# Kolturuswami v. Veeravva

- **Citation:** [1959] Supp. 1 S.C.R. 979
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** Syed Jafer Imam, S. K. Das, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kolturuswami-v-veeravva-1689
- **Pages:** 30

## Headnote

Shipping-Collision-Negligence-" Standing on"
vessel-
" Giving way" vessel-Rights and duties-Nautical assessorsAdvice not binding on Court-Merchant Shipping Act, I894 (57 &
58 Viet. c. 60) Regulations of I9IO, Arts. 2I, 23, 25, 27, 29.
On December 13, 1940, in the afternoon, a cargo ship, N,
left Madras harbour bound for Calcutta heading for the open
sea. She was being navigated in a swept channel outside the
980 SUPREME COURT REPORTS [1959] Supp.
'959
harbour and was on her proper, namely the starboard side of the
. .
channel. At that time a patrol ship, K, was on an opposite
Th~ Asi~tic _Steatncourse making for Madras harbour and entered the channel at
'(·
Nav•gatwn
about 6-25 p. m.
At 6-30 p. m. N decided to overtake K by goCo., Ltd.
ing port on an erroneous assumption that K was going in the
v.
same direction as N and was not an ?TI-coming ship.
By about
Sub-Lt. AYabinda 6-45 p.m. when K sighted N on the port bow the two ships were
ChaA.avarti
opposite each other near about the mid-line of the channel, the
distance between the two being then a little more than a mile.
N continued her port course and went over the mid-line into the
wrong side of the channel and at about 6-48 p. m. the distance
between the two ships was less than I a mile. K noticed at that
moment that N was converging on her and accordingly in order
to avoid a collision K turned to hard port and gave a signal to
that effect. N, however, took starboard action to get back to the
right side of the channel and get out of the way of K. At about
6-49 p. m. finding that a collision was imminent the commander
of N ordered full speed astern, but it was too late and a collision
took place at about 6-51 p. m.
The appellant, the owner of N, instituted a suit for damages
against the respondent, who was one of the officers in charge of
and responsible for the navigation of K, on the plea that the
collision was caused by the negligent navigation of K. .The t~ial
judge who had been assisted by nautical advisers, held that K
wrongly altered her course at the moment when she did, and if
any step had to be taken she should have altered not to port
r
but to starboard, and if any other action was necessary, she
should have put her engines full speed astern. On appeal, the
High Court, which also had the assistance of two assessors,
-reversed the findings of the trial court and dismissed the suit.
On appeal to the Supreme Court, the appellant contended that
I): should have anticipated that sooner or later N would correct
her mistake and go to the starboard side of the channel and,
therefore, as the "standing on" vessel, K should have kept her
course and speed as required by Art. 21 of the Regulations of
1910, made under the Merchant Shipping Act( 1894, and that if
she had done so, there would have been no collision.
As in the
•
lower courts, this Court also had the assistance of two assessors.
Held, that K was justified in taking port action at, 6-48 p. m.
when a collision seemed iinminent, in view of Arts. 27 and 29
of the Regulations under which when a vessel finds herself so
close to another vessel that a collision cannot be avoided by the
action of the "giving way" vessel alone, she must also take
such action as will best aid to avert collision:
Held, further, that it was an act of negligence on the part
of N to take hard starboard action, instead of following the
~
provisions of Art. 23, as the "giving way''. vessel, by slackening
the speed of or reversing N between 6-45 p. m. and 6-48 p. m.
"The Tioga", (1945) 78 LI. L. Rep. l and " The Empire
Brent", (rg4JS) 81 LI. L. Rep. 306, distinguished.
(1) S.C.R.
SUPREME COURT REPORTS
981
The function of nautical assessors is to advise the court
•959
upon nautical matters but the decision of the court rests entirely
with the court and even in purely nautical matters the court is The Asiatic :i!cam
not bound to follow the advice of the assessors, but on questions
Navi.(alio11
of nautical science and skill great attention must be paid

