightly on the right side, and the distance between them was about one mile.

The Court observed that at the time in question the two vessels were positioned either on the correct side or the opposite side of the channel, and that the separation between them measured roughly one mile. It noted that the appellant’s counsel had advanced a detailed argument based on Article 25, which obliges every steam vessel navigating a narrow channel to keep to the starboard side of that channel. However, the Court found that this argument lost much of its persuasive force because, at the material moment, both vessels were situated close to the centre line of the channel and, according to the testimony of Mason, the vessel Kalawati was then moving across towards the starboard side of the channel. The Court further recorded the opinion of one of the assessors, Commodore Chatterjee, who expressed that if the Kalawati had been approaching from the south it would have been simpler for her to enter the channel to the south of the fairway buoy, and that such a maneuver would not constitute a breach of the navigation rules unless the Kalawati was obstructing another ship that was attempting to exit the channel. Captain Cleeve was also quoted as saying that, as the master of a merchant ship, he would never undertake such a manoeuvre, whereas as a naval commander he might consider it permissible; he added that, although the action might conflict with the spirit of the regulations, it would not amount to a violation of them. The Court reminded that the Kalawati had entered the channel at approximately 6:25 p.m., at which time the Nizam was roughly seven miles distant, and consequently concluded that the fact that the Kalawati entered the swept channel south of the fairway buoy was not decisive for determining negligence. Reiterating an earlier observation, the Court identified the crucial issue as the exact positions of the two vessels at the critical time of about 6:45 p.m.; the evidence, in the Court’s view, left no doubt that at that moment both vessels were near the centre line of the channel. The Court then turned to the events that followed. Mason testified that between 6:38 p.m. and 6:41 p.m. he believed he was overtaking the Kalawati; from 6:41 p.m. to 6:45 p.m. he was uncertain, and when at 6:45 p.m. the Kalawati signalled the Nizam, Mason realised that the Kalawati was on a crossing course. Mason claimed that he subsequently altered his course to hard starboard. The Court noted that this portion of Mason’s evidence was directly contradicted by the testimony of Abdul Nabi and was not corroborated by several other circumstances that the Court intended to examine. While acknowledging that none of the witnesses could give the exact time with watch‑level precision and that their statements about timing were necessarily approximate, the Court emphasized that Abdul Nabi was explicit in stating that Mason first ordered the Nizam to steer eighty degrees to port, then gave a second order to return to the original course, and finally issued an order to go hard astarboard. If Abdul Nabi’s account is accepted as truthful, then, even after allowing for the approximate timing, Mason’s claim that he changed the Nizam’s course to hard astarboard at about 6:45 p.m. cannot be sustained. The Court therefore proceeded to consider the subsequent circumstances that would further illuminate this discrepancy.

The Court observed that if Mason had truly ordered the Nizam to go hard astarboard, the vessel should have given a signalling blast to show the change of direction. The evidence clearly showed that it was the Kalawati which produced two short blasts at about 6 p.m. 48 minutes, indicating her intention to turn to port. In response, the Nizam emitted one short blast signalling that she was turning to starboard. The Court therefore questioned why, if the Nizam had already altered her course three minutes earlier at 6 p.m. 45 minutes, no blast had been sounded at that earlier moment. The Court referred to Article 28, which requires any steam vessel in sight of another to indicate the course it is taking. Mason had suggested in his testimony that Article 28 might not apply during wartime, yet he had to concede that a few minutes later the Nizam did emit a short blast in reply to the Kalawati’s signals. The Court found that wartime does not suspend the duty imposed by Article 28, and that the Nizam was obliged to signal a starboard turn if it had actually occurred at 6 p.m. 45 minutes. Consequently, the Court agreed with the appellate judges that the Nizam did not change to starboard at the time Mason asserted; instead, the Nizam maintained her port course until about 6 p.m. 48 minutes and only turned after hearing the Kalawati’s two blasts. This conclusion was supported by two significant factual circumstances.

The first circumstance was the testimony of McLure, who admitted that, given the speed and conditions immediately before the collision, the Nizam would need roughly two and a half minutes to swing ninety degrees with the helm hard over. Had Mason’s statement been correct and the Nizam had been ordered hard astarboard at 6 p.m. 45 minutes, the vessel would have been heading back toward Madras at the instant of the collision. McLure expressly stated that, if Mason’s version were true, he would have expected his ship to be moving at right angles to its former course, which was not the case when the collision occurred. Moreover, the assessors agreed that once the wheel was placed hard starboard, it could not be turned further in that direction. If more than five minutes had elapsed after the wheel was set hard starboard, the vessel would have continued swinging starboard, completing an approximate 180‑degree turn within five minutes. By 6 p.m. 48 minutes, the Nizam would therefore have been at right angles to its previous heading, as McLure had indicated. This evidence, according to the Court, undermines Mason’s claim that the Nizam’s course was altered to hard astarboard at 6 p.m. 45 minutes, and it supports the conclusion that the Nizam remained on its original course until the later signal from the Kalawati.

