[HOUSE OF LORDS.]

AND

AND

Shipping - Collision - Evidence - Port of London River By-laws, 1914, r. 36.

By r. 36 of the Port of London River By-laws: "Every steam vessel navigating against the tide shall on approaching points or sharp bends in the river ease her speed and if necessary stop and wait before rounding so as to allow any vessel navigating with the tide to round and pass clear of her":-

Held, that the expressions "navigating against the tide" and "navigating with the tide" refer to an actual tidal stream, operating at the time and place sufficiently to differentiate for the purposes of practical navigation between with it and against it and not merely to the state of the tide, i.e., ebb or flow, according to the published anticipations of the local time tables.

In actions arising out of a collision between the Hontestroom and the Sagaporack and a consequential collision between the Sagaporack and the Durham Castle the President found on the facts that the Sagaporackwas solely to blame for both collisions, but his decision was reversed by the Court of Appeal, who found that the Hontestroom was solely to blame.

On appeal to the House of Lords:-

Decision of the Court of Appeal reversed, and decision of the President restored, on the facts by a majority (Viscount Dunedin, Lord Sumner, and Lord Carson Lord Phillimore being of opinion that the Hontestroomand the Sagaporack were both to blame, and Lord Blanesburgh that the Hontestroom was solely to blame).

Observations of Lord Sumner on the practice of the Court of Appeal in reviewing decisions of the Admiralty Court depending on the credibility of witnesses.

APPEALS from a decision of the Court of Appeal reversing a decision of the President.

Shortly after 6.30 P.M. on December 3, 1924, the weather being fine and clear, a collision occurred in the Thames near Blackwall Point between the Hontestroom, which was bound from London for Amsterdam, and the Sagaporack, which was on a voyage from Boston to London. Immediately afterwards a second collision occurred between the Sagaporackand the Durham Castle. This collision arose as a consequence of the first, and it was admitted that the Durham Castle was not to blame.

The Hontestroom brought an action against the Sagaporackto make her liable for damage sustained by the Hontestroomin the first collision. The Durham Castle brought an independent action against the Hontestroom in respect of the second collision, alleging that the Hontestroom by her collision with the Sagaporack had caused the subsequent collision between the Sagaporack and the Durham Castle.

The two actions were tried together.

The facts are fully stated in the judgment of Lord Sumner. At the time of the first collision the tide, which was a neap tide, wanted twenty minutes to high water at London Bridge.

The two main questions in dispute were: (1.) whether at the time and place of the collision there was any perceptible tide, so as to make it incumbent on the Hontestroom, as the vessel navigating against the tide within r. 36 of the Port of London River By-Laws, 1914, to stop and wait before rounding Blackwall Point, in order to allow the Sagaporackto pass clear of her, and (2.) whether the Hontestroom, which had starboarded for a sailing barge, had ported sufficiently and in sufficient time, or whether the Sagaporack had improperly starboarded.

The President, who was assisted by two Elder Brethren of the Trinity House, found that there was no appreciable tide at the time of the collision and held that r. 36 did not apply, and on the facts he found the Sagaporack solely to blame for both collisions.

In the Court of Appeal the nautical assessors, differing

from the Elder Brethren, in answer to questions put by them to the Court, were of opinion that, having regard to (a) r. 36 of the Thames Rules; (b) the presence of the Durham Castleat the north side of the channel; and (c) the sailing barge crossing from north to south, those in charge of the Hontestroomwere guilty of want of care and proper seamanship (1.) in starboarding for the barge, and (2.) in not stopping and allowing the Sagaporack to pass clear; and the Court (Bankes, Scrutton and Atkin L.JJ.), agreeing with this advice, found the Hontestroom solely to blame for the collisions.

1926. April 26, 27, 29, 30. Sir John Simon K.C. and Stephens K.C. (with them Stranger) for the appellants. The President, accepting the appellants' evidence as to the tide, after consulting the Trinity Masters, found that the tide at the time of the collision was negligible and therefore held that r. 36 of the Port of London River By-laws did not apply. In order that the rule should apply there must be an actual tide to navigate against.

[They referred to Marsden's Collisions at Sea, 8th ed., p. 538, notes (d) and (e); The Libra (1); The Margaret (Cayzer, Irvine & Co. v. Carron Co.) (2); The Kennet. (3)]

Butler Aspinall K.C. and Langton K.C. (with them Stenham) for the respondents in the first appeal. There was some tide at the time of the collision. The President's finding on this point is obscure. He found, on the advice of the Elder Brethren, that "there was no tidal action which entered as a substantial factor in their judgment into this case." Bankes L.J. was of opinion that there was a flood tide running at the time and that its force was something less than a knot or two, and that, as the Hontestroom was navigating against the tide, however slowly that tide might have been running, she came within r. 36. Scrutton L.J. was also of opinion that the Hontestroom was navigating against the tide within the meaning of the rule, and Atkin L.J. concurred.