## Text

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(1) S.C.R.
SUPREME COURT REPORTS
979
no material on the record by which it can reasonably
be said that the provisions of sub-s. (2) of s. 14 of the
Act applied to the present case.
It was urged that the act of Veeravva in adopting
the second defendant was to bring in a stranger and
this action of hers could be questioned by a reversioner,
as any aVenation made by her, during her life time.
Reference was made to s. 42 of the Specific Relief Act,
Illustration (f). In our opinion, this is of no avail to
the appellant, because Illustration (f) obviously refers
to a Hindu widow's estate and has no reference to a
full owner. The right of a reversioner as one of the
heirs under s. 42, Specific Relief Act, is limited to the
question of preserving the estate of a limited owner
for the benefit of the entire body of reversioners; hut
as against a full owner, the reversioner has no such
right. In our opinion, under the Act Veeravva becoming a full owner of her husband's estate, the suit could
not succeed and the appeal must accordingly fail.
In our opinion, the appellant's suit was not maintainable~ having regard to the provisions of s. 14 of
the Act, even if it be assumed that there was no valid
adoption of the second defendant. The appeal accordingly fails and is dismissed with costs.
Appeal dismissed.
Kolturuswami
v.
Veeravva
Imam].
THE ASIATIC STEAM NAVIGATION CO., LTD.
x959
V •
January u.
SUB-LT. ARABINDA CHAKRA V ARTI
(SYED JAFER IMAM, S. K. DAS and J. L. KAPUR, JJ.)
Shipping-Collision-Negligence-" Standing on"
vessel-
" Giving way" vessel-Rights and duties-Nautical assessorsAdvice not binding on Court-Merchant Shipping Act, I894 (57 &
58 Viet. c. 60) Regulations of I9IO, Arts. 2I, 23, 25, 27, 29.
On December 13, 1940, in the afternoon, a cargo ship, N,
left Madras harbour bound for Calcutta heading for the open
sea. She was being navigated in a swept channel outside the
980 SUPREME COURT REPORTS [1959] Supp.
'959
harbour and was on her proper, namely the starboard side of the
. .
channel. At that time a patrol ship, K, was on an opposite
Th~ Asi~tic _Steatncourse making for Madras harbour and entered the channel at
'(·
Nav•gatwn
about 6-25 p. m.
At 6-30 p. m. N decided to overtake K by goCo., Ltd.
ing port on an erroneous assumption that K was going in the
v.
same direction as N and was not an ?TI-coming ship.
By about
Sub-Lt. AYabinda 6-45 p.m. when K sighted N on the port bow the two ships were
ChaA.avarti
opposite each other near about the mid-line of the channel, the
distance between the two being then a little more than a mile.
N continued her port course and went over the mid-line into the
wrong side of the channel and at about 6-48 p. m. the distance
between the two ships was less than I a mile. K noticed at that
moment that N was converging on her and accordingly in order
to avoid a collision K turned to hard port and gave a signal to
that effect. N, however, took starboard action to get back to the
right side of the channel and get out of the way of K. At about
6-49 p. m. finding that a collision was imminent the commander
of N ordered full speed astern, but it was too late and a collision
took place at about 6-51 p. m.
The appellant, the owner of N, instituted a suit for damages
against the respondent, who was one of the officers in charge of
and responsible for the navigation of K, on the plea that the
collision was caused by the negligent navigation of K. .The t~ial
judge who had been assisted by nautical advisers, held that K
wrongly altered her course at the moment when she did, and if
any step had to be taken she should have altered not to port
r
but to starboard, and if any other action was necessary, she
should have put her engines full speed astern. On appeal, the
High Court, which also had the assistance of two assessors,
-reversed the findings of the trial court and dismissed the suit.
On appeal to the Supreme Court, the appellant contended that
I): should have anticipated that sooner or later N would correct
her mistake and go to the starboard side of the channel and,
therefore, as the "standing on" vessel, K should have kept her
course and speed as required by Art. 21 of the Regulations of
1910, made under the Merchant Shipping Act( 1894, and that if
she had done so, there would have been no collision.
As in the
•
lower courts, this Court also had the assistance of two assessors.
Held, that K was justified in taking port action at, 6-48 p. m.
when a collision seemed iinminent, in view of Arts. 27 and 29
of the Regulations under which when a vessel finds herself so
close to another vessel that a collision cannot be avoided by the
action of the "giving way" vessel alone, she must also take
such action as will best aid to avert collision:
Held, further, that it was an act of negligence on the part
of N to take hard starboard action, instead of following the
~
provisions of Art. 23, as the "giving way''. vessel, by slackening
the speed of or reversing N between 6-45 p. m. and 6-48 p. m.
"The Tioga", (1945) 78 LI. L. Rep. l and " The Empire
Brent", (rg4JS) 81 LI. L. Rep. 306, distinguished.
(1) S.C.R.
SUPREME COURT REPORTS
981
The function of nautical assessors is to advise the court
•959
upon nautical matters but the decision of the court rests entirely
with the court and even in purely nautical matters the court is The Asiatic :i!cam
not bound to follow the advice of the assessors, but on questions
Navi.(alio11
of nautical science and skill great attention must be paid to the
Co., Lid.
opinion of the assessors since they are the only source of inforv.
mation on these points anc1 some reason must be given for SZ<b-Lt. AmuiH<la
disregarding them.
Cha1mivarti
The assessors in an appeal court are not substituted for
those consulted in the trial court; they are <nlditional to them;
and if one adviser or two advisers are to be p,refcrrcd, it is
because in the judginent of the court the advice given is such as,