The second important circumstance identified was that McLure acknowledged he knew of no helm action taken on the Nizam at any time between 5:55 p.m. and 6:48 p.m. In his testimony he stated: “First I heard at 6:43 p.m. two bells indicating an object on the starboard bow. I was still in my cabin at the time, reading Admiralty messages. I heard two blasts from the other ship at 6:48 p.m. I have no recollection of feeling any helm action of my ship before that. I immediately went up on the bridge. The Nizam did not sound one blast until I had reached the top of the ladder. That would normally suggest that the Kalawati had turned to port first.” McLure further explained that when a vessel changes course and gives a signal, the change of course and the signal must occur simultaneously. Consequently, it would be surprising if McLure did not notice a helm movement to hard starboard in the event that the Nizam had indeed been put hard starboard at 6:45 p.m.

The assessors were consulted on this point. Commodore Chatterjee testified that a hard‑over of the helm would be felt even by a person who was asleep. Captain Cleeve added that the master of a fast ship would perceive a helm action sooner than the master of a slower ship, probably twenty to thirty seconds earlier. Nevertheless, McLure reported feeling no helm action at all up to 6:48 p.m. This observation undermines Mason’s claim that he altered the Nizam’s course to hard astarboard at 6:45 p.m.

Mason’s justification for the alleged hard‑starboard turn at 6:45 p.m. was an alleged wartime order requiring a merchant vessel, when challenged, to turn away from the challenging vessel. That explanation is unconvincing because no such wartime order was produced as evidence. Exhibit C, the Surveyor’s report dated 27 January 1941, records the reason for the starboard action as follows: “At 6:45 p.m. the other vessel appeared to be about one point on the starboard bow and about one mile distant and to be bearing to cross the bows of s.s. ‘Nizam’. The helm was put hard astarboard in order to pass astern of the other vessel.” The report makes no reference to any wartime directive or regulation.

In his evidence, McLure said: “The rule about turning away from a challenging vessel was a secret matter and I did not think it fit to mention it even to my Managing Agents. Mason told me he originally steered to starboard in order to pass port to port.” Mason’s statements regarding his motive were inconsistent. While he initially cited the alleged wartime order, he later changed his explanation, claiming that he had turned hard starboard because he was dazzled by an Aldis lamp signal and the Kalawati was too close. He admitted this change of reason during his testimony.

The Court observed that the appellant’s master was aware at the time that the Kalawati was a patrol vessel and therefore not hostile, yet he nevertheless desired to turn astern because the Nizam had a gun mounted at the stern. The master later altered his explanation and advanced a second reason for steering hard to starboard, namely that he wished to avoid the Kalawati. Subsequently he offered a third rationale, again claiming that the hard‑starboard maneuver was intended to keep clear of the Kalawati. In view of these conflicting statements, the Court held that it was impossible to infer, from the evidence, that the master’s decision to turn hard to starboard at 6‑45 p.m. was based on a purported wartime order. Counsel for the appellant drew the Court’s attention to the respondent’s testimony on the matter. The respondent testified that “when a ship is challenged she gives her name and turns round but not in the swept channel or in the harbour. I do not agree that in the swept channel when a ship was challenged to give her name she would have to turn round. I did state before the Marine Enquiry that when a merchant ship is challenged she would turn about necessarily by starboard movement and give her name and the turning about would be action preparatory to running away and that owing to war these regulations were in force. I gay that I was trapped into giving answers by vague questions.” The Court agreed that the respondent’s evidence was not particularly candid, but nonetheless it could not be treated as an admission that would relieve the appellant of the burden of proving the existence of a wartime order or regulation of the sort suggested by the master’s testimony. Examining the master’s evidence in its entirety, the Court concluded that the alleged order to turn hard to starboard appears to have been issued well after 6‑45 p.m., and that the purpose of the order was to return the vessel to the correct side of the channel and, if possible, to keep clear of the Kalawati. The Court noted that the maneuver was taken too late, after the Kalawati had already altered its course to port, and therefore it could not hold that the Nizam had taken starboard action prior to the Kalawati’s turn to port. The Court then identified the next issue: why the Kalawati turned to port at about 6‑48 p.m., and whether that turn constituted negligence or otherwise contributed to the collision. The appellant argued that even if the Kalawati’s port turn occurred first, it was wholly unjustified, that the vessel ought to have turned to starboard to avoid the collision, and consequently the Kalawati should bear the entire blame. An alternative contention, also raised by the appellant, suggested that the Kalawati bore the greater share of responsibility and that liability should be apportioned accordingly. The Court indicated that it would address the alternative argument later. To answer the question of why the Kalawati turned to port at approximately 6‑48 p.m., the Court considered the master’s testimony itself to be explanatory. It further noted that the Kalawati’s log‑book provided additional information relevant to this point.