[They referred to Admiralty Commissioners v. S.S. Volute. (4)]

(1) (1881) 6 P. D. 139.

(2) (1884) 9 App. Cas. 873, 885.

(3) [1912] P. 114.

(4) [1922] 1 A. C. 129.

Sir John Simon K.C. replied.

Dunlop K.C. (with him Dumas) for the respondents in the second appeal referred to Owners of S.S. Devonshire v. Owners of Barge Leslie. (1)

Sir John Simon K.C. replied.

The House took time for consideration.

1926. July 20. LORD SUMNER. My Lords, this collision took place in the Thames between the plaintiffs' steamer Hontestroom, outward bound and light, and the defendants' steamer Sagaporack, inward bound for Millwall Dock and laden, on a December evening after dark at a point fixed by the learned President as about 100 feet south of midchannel, and agreed to have been slightly to the east of a line drawn between the lower entrance to the East India Dock Basin and Blackwall Point. The wind's direction was uncertain; its force was very light. The tide was neap and near high water.

The ships collided not far from end on. The Hontestroom'sstem and port bow and the port bow of the Sagaporack came into contact and the latter vessel was cut into and went to starboard. The angle between them, as measured on an examination of the damage, was some 30¡; as marked in the witness box by the master of the Hontestroom it was considerably finer. The Sagaporack immediately afterwards came into violent contact with the starboard quarter of the Durham Castle, doing damage. Lord Merrivale, after a protracted trial, held the Sagaporack solely to blame. The Court of Appeal put all the blame for both collisions on the Hontestroom. Hence these appeals by the Hontestroom, the Sagaporack being respondent in the first and the Durham Castle in the second. If the Hontestroom is exonerated from blame, both appeals succeed.

I think that the crucial matters in the case must be admitted to be the position and manoeuvres of the two vessels during the short time between their first being

(1) [1912] A. C. 634.

visible to one another and the collision, and especially when, somehow, such a change took place at last as brought them together instead of passing port to port. Their prior courses and speeds, whistle signals and helm and engine actions are no doubt matters which go to test the credit of the witnesses, but are otherwise only introductory to the crucial incidents. Accepting, as both parties now do, the position fixed for the collision, it is clear that one pilot or the other (if not both) starboarded at the wrong time, and too much; otherwise the ships would not have come into collision.

The answers to Questions 156 and 157 on the one side and to Questions 1073 to 1086 on the other make this the plain issue. The two Thames pilots, who were respectively in charge, must therefore between them have known quite well, who it was that starboarded into the other. I will not say that it was a case of hard swearing, for I think that the crowded condition of the river at the moment may have led the Sagaporack's pilot to be rather confused, but in proportion as this relieves him from the imputation of false swearing it tends to discredit his navigation. There was, on the other hand, no particular reason why the Hontestroom's pilot should have been hustled. He admitted a certain amount of starboarding and explained it, I think, quite plausibly. If he is believed, this starboarding did not affect the collision. He also said that at the last moment the Sagaporack appeared to be acting under a port helm, as if trying to correct the consequences of her excessive starboarding, and this manoeuvre appears to be an essential part of the Hontestroom's case, if the position in which the two ships came together is to be reconciled with her claim to be free from blame.

The learned President, after seeing both pilots, accepted the story of the Hontestroom. Though he does not expressly say so, it is evident that he regarded the Hontestroom's pilot as an honest and a credible witness and, conversely, that he did not accept the story of the pilot of the Sagaporack, not thinking that his memory could be trusted. He also accepted the evidence of the Hontestroom that the Sagaporack was

beginning to port back again, just before the collision occurred, and he did so in spite of the fact that the Hontestroom'spreliminary act made no mention of this porting. I therefore think, for my own part, that the real issue in this case is, whether the Court of Appeal was justified in laying aside the learned President's view as to the relative credibility of the witnesses and the conclusions of fact which he rested thereon, and in reviewing afresh the whole of the evidence, so as to form their own opinion without regard to his appreciations.

