218 EXCHEQUER COURT REPORTS. 1899 ON APPEAL FROM THE NOVA SCOTIA ADMIRALTY Jan. 16. THE INCHMAREE STEAMSHIP COMPANY, LIMITED, (APPELLANTS} THE STEAMSHIP " SPONDENT) Maritime law—Collision—Burden of proof—Findings of Trial Judge— In this case there was a conflict of testimony on two questions of fact materia] to the decision of the case, both of which were found by the Local Judge in Admiralty in favour of the defendants ; the burden of proof being in each case upon the plaintiffs, and there being evidence to support the findings, the court on appeal declined to interfere with the APPEAL from a judgment of the Local Judge of the Nova Scotia Admiralty District (1). November 25th, 1898. R. C. Weldon, for the appellants, cited Collisions (2) ; The Franconia v. McMillan (5) ; The Ceto A. Drysdale, Q.C., y. Ross (8) ; The Picton Assyrian (11) ; The Seton Imbro (14) ; The City of London (1) Reported, ante, p. 178. (2) P. 506. (3) 2 P. D. 12. (4) 11'P. D. at p. 139. (5) 26 Can. S. C. R. 656. (6) 14 App. Cas. 696. (7) L R. 4 P. C. 1. (15) Swab. at pp. 248, 302. [VOL. VL DISTRICT. PLAINTIFFS ; AND ASTRID," (RE- .. DEFENDANT. Appeal. same. Marsden on (3) ; The Main (4) ; Cuba (6) ; The fesmond (7). for the respondent, relied on Bland (9) ; The Sisters (10) ; The (12) ; The Molière (13) ; The (15). (8) 14 Moo. P. C. 210. (9) 4 Can. S. C. R. 648. (10) 3 Asp. M. L. C. N. S. 122. (11) 6 Asp. M. L. C. 525. (12) 9 P. D. 1. (13) f1893] P. D. 217. (14) 14 P. D. 73.
VOL. 'VI.] EXCHEQUER COURT REPORTS. 219 Mr. Weldon, in reply, cited : The Desmond (1) ; Wilson 1899 v. Currie (2) ; The Khedive (3) ; The Ceto (4). T INCEMAREE STEAMSHIP THE JUDGE OF THE EXCHEQUER COURT now (Janu- COMPANY ary 16th, 1899) delivered judgment. THE This is an appeal from a decree pronounced, on the STEAMSHIP ASTRID. 3rd day of November last, by the learned. Judge for the Rens Admiralty District of Nova Scotia dismissing the action for Jud g ment. of the plaintiff company for damages sustained by the steamship Inchmaree, in a collision with the steamship Astrid, and condemning the plaintiff company in . costs. The learned Judge was assisted by Captain W. H. Smith, R.N.R., as nautical assessor. The case presents two principal questions of fact, both of which have been found in favour of the defendants : First, whether at the time when the two ships came into such relation to each other that each could ascertain the position and course of the other, the Inchmaree was in the position of an overtaking ship or not ; and, secondly, whether, when the collision was imminent, the Astrid, as stated by her master, second officer and helmsman, kept her course at full speed, or whether, as stated by the master and third officer, corroborated by the helmsman of the Inchmaree, the Astrid altered her course by porting her helm so that she crossed the bow of the Inchmaree, thereby defeating an attempt which, by porting her helm and reversing her engines, the Inchmaree had made to keep clear of the Astrid. The learned. Judge had to decide the case upon . evidence taken under commission, none of the witnesses having been examined before him. With reference to the second of the two questions mentioned, he rested his finding upon the absence of preponderating evidence in favour of the plaintiff. (1) L. R. 4 P. C. 1. (3) 5 App. Cas. 876. (2)[ 5~ 94]A. C. 116. (4) 14 App. Cas. at p. 679.
220 EXCHEQUER COURT REPORTS. [VOL. VI. 1899 The conflict of testimony was irreconcilable, the THE manoeuvre attributed to the Astrid by the officers of STEAMBHEP the Inchmaree was so extraordinary that it could only COMPANY be accounted for by supposing that some mistake had THE been made in giving the order, or in understand- STEAMSHIP I ASTRID. n the purport of an order given, and the burden of proof of making out that such a manoeuvre was Rexsows Jna:ena adopted was on the plaintiffs. Under the circum- - stances the learned Judge thought he ought to find for the defendants, and it seemed to me that he was right. Then in regard to the question as to whether or not the lnchmaree was an overtaking vessel, the definition of what constitutes an overtaking vessel as given by the learned judge on the authority of Lord Esher in the Franconia case (1) is admitted to be correct ; and the only question is one of fact as to what the courses and bearings of the two ships were at the time when they each could make out the position of the other. Now, in regard to this I am asked by Dr. Wel-don, the learned counsel for the plaintiff company, to assume that from nine o'clock of the morning of the collision to twelve o'clock, the two ships being then in sight of each other, the Inchmaree steered continuously and uniformly a course of south sixty-eight degrees west true, and that the Astrid steered uniformly and without variation a course of west eight degrees north true, making the angle of their converging courses thirty degrees, that the speed of each was such that a collison would take place at twelve noon if there was no alteration in the course or speed of either ship and that the same rate. of speed was uniformly maintained by each vessel, and that on these hypotheses I should test the statements-made by the witnesses of the respective parties and (1) L. R. 2 P. D. 8.
VOL. VI,] EXCHEQUER COURT REPORTS. 221 s ay whether the bearing of the Astrid as given by the 1899 officers of the Inchmaree or that given by the officers of T the Astrid as to the bearing of the Inchmaree from the NOxMAREE ISTEAMBAIP Astrid is more consistent with such hypotheses. Now COMPANY I have been at some pains to do that with the result TEE that I have not been able to harmonize the evidence STEAMS IP of either of the parties with the hypotheses upon which I am asked to act, and that I am afraid to rely with ge ns . Judg o m r ent. any confidence upon the proposed test. To take an instance from the evidence of each of the parties ; the third officer of the Inchmaree says that about nine o'clock:the Astrid was one point before the Inchniaree's port beam. The master of the Inchmaree gives the same bearing for the Astrid at ten o'clock. If that were true, and the angle of their converging courses was thirty degrees, the Astrid would have the greater distance to travel to come into collision with the Inchmaree and her rate of speed would have to be greater, which seems to be contrary to the admitted facts. Taking, on the other hand, the bearing of the Inchmaree from the Astrid at nine o'clock as given by the master and second officer of the Astrid to be between two and three points abaft the starboard beam of the Astrid and taking that to mean, Say, two and a half points, and testing the matter by the hypotheses suggested, the rate of speed of the Astrid being six and a half knots an hour, we would find that the Inchmaree would at nine o'clock have nearly thirty-two miles to make to the point of collision, and that she would then be distant from the Astrid about eighteen miles, and these are conclusions that cannot be easily reconciled with all the evidence. So after all it seems to me that the question must Abe settled by reference to what the witnesses say as to the bearing of the two vessels from each other. The learned judge has, with the concurrence of the nautical assessor, found that the Inchmaree was an
222 EXCHEQUER COURT REPORTS. [VOL. VI. 1899 overtaking vessel, and in consequence bound, under T the rule, to keep out of the Astrid's way. There is IT MAREE STEAMSHIP am p le evidence, if it is believed, to support that view, COMPANY and his finding ought, it seems to me, to be sustained THE on this appeal. STEAMSHIP The appeal will be dismissed, and with costs. ASTRID. ,~,A9O11, Judgment accordingly. for Judgment. Solicitor for appellant : W. A, Henry. Solicitor for respondent : Drysdale g^ Mclnnes.
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