The evidence indicated that the Kalawati entered the swept channel at approximately 6:25 p.m., south of the fairway buoy, and at that time she was steering a course of north 80° west. By about 6:45 p.m. she had reached the mid‑line of the channel when she sighted the Nizam on her port bow. It was also established that the Nizam had already altered her course to port. Captain Mason summarized the position at 6:45 p.m. by stating, “At 18:45 she (meaning the Kalawati) was about one mile on my starboard bow and was crossing from starboard to port.” Captain Cleeve clarified this remark, explaining that the distance between the two vessels was one mile, that the Kalawati was a mile to the starboard side of the Nizam, and that she was crossing from the Nizam’s starboard side toward her port side. Mason further clarified that both vessels were then on crossing courses and that it would be incorrect to assert that, had each ship maintained the course and speed they were keeping at 6:43 p.m., they would have passed each other port to port. He also affirmed that the two boats were on converging courses at 18:45 hours, meaning that, absent any avoiding maneuver, a collision would have been inevitable. Consequently, Mason emphasized in his testimony that he had taken starboard action at 6:45 p.m. in order to clear the way of the Kalawati, and he argued that if both ships had persisted in the courses they adopted immediately after his alleged starboard turn, they would have passed each other port to port with roughly a half‑mile clearance. The Court, however, found that Mason’s claim of having taken starboard action at 6:45 p.m. was inaccurate. The factual position was therefore that the two vessels were on crossing courses within a narrow channel, and when the Kalawati signalled with an Aldis lamp she observed that the Nizam continued to steer to port. The Aldis lamp was equipped with a small telescope, and a demonstration in Court showed that the Kalawati’s crew could see, through the telescope, the exact course being pursued by the Nizam. At about 6:48 p.m. the distance between the vessels had diminished to less than half a mile, creating an imminent risk of collision unless the Kalawati took evasive action. Accordingly, the Kalawati executed a port‑turn and indicated her new heading by the required signal. The justification for the Kalawati’s port‑turn was the Nizam’s persistence in a port course that not only carried the Nizam across the mid‑line into the opposite side of the channel but also caused her course to converge with that of the Kalawati. Under the circumstances, the Kalawati was the standing‑on vessel, and it was the duty of the Nizam to maneuver out of the way. Instead, the Nizam maintained her port course and only altered to hard starboard after the Kalawati had already taken her justified port action.

In the present case the Kalawati had justifiably taken a port‑ward action in order to avoid an imminent risk of collision. It was submitted before us that the Kalawati ought to have foreseen that, eventually, the Nizam would rectify her error and move to the starboard side of the channel. Therefore, as the vessel required to keep her course, the Kalawati should have maintained her present heading and speed in accordance with Article 21, which would have averted the collision. That submission neglects the dangerous situation into which the Kalawati was placed by the Nizam’s continued navigation on a port course until approximately 6‑48 p.m. It also disregards Articles 27 and 29 which oblige a vessel that is so close to another that a collision cannot be avoided by the giving‑way vessel alone. Such a vessel must also take any further action that best aids in averting the collision in the circumstances. Consequently, the Kalawati’s decision to turn to port at 6‑48 p.m. was justified, because a collision appeared imminent at that moment. The Court considered that the collision might have been avoided had the Nizam not executed the ill‑advised hard‑starboard maneuver after the Kalawati had already turned to port. Captain McLure became aware of the developing danger as soon as he arrived on the bridge at 6‑49 p.m. He immediately ordered the vessel to proceed full speed astern, but by that time the opportunity to prevent the impact had already passed.