The Court of Appeal was of course fully alive to the consideration that he had had the advantage of seeing the witnesses, and Bankes L.J. says that the members of the Court "hesitated" accordingly before arriving at a different conclusion, though he alone gives his ground for doing so in general terms. He says: "Put briefly, the case is not one in which the learned judge selects one witness, and says 'here is a man who is not only honest but is entirely reliable on all points,' and then selects another, and says 'this man has not tried to tell the truth, or he is so inaccurate a witness that his evidence is of no importance.'" Now it is true that the learned President does not use these formul¾, but he speaks of the two pilots in a way which differs from them only in form, and says: "I have come back to the human factor, and have considered whether I ought to have been minded, as I was minded, to believe the pilot of the Hontestroom, and I have come to the conclusion that, believing him as I did when I heard him, I was warranted in believing him that he was proceeding at the speed which he states." He dwells on this pilot's frankness and honesty in another matter, and nowhere gives as his reason for not accepting some of the details of his evidence, that he thought him in this respect an unsatisfactory witness. Contrast this with his observations on the evidence of the master of the Sagaporack, "if I could accept it at its face value," and "if there is anything which is clear upon the case with regard to the place of the collision," it is that it was not where this witness "insisted" that it was. He says again of the

Sagaporack's witnesses generally: "The real question .... is whether effective continuous port helm action was interposed after his (the Hontestroom pilot's) starboard helm action for the sailing barge or was not so interposed. If effective continuous port helm action was interposed, then the account given me by the Sagaporack is not the correct account, because what is required for their case is starboard helm action of a relatively violent kind, which threw the Hontestroom off her course. .... I attended to the several witnesses, and the conclusion at which I arrived, and of which I am convinced, is that, after the slight starboarding action for the sailing barge, the pilot of the Hontestroom did take steady and continuous port helm action for what, in the circumstances of the case, is a substantial period of time." It seems to me that the difference between what the learned President said and what Bankes L.J. dwells on his not having said is only one of words.

The Lord Justice then goes on to say that there is a point, not touched by the learned President, which in his own opinion is the turning point in the case against the Hontestroom, and is what leads him to his conclusion that all the blame was hers. After setting out her case at length he says: "The one significant fact about the story, to my mind, is that according to that story the collision could not have happened but for the porting of the American vessel within a vessel's length of the Dutch vessel, and that last act of porting, which alone made the collision possible, is no part of the pleaded case. Not only is it no part of the pleaded case, but it seems to me to come out of the evidence of the pilot and master almost incidentally, because, when the pilot is asked at Question 156 what the cause of the collision was, he says the excessive speed of the Sagaporack navigating in the south of the channel and over-starboarding. Now it is quite true that later on, and also before he had mentioned, as it were incidentally, this last act of porting, when he was asked specifically by his own counsel the question what was the cause of the collision, he made no mention at all of this last

act of porting and he gave an account, which, read in conjunction with the rest of his evidence, appears to me to show that the collision was an impossible one."

My Lords, this matter is doubly important. It is on it that the Lord Justice principally founds his own conclusion, and it is on the supposed failure of the learned President to pay attention to it that he largely relies, as justifying him in reopening the whole controversy. It has also much impressed some of your Lordships and has been elaborated considerably beyond even the presentation of it, which I have quoted. I think the view is taken that the true effect of the judgment of the Court of Appeal is to say that evidence of a manoeuvre not disclosed in the preliminary act is evidence, which ought ipso facto to be disbelieved. It seems to me that such a summary mode of dealing with such evidence goes much too far.

In reality, this matter did not escape the notice of the President, for he refers to it as one which he regards as established by the evidence. In my judgment, for whatever it may be worth, he correctly appreciates its significance, which is not intrinsically considerable, in the sequence of the manoeuvres of the two ships, and he was well warranted in passing it over without more discussion, when once he had formed and expressed his conviction that the Hontestroom's story of the cause of the collision was true.

Of course, my Lords, the preliminary act of the Hontestroomought to have mentioned that, at the last moment, the Sagaporack acted apparently under a port helm, but so late and so little that the collision was not averted. No one disputes this, nor can any one fail to appreciate the risk of general discredit that this omission justly brought on her whole case. The evidence was, however, given by two witnesses who were in an excellent position for observation. It was admitted without objection. It was given, in its natural place in the story and without any leading, by the first witness, Smith, the pilot (Question 106). His meaning was elucidated in cross-examination (Questions 452-458), and the subsequent cross-examination of the master

(Questions 690-696) made the point still clearer. The question is what was to be done with it.