The Court held that Mason’s order to put the Nizam hard starboard at about 6‑48 p.m. constituted negligence and was the primary cause of the collision. The findings of the learned trial judge were, in the Court’s view, undermined by the acceptance of Mason’s evidence that he had placed the Nizam hard starboard at 6‑45 p.m. This claim conflicted with the surrounding circumstances, which clearly indicated that Mason’s testimony could not be correct in the analysis. The Court identified four specific circumstances that contradicted Mason’s version of events as presented during the hearing in detail. First, if the Nizam had indeed been ordered hard starboard at 6‑45 p.m., the vessel would have altered its course by ninety degrees by 6‑48 p.m. By 6‑49 or 6‑50 p.m., it would have been turning toward Madras as part of its new heading in the channel. Second, Captain McLure did not feel any helm action at 6‑45 p.m., which further discredits Mason’s assertion in the observed records. Third, the Nizam gave no signal of starboard movement at 6‑45 p.m.; the starboard signal was only observed after the Kalawati had already turned to port shortly after 6‑48 p.m. Fourth, the reason Mason offered for the alleged starboard maneuver at 6‑45 p.m. did not withstand scrutiny when examined closely. Additionally, the Court noted that in the appellate proceedings one of the assessors, Commander Kale, unequivocally stated that the only wartime restrictions in 1940 related to lights and wireless communication. He further observed that signals should be given by ships when they decided to change their course, and the more

In this case the Court agreed that the lower court judges had correctly emphasized the importance of the surrounding circumstances and, after giving those circumstances appropriate weight, had rightly set aside the findings of the trial judge. The Court summarized its conclusions as follows: first, it accepted that the vessel Kalawati had entered the channel at 6:25 p.m. on the wrong side, while the vessel Nizam was positioned about two cables to the right of the channel’s centreline at approximately 6:00 p.m.; by 6:45 p.m. the two vessels were opposite each other near the mid‑line of the channel, with a separation of a little more than a mile. Second, the Court found that the Nizam did not execute a hard starboard maneuver at 6:45 p.m.; rather, it continued to steer toward a port course until about 6:48 p.m., and probably crossed the mid‑line into the wrong side of the channel. Third, when the Kalawati signalled with its Aldis lamp, it observed that the Nizam was steering to port and was on a converging course, and at about 6:48 p.m. the Kalawati took an avoiding action by turning hard to port and gave a signal to that effect. Fourth, the Nizam then took a starboard action in order to return to the correct side of the channel and to clear the way of the Kalawati. Fifth, when the officer McLure arrived on the bridge at about 6:49 p.m., he ordered full speed astern, but this order was given too late and the collision occurred at about 6:51 or 6:52 p.m. On the basis of these findings there was little difficulty in determining liability for the collision; the Court reiterated that responsibility lay with the Nizam. The Court then briefly noted two earlier decisions on which counsel for the appellant had relied: the case of “The Tioga” (1) and the case of “Empire Brent” (2). In the Tioga case the issue was liability for a collision that had occurred in the swept channel on the northeast coast of England between the Pundit, a ship in the port column of a south‑bound convoy of eight ships, and the Tioga, an independent north‑bound ship. The judgment was based on the principle that south‑bound ships were under a strict duty to remain within the western half of the channel and north‑bound ships within the eastern half, thereby ensuring a port‑to‑port passing. A line of flashing buoys ran down the centre of the channel, and a general prohibition on navigation lights made strict adherence to the rule of the road especially critical. The night was overcast and dark with drizzling rain that reduced visibility. Under those conditions it was found that the Pundit, instead of keeping to her right water, had trespassed into the Tioga’s water, thereby breaching the duty to keep to the proper side of the channel.

In the earlier case the Court observed that when the vessel Pundit first sighted the red light of the Tioga at a distance of a quarter of a mile, the immediate obligation of the Pundit was to steer to starboard in order to keep clear of the Tioga and to pass each other on the port side. The Court noted that the Pundit did not comply with this obligation. Consequently, the Court held the Pundit responsible on two separate grounds. The learned Justice Scott, L.J., explained these grounds by referring to two reported decisions, namely the 1945 case reported in volume 78 of Lloyd’s List Law Reports at page 1, and the 1948 case reported in volume 81 of Lloyd’s List Law Reports at page 306. Justice Scott stated that the two vessels, whether they were meeting or crossing, created a duty on the part of the Pundit to pass the Tioga on the port side. If the vessels were crossing, the Pundit also had to keep clear of the Tioga and pass under its stern; if the vessels were meeting, the Pundit was required merely to turn the helm to starboard. Moreover, the Court emphasized that the Pundit owed a special duty in that particular channel to return to her proper waterway. The Pundit had deviated from her proper water, thereby threatening north‑bound traffic, and Justice Scott agreed fully with the earlier judge’s view that this alone made the Pundit seriously at fault. He added that this fault alone entitled the Tioga to expect the Pundit to have her helm on starboard, correcting the error, at the moment she displayed her lights.