It is quite impossible, to my mind, that the President, whether he said much or little about it in his judgment, could have failed to appreciate the weight of the Sagaporack'scriticisms on this evidence. How could he fail to appreciate the weight of the contention, that witnesses, who spoke to a manoeuvre, on which their preliminary act was silent, could not be trustworthy? Consider who the counsel were, who opposed the Hontestroom; consider how the witnesses had been cross-examined, obviously in the hope that they would improve upon their evidence till they had palpably overdone it. Could there be any issue more specially fit than this for the determination of a trial judge? If he thought this story was false, he must at once have said that the Hontestroom's witnesses were exceptionally brazen and that her whole claim to innocence was gone. Her case was that she was proceeding under continuous and effective port helm, when the Sagaporack starboarded into her from the N. and E. How then could the Hontestroomrun into the Sagaporack's port bow? Only in one way. Deliberation must have satisfied the learned President that the Hontestroom's story of a last moment port helm action on the part of the Sagaporack was true, and, if so, who could so well decide such an issue as the judge, who alone had under his eye the men who told him this belated tale?

My Lords, one must not overlook the difference in the procedure of the Court of trial in an Admiralty case and of the Court of Appeal. If you begin by scrutinizing the Hontestroom'sstory on the shorthand note after the case against her has been made not once but thrice and if it then impresses you unfavourably, if thereafter you follow her up to her starboarding for the sailing barge with growing doubt, and if you come finally upon a manoeuvre of the Sagaporack, which is requisite to save the Hontestroom from blame but is not to be found in her preliminary act, I can well understand that you would cry: "What need have we of further testimony? Let there be judgment for the defendant."

But suppose the sequence is otherwise, as at the trial it was. Watching the witnesses in the box and not merely perusing the shorthand notes, listening to what they say without any previous preparation of an adverse kind, free from the prepossessions which an opening by counsel occasions, a judge in the Admiralty Court watches the case as it is built up by the witnesses themselves. He reads their faces, not a shorthand note. He weighs their value as he goes along. Suppose, as the learned President's judgment shows his own process to have been, that he forms the conviction that they are honest and accurate witnesses and, this conviction being confirmed rather than the reverse by the Sagaporack's witnesses, he concludes that the starboarding for the barge formed no part of the collision, and that the Hontestroom'sport helm action was "substantial, continuous and effective at the material time." In such a process why should he debate or doubt this ultimate incident in their story? Why should he make a mountain out of what, apart from the question of credibility, already settled in his mind, is really a molehill? Such late porting was likely enough. If it failed, it could do no harm; it might, peradventure, recall the effect of over-starboarding just enough to bring the ships once more port side to port side. If the Hontestroom's witnesses had been silent about it, I think it would properly have been inferred from the position in which the ships came into contact, when once the Hontestroom's version of her manoeuvres had been accepted.

I am greatly encouraged in the view I take of this late porting incident by the fact that, with all his unrivalled experience in the Admiralty Court, my noble and learned friend Lord Phillimore accepts it, gravely as he reprehends the omission to state it in the preliminary act. [After dealing with some criticisms of the Lords Justices on the learned President's judgment his Lordship continued:] In truth, apart from the point that arises on r. 36, everything is really preliminary or else goes to credit till you get to the time, when the Hontestroom starboards for the sailing barge. She and the Sagaporack were then safe, but were

approaching one another; a blunder followed, and the real question is who blundered? The only object in going over this ground again is to see if the Hontestroom's witnesses can be convicted of falsehood as to her action after they saw the barge, and that operation is out of place, till it has been shown that the President's own handling of this matter ought to be set aside.

What then is the real effect on the hearing in a Court of Appeal of the fact that the trial judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course, there is jurisdiction to retry the case on the shorthand note, including in such retrial the appreciation of the relative values of the witnesses, for the appeal is made a rehearing by rules which have the force of statute: Order LXVIII., r. 1. It is not, however, a mere matter of discretion to remember and take account of this fact; it is a matter of justice and of judicial obligation. None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone. In The Julia (1) Lord Kingsdown says: "They, who require this Board, under such circumstances, to reverse a decision of the Court, below upon a point of this description, undertake a task of great and almost insuperable difficulty. .... We must, in order to reverse, not merely entertain doubts

(1) (1860) 14 Moo. P. C. 210, 235.

whether the decision below is right, but be convinced that it is wrong." Wood L.J., in The Alice (1), says: "The principle established by the decision in The Julia (2) is most singularly applicable. .... We should require evidence that would be overpowering in its effect on our judgment with reference to the incredibility of the statements made." James L.J. thus laid down the practice in The Sir Robert Peel (3): "The Court will not depart from the rule it has laid down that it will not overrule the decision of the Court below on a question of fact in which the judge has had the advantage of seeing the witnesses and observing their demeanour, unless they find some governing fact which in relation to others has created a wrong impression."

Again, in The Glannibanta (4) the Court of Appeal, after referring to The Julia (2) and The Alice (1), say that they would not be disposed to reverse, "except in cases of extreme and overwhelming pressure," but, being of opinion that the trial judge (contrary to what is the fact here) did not proceed at all on manner or demeanour, but proceeded on inferences, which the Court of Appeal could draw as well as he could, they formed their own view of the facts and decided accordingly. I am not aware that this rule has ever been disowned and, if it has too often been neglected, still the current of authority on the subject runs all the other way.

My Lords, this appeal illustrates in two ways the unsatisfactory results which follow from disregard of this settled practice. On the question of seamanship the learned President finds the Sagaporack alone to blame; the Court of Appeal (Bankes L.J. on one ground, Scrutton L.J. on another, Atkin L.J. generally) find the Hontestroom alone to blame. One of your Lordships finds that they were both to blame, and another is of opinion that the facts condemn the Hontestroom much more conclusively than the Court of Appeal did. These questions must always be very difficult,

(1) (1868) L. R. 2 P. C. 245, 248, 252.

(2) 14 Moo. P. C. 210, 235.

(3) (1880) 4 Asp. M. L. C. 321, 322.

(4) (1876) 1 P. D. 283, 287.

when the data can only be ascertained from evidence tainted by the frailty and fallibility of human nature, in the person of a pilot whose navigation is impugned. At least we should not make further difficulties for ourselves by assuming that the trial judge has not understood the case, if his views do not agree with our own, or by overruling his estimate of the witnesses on a paper review of their words, stripped of the material colour, which hesitation or promptitude, shiftiness or candour may well have given them. It is, of course, true that the trial judge may have been imposed upon, but I think it is more useful, that we should be on our guard against imposing on ourselves.

Again, a good deal of fun has been poked at what is called "Admiralty arithmetic," but the scoffer always has to fall back on the use of it himself. What else can he do? As tests of the credibility of a nautical tale these calculations are invaluable, but they cannot be infallible. They sometimes prove logically that there was no collision at all. In the present case, for example, I am quite unable to see what material is furnished by the evidence to enable any one to vary the President's express finding of port helm action by the Hontestroom for a substantial time after she starboarded for the barge, which he obviously believed to have been effective action. The collision is there, and to explain it one may say that the Hontestroom had not time in which to correct her starboard helm. This, however, is pure hypothesis. We may review the whole case by conjectures of our own, but as all calculation rests on some assumed position, course, observation or speed, which itself has to be taken from one witness or another, it is eventually not the arithmetic nor the conjecture, but the trial judge's impression that should prevail. The only alternative is boldly to ask oneself, which story is the more probable, and, speaking for myself, I am a poor hand at answering that kind of question.

My Lords, for these reasons I do not propose to retry this case, nor do I think that the Court of Appeal should have done so. I particularly refrain, and for this reason only, from examining and criticizing the judgment of Scrutton L.J. in

detail. The material questions to my mind are: (1.) Does it appear from the President's judgment that he made full judicial use of the opportunity given him by hearing the viva voce evidence? (2.) Was there evidence before him, affecting the relative credibility of the witnesses, which would make the exercise of his critical faculties in judging the demeanour of the witnesses a useful and necessary operation? (3.) Is there any glaring improbability about the story accepted, sufficient in itself to constitute "a governing fact, which in relation to others has created a wrong impression," or any specific misunderstanding or disregard of a material fact, or any "extreme and overwhelming pressure" that has had the same effect? [His Lordship then dealt with certain facts which were prejudicial to the personal credit of the Hontestroom's witnesses and referred to the conflicting stories told by the Durham Castle and the Hontestroom, and he stated his conclusion on the question of fact as follows:] Accepting, as I think we must, the data which the learned President ascertained for us under circumstances so much more favourable to a correct estimate than ours can be, I do not find in the inconsistencies, which no doubt can be pointed out here and there, sufficient ground on which to hold that in the manoeuvres in question blame rests with the Hontestroom. It is not just to the learned President to suppose that he could have failed to observe the significance of any of these matters on which criticism is now founded. Under pressure of his other duties he was obliged to deliver his judgment orally and without further consideration, and in such circumstances imperfections in form and expression are inevitable; but his reiteration of the care, with which he had weighed the evidence and the arguments, would be insincere, if it did not mean, as I think it means, that among other things he had made full and careful use of his opportunity of judging the evidence by the light of the demeanour of those who gave it.