The Court further expressed that the precedent set by the Tioga case did not provide substantial assistance to the appellant in the present matter. Upon examining the facts, the Court found that the vessel Nizam had a duty to keep clear of the vessel Kalawati. At approximately six minutes past six in the evening, the Nizam was, in all probability, occupying the wrong side of the channel while the Kalawati was on her correct side, or at least both vessels were near the centre line of the channel. Given these circumstances, the Court concluded that the Nizam’s decision to turn to starboard after she sighted the Kalawati, and then to turn to port, could not be justified either by the principles articulated in the earlier Tioga decision or by the rules governing navigation in a narrow channel.

Turning to the case of the Empire Brent, the Court described a collision that occurred on the River Mersey between the steamship Starmont and the steamship Empire Brent. The findings indicated that the Starmont, for the greater part of her upstream passage, deliberately set a course that placed her on the wrong side of the river for her own navigation. The Empire Brent had just departed from the Princes Landing Stage when she was forced to deal with the hazardous situation created by the Starmont’s approach. In light of these facts, the Court held that the Starmont was entirely at fault for sailing on the eastern side of the river and thereby violating the narrow‑channel rule that applies in the Mersey. The learned Justice Willmer remarked that it was extremely difficult to find words strong enough to condemn a mariner who persistently chooses to navigate on the wrong side of a river, especially when that choice is made deliberately and for the sole purpose of personal convenience.

The Court observed that the remark that the Starmont had steered “merely for the purpose of her own convenience” was an expression of disapproval. The Court then considered the alternative argument that the starboard maneuver of the Empire Brent was the sole cause of the collision, even though the Starmont had been wrong to proceed on the eastern side of the river. The learned Judge explained that this alternative way of putting the case had become academic because, according to his factual findings, the two vessels had been moving on parallel courses (“green to green”) until they were approximately three‑quarters of a mile apart. He added that he did not accept the alternative contention and declared it “wholly wrong.” The Judge further set out his understanding of the law applicable in narrow channels. He stated that for many years it has been established that the crossing rule may occasionally have to be applied in a narrow channel when, for example, a vessel crossing the channel must act in relation to a vessel proceeding up or down the channel. However, he emphasized that when two vessels are approaching one another while each is navigating respectively up and down the channel, Article 25 of the Collision Regulations applies exclusively. In such a situation there is no room to apply the crossing rule together with the narrow‑channel rule because the two sets of requirements are different. He expressed no hesitation in saying that between a vessel coming up and a vessel going down, approaching each other in a narrow channel such as the Mersey, only the narrow‑channel rule governs. He then noted that, given his findings of fact, the alternative argument was merely a digression and remained academic. Counsel for the appellant relied heavily on those observations and argued that the same narrow‑channel rule should control in the present case and not the crossing rule. The Court, however, found that a strict or exclusive application of the narrow‑channel rule would not assist the appellant. The factual record showed that the vessel Nizam was in the correct water at about 6 p.m., but later altered course to port. By approximately 6:45 p.m. the Nizam was near the centre line of the channel, and at 6:48 p.m., when it turned starboard in response to the Kalawati’s port action, it was probably in the wrong water. Consequently, the Nizam could not claim that success was guaranteed if only the narrow‑channel rule applied. The Court therefore concluded that the ratio decidendi from the Empire Brent case did not support the appellant’s position. In light of these findings, the Court considered it unnecessary to address the appellant’s alternative claim concerning apportionment of blame for the collision.

The Court found that the vessel Kalawati could not be placed at fault for having taken a port manoeuvre at the time it did, and it reiterated the reasons previously set out for that conclusion. It also noted an additional obstacle confronting the appellant. While the issue of contributory negligence had indeed been listed among the matters before the trial judge, that judge, after evaluating the evidence, deemed it unnecessary to make a determination on that point. Consequently, the appellate decision was based on the finding that the Kalawati was not negligent and that the entirety of liability for the collision rested with the Nizam. The appellant undeniably challenged the correctness of the findings rendered by the judges of the appellate court; however, neither the appellant’s memorandum of appeal nor the statement of case filed before this Court contained any reference to the alternative claim that is now being advanced. During the hearing of the appeal before this Court, the appellant submitted a petition seeking to introduce a new ground of appeal in order to invoke an alternative claim for apportioning liability for the collision pursuant to the rules for division of loss prescribed in the Maritime Conventions Act, 1911. The Court considered that permitting such a fresh ground at this stage would be inappropriate, because, based on its own findings, there was no basis for dividing blame between the parties. Accordingly, the Court concluded that the appeal could not succeed, ordered its dismissal with costs, reiterated that the earlier order directing payment of the assessors’ fees remained in force, and indicated that no further orders on that matter were required. The appeal was therefore dismissed.