There remains a specific and totally independent point relating to r. 36 of the Port of London River By-laws. It raises two questions. The first is whether, as a matter of

construction, the expressions in this rule "navigating against the tide" and "navigating with the tide," refer to an actual tidal stream, operating at the time and place sufficiently to differentiate for the purposes of practical navigation between with it and against it, or only to the state of the tide, that is, ebb or flow, which at that place and time should be expected, according to the published anticipations of the local time tables applicable. In the latter case the rule applied to the Hontestroom, for on paper the tide was making and had not reached high water; in the former, the second question - what in fact was the strength of the tide there and then - has to be dealt with. The point is crucial, for it is surely plain that, if the Hontestroom was bound to comply with the rule and had fully done so, there would have been no collision, for she would have been waiting above the point well clear of the Sagaporack at the material time.

On the night in question the time of high water at London Bridge was 7.18 P.M. and, accordingly, when the Hontestroomapproached Blackwall Point, high water time had not yet arrived by twenty minutes. Her case, however, is that on her side of the channel the actual movement of the water upstream was almost imperceptible and certainly negligible. Was she nevertheless bound to comply with r. 36? Counsel assured your Lordships that they had found no authority on this point, nor have I. The cases decided on this rule or on the older rule, art. 23, which contained the same words, are all cases in which the tide had actual force affecting navigation, and it may be inferred that in practice no others were regarded as coming within the rule. I notice that in The Margaret (Cayzer, Irvine & Co. v. Carron Co.) (1) Lord Blackburn and Lord Watson, and again in The Ovingdean Grange(2), Collins M.R., speak of ships "coming up with the tide," "approaching with the tide" and "coming down against the tide," all of which expressions were pleonastic, if the true meaning of the words is coming up or down before the time of high water. Although all the Lords Justices considered that the Hontestroom had broken r. 36, I am not sure from

(1) 9 App. Cas. 873, 879, 885.

(2) [1902] P. 208, 212.

their expressions that they all read the rule quite in the same way. Bankes L.J. says "if the vessel is navigating against the tide, however slowly it may be running, that vessel comes within the rule," which seems to make the test "is there any tide that is running there at all?" Scrutton L.J. puts it that vessels navigating against the tide shall, on approaching Blackwall Point, ease speed, and if necessary stop and wait. "That," he adds, "seems to me to make the vessel coming against the tide the 'give way' ship." He does not, however, deal with the possibility of there being no tide there at all to navigate against. The object, or one object, may be to diminish the risk of two ships trying to pass the point at the same time, and to impose on one of them the duty of giving way. Still the rule is so worded as to introduce, as a conditioning factor, a tide with or against the ship, not a mere relation of the one ship to the other, as in the Sea Rule. The give-way ship is one navigating against the tide, and she does not navigate against a tide, which is not there, merely because there may be enough tide on the other side of the river to make another ship a vessel which is navigating with the tide. Nor does the rule say "navigating against the tide so as to involve risk of collision." Its application depends on the existence of a tide against which one can navigate, and further adapts the action (if action there is to be) to the circumstances of the moment by distinguishing between obligatory easing of speed and stopping only if there is also necessity. One must, therefore, construe the rule as it stands. It is meant, no doubt, as a practical guide for seamen, to tell them their duty in circumstances to be observed from the bridge. It virtually states the reason for itself, namely, that the ship with a working tide with her has the right of way as against the ship coming the other way, because then the ship more likely to go large and less easy to control will be left free, and the other, with little way to take off, can be pulled up without delay or inconvenience, and leave her free water, in which to round the point. The give-way ship can then come on and if, on entering the tide stream from the slack

on rounding the point, she takes a slight sheer, it will not matter. This is how I read it. The ship is navigating against the tide, not against the tide table. The pilot, instead of having to keep one eye on the clock and the other on the tide table, can ascertain his duty by a glance from time to time over the ship's side. If there is, so to speak, a blind spot between the time when the tide runs up and the tide runs down, a period of really slack water, then at such time there is no need for any special regulation for navigating round the point, and the ordinary rule for ships meeting one another will suffice. One knows that in certain states of the wind, if they prevail for a considerable time together, the rise of the tide to high mater may be substantially accelerated or retarded. If the rule were interpreted, so as to pay no regard to these occasions when navigation is in fact affected, it would be a rule confusing the conduct of ships rather than elucidating it.

Your Lordships having taken the opinion of your assessors on the question, were advised that even on the north side of the channel there would have been very little tide on the occasion in question, and on the south side, where the Hontestroom was, none at all. The Elder Brethren had already advised the learned President to the like effect. The configuration of this bend of the river appears to be a sufficient explanation of the differences in the conditions near the north and near the south bank. Under these circumstances I think the Hontestroom was not a vessel navigating against the tide and that r. 36 did not apply to her. No case has been made apart from this rule for holding her to blame for not waiting above the point till the Sagaporack had passed, for there was certainly room enough for both vessels to pass clear without difficulty port to port, if the Sagaporack had not misused her starboard helm. In my opinion the appeals should be allowed and the judgments of the learned President should be restored.

My Lords, I am requested to say that my noble and learned friends Viscount Dunedin and Lord Carson agree with the opinion I have just read.

LORD PHILLIMORE. My Lords, I can state briefly my reasons for supporting the judgment of the Court of Appeal, in so far as it decides that the Hontestroom was to blame. When the Hontestroom was approaching Blackwall Point, the river just below the Point was encumbered by shipping. There was the Durham Castle, which had come out of the East India Dock on the north side of the river and was preparing to go down river, having already got some distance from the north shore but still being in the north water and waiting for an opportunity to get across to the south water.

There was the Sagaporack, a large vessel with two tugs, coming up the river, and there was a sailing barge which had come out from Bow Creek and was trying to work her way up river on the starboard tack, using a light breeze from a westerly direction and such upward drain of the flood tide as still existed, not of course making directly across the river, as then she would never have got up at all, but making an angle across and upward.

In these circumstances, the Hontestroom elected not to remain on her own side of the Point till some of these impediments had been cleared away, and thought she had made sufficient compliance with No. 36 of the Thames rules by easing before she got to the Point and proceeding at slow speed thereafter.

Thereupon she got the green light of the sailing barge fine on her port bow, recognized that she could not go ahead of the barge, and having the choice between stopping till the barge had drawn across her bows or of altering her course and passing under the barge's stern, elected the latter.

For this purpose she starboarded her helm and starboarded at a period when if she were to keep her course down the river at an even distance from the south bank she should have been under port helm.

The natural result of this was that she got away from the south shore, not indeed into the north water but to about 100 feet off mid channel, and this notwithstanding that as soon as she had got the barge across her bows, she did her

best to counteract her starboarding by the use of a port helm.

As it happened, for reasons which I will mention later on, that at that moment the Sagaporack had got into the south water, the collision happened at a comparatively slight angle between the two headings.

My Lords, under the Thames Rule No. 36 a vessel proceeding against the tide and approaching a point in the river should ease her speed. That the Hontestroom did. She should also, if necessary, stop and wait before rounding so as to allow any vessel navigating with the tide, which it was said the Sagaporackwas doing, to pass clear. This the Hontestroom did not do, and the collision happened.

It is said that the rule did not apply because the water was nearly slack; and the assessors who advised your Lordships agree with the Trinity Masters in the Admiralty Division so far that upon this side of the river, which is the important side, the tide was almost slack.

Having been long familiar with this rule, I have thought that its object was to prevent the simultaneous passing of a point by vessels, one bound up and the other down, if such simultaneous passing be dangerous, and that the expressions in the rule about navigating against or with the tide, were only inserted because, to prevent this simultaneous passing, one has to give way and the other to come on, and it was obvious which should be the one to give way.

I have thought that the rule was intended to apply almost continuously during the twenty-four hours. There may be a few minutes between tides when it is not possible to say that one is going more with the tide or more against the tide than the other; but the time of uncertainty must take a very short space, and it is true, as was observed by counsel in the course of the argument, that the greater the force of the tide, the more danger there is that a vessel making it will be deflected as her bow opens the point, and therefore the less the force of the tide, the less need for a rule.

In this case, I do not think that I am prevented by the opinion of the assessors from saying that there was still left

sufficient tide (I agree with the noble and learned Lord, Lord Sumner, that there must be some tide) to indicate which of the two vessels, one bound down and the other up, should, if there were necessity, wait for the other, and that the Hontestroom recognized this when she eased her speed, and that she was the one which, if it were necessary, had to stop and wait.

My Lords, a witness in the course of the case tried to throw some ridicule upon the application of the rule by saying that, if he accepted that application, he would never get down the river. There is, of course, no such meaning in the rule. Vessels may constantly pass each other at a point. If the curve is gradual, if the channel is wide, if it is not encumbered by any navigation except the two vessels which are meeting each other, if the vessels are not of great size, perhaps with any one of these conditions, there is no danger of collision. Each vessel can keep in her proper water, and there is no necessity to stop and wait.

But Blackwall Point is, as I know the river, the point where there is the sharpest turn, one approaching to a hairpin turn. The channel is not wide, and there is that which is the greatest danger of all, the crossing traffic coming out of the East India Docks or out of Bow Creek; and it was night.

The pilot of the Hontestroom, if he saw and appreciated the position of the Durham Castle and the approach of the Sagaporack, and if he did not see the light of the sailing barge, remembered that it was very likely that there would be a sailing barge there, took a serious responsibility when he came on.

But I do not invite your Lordships to find the Hontestroomto blame for this reason, because I do not think that it was the cause of the collision, though the facts of this case afford an excellent illustration of the value of the rule.

The cause of the collision, as far as the Hontestroom is concerned, was the starboarding for the barge instead of stopping to let it pass across. It is for this that I think the Hontestroom to blame.

It is said on her behalf that to hold this would be to reject

the conclusions of the President, who saw and believed the pilot of the Hontestroom.

My Lords, I accept the position in the river where the collision happened. I accept all the statements of the pilot as to his action with the engines, as to his action with his helm, as, to the sequence of the lights which he saw; and I make no point against him on his statements as to the whistles which he heard and which he gave. Only I pack the orders more closely. I believe that when he starboarded for the barge, the Sagaporack was near him, and that he had not time to correct the starboard helm; and in this connection I would observe that it is agreed that the Hontestroom had not got down river as far as the barge when the collision happened. It was this starboarding with insufficient allowance for the difficulties of the approach of the Sagaporack for which I would hold the Hontestroom to blame, and in so doing I think that I follow the line of argument of Bankes L.J., and I intend to be in full concurrence with Scrutton L.J., who seems to have had the same picture of the scene before his mind that I have.

It is perhaps unfortunate that Bankes L.J. should have rested so much of his decision upon the apparent untruthfulness of the story of the Hontestroom. I agree entirely with him - and so, I think, do your Lordships - that the collision could not have been brought about on the story of the Hontestroom without a final porting by the Sagaporack; while the angle of the blow can be easily accounted for on the story of the Sagaporack.

But this final porting, though it did not appear in any of the plaintiffs' documents (and here I specially dwell upon the "preliminary act"), was spoken to by the witnesses and was not criticized as a complete change of story, and was accepted as a truthful statement by the President.

As, I have said, I rest my judgment rather upon the admitted action of the Hontestroom, only believing that the critical act of starboarding took place when the vessels were nearer together than the Hontestroom says.

Now as regards the Sagaporack, I have more doubt. It

was strongly urged that her speed was excessive. We have asked our assessors what would be an excessive speed for her, and on the answer which they gave, and the facts as they appear to me, and I think to all of your Lordships, her speed was not excessive. But her people overstated her case. They would have it that the collision occurred in the north water. The President has found - and it is now accepted - that it was 100 feet south of mid-channel. Her pilot said that she never starboarded. This can hardly be correct. She was, it is true, still below the Point; but, apart from anything else, if she were to keep her place in the river, she would have begun to starboard slightly, and to reach a position 100 feet south of mid-channel she must starboard somewhat more.

It was quite a natural and reasonable thing to do, so as to give the Durham Castle a fair berth, just as it was natural for the Hontestroom to starboard to go under the stern of the barge. But there was room for the Sagaporack to pass starboard to starboard with the Durham Castle without coming so much over to the south water. It may even be that she could have scraped through without crossing the mid-channel line; and if so, she would not have hampered the Hontestroom, and the starboarding by the latter, which was being corrected, would have been corrected in time. Though I think the Hontestroom most to blame, I think that the Sagaporack was also to blame, and on the whole I should vary the judgment of the Court of Appeal in this respect.

LORD BLANESBURGH, whose judgment was wholly concerned with the facts, was of opinion that the Hontestroom was alone to blame for both collisions. After an elaborate review of the evidence he reached the same conclusion as the Court of Appeal without invoking the aid of r. 36. With the assistance of that rule the case against the Hontestroom was, in his opinion, so much the stronger, for he was in accord on that subject with his noble and learned friend Lord Phillimore, whose judgment he had had the privilege of reading. In his opinion both appeals should be dismissed.

On each appeal:-

Solicitors for the appellants: Downing, Middleton & Lewis.

Solicitors for the respondents, the Sagaporack: Godfrey Warr & Co.

Solicitors for the respondents, the Durham Castle: Parker, Garrett & Co.