in itself, is the more acceptable.
The relevant articles of the Regulations of 19ro, made
under 1 h~ Merchant Shipping Act, 1894, arc set out in the judgment.
Cn.-u, APPELLATE JURISDICTION: Civil Appeal No.
229 \ ,f 1954.
Appeal from the judgment and decree dated
February 28, 1952, of the Bombay High Court in
Appeal No. 34 of 1952, arising out. of the judgment.
and decree dated February 5, 1951, of the said High
Court in Admiralty Suit No. 1 of 1943.
S. O. Isaacs, P. N. Bhagwati, S. N. Mukherjee and
B. N. Ghosh, for the appellants.
E. E. Jhirad and T. M. Sen, for the respondent.
1959. January 12. The Judgment of the Court
was delivered by
S. K. DAS, J.-This appeal on a certificate given
s. [(. Das J.
by the High Court of Judicature at Bombay is from
the decision of a Division Bench of the said High
Court in Appeal No. 34 of 1951, da.ted February 27
and 28, 1952, by which it reversed the decision of a
single Judge of the said High Court in Admiralty
Suit No. 1 of 1943 dated August 8, 1950.
The appellant., Asiatic Steam Navigation Company
Ltd., is a company incorporated in the United Kingdom with its registered office in London and has an
office in Calcutta. The respondent i.s ex-Sub-Lieutenant Arabinda Chakravarti, who at all material times
was a commissioned officer in the then Royal Indian
Navy with its headquarters at Bombay. The action
which the appellant brought arose out of a collision in
982
SUPREME COURT REPORTS [1959] Supp.
'959
a swept channel, a little distance outside the Madras
n, 1 -:--;-: 5
harbour, on December 13, 1940, at about 6-51 p.m.
;.~;~:;io:••m The two ships concerned in the collision were the
ca .. Ltd.
cargo vessel, S. S. Nizam of 5,322 gross tons and
v.
H. M. S. Ka/,awati, a patrol ship of 1,185 tons.
For
Sub-Lt. Arauinda the sake of brevit.y and convenience, these two vessels
Chakrnv•rli
will be referred to in this judgment as the N izam and
s. K. va, J.
Ka/,awati.
At all material times, the appellant owned
the Nizam and the respondent, it was stated, was one
of the officers in charge of and responsible for the
navigation of the Kalawati . One F. C. H. Mason was
the Chief Officer of the Nizam and the Master was
Malcolm John McLure. Henry Lee was the Commander of the Ka1awati and Arabinda Chakravarti, as
stated above, was one of the officers in charge of and
responsible for the navigation of the Kalawati at the
relevant time.
The case set out by the appellant in the plaint was
this.
On December 13, 1940, in the afternoon the
Nizam, which was then under charter to the Ministry
of Shipping, left Madras harbour bound for Calcutta
carrying a cargo. She was then 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,
clear but cloudy, the moon full, the wind moderate,
the sea calm and the set of the tide from north to
south, the Nizam was being navigated in a swept
channel outside the Madras harbour.
The swept
channel was approximately about one mile wide and
seventeen miles long. The Nizam was heading for
the open sea on her proper course to Calcutta and was
being navigated in a proper and seamanlike manner
and was on her proper, namely the starboard side of
the channel. The Kalawati was on an opposite course
making for Madras harbour. The Nizam having the
Kalawati about one point on her starboard bow star.
boarded with the result that the two vessels were
about one mile apart on courses which would result in
their passing from port to port with a distance of
about half a mile between them.
At that time, the
Kalawati made a " light " signal to the Nizam ; the
signal was not legible and the N izam sent a signal
•
I
•
'
(1) S.C.R. SUPREME COURT REPORTS
983
which asked for a repetition of the signal of the Kalax959
wati. The N izam continued hard to starboard, but The Asiatic Steam
the Kalawuti altered course to port with the result
Navigation
that the Kalawati wa.s
converging on the course
co., Ltd.
of the Nizam.
The Nizam continued to go to
v.
.
fltarboard and the Kalawati to port ; thel'eafter, Sub-Lt. Arabi~da
h
II• .
d
.
.
h
N.
Chakravatli
w en a co 1s1on seeme
very immment, t e
izam
was put full speed astern, but the Kalawati was navis. f{. Das J.
gated across the bows of the Nizam and the result
was that the starboard quarter of the Kalawati came
into collision with the bows of the Nizam. The Kalawati then pivoted round the bows of the Nizam and
again came into collision with the latter. After alleging the facts stated above, the appellant pleaded in
the plaint that the collision was ca.used by the negligent navigation of the Kalawati and the following
particulars of that negligence were given: (a) alteration of the Kalawati's course to port so as to t&ke her
a.cross the bows of the Nizam; (b) failure of the Kalawati to stop or to go a.stern and/or to put her helm
ha.rd a-starboard when there was yet time for her to
do so and avoid a. collision; (c) in breach of the Regulations for the Prevention of Collisions at Sea the
Kalawati failed to keep to her proper side, namely,
the starboard side of the channel, when it was her
duty to do so, and further the Kalawati failed to keep
out of the way of the Nizam when it was her duty to
do so and (d) a proper look-out was not kept on board
the Kalawati.
The total claim which the appellant
preferred for the damage sustained was a sum of
Rs. 88,000 ·and odd and particlars of the claim were
set out in sch. B of the plaint.
In his written statement the respondent denied any
liability for the damage sustained by the Nizam. The
case of the respondent as set out in his written statement was, to put it briefly, this. The re&pondent said
that at about 6-45 p.m. on December 13, 1940, he was
the officer on watch and the Kalawati was steering a
course north 800 west keeping to the Kalawati's
proper side of the channel. The N izam was sighted
at about that time, about 20' on the port side and
about 2i miles away, heading for the open sea and
984
SUPREME COURT REPORTS (1959] Supp.
'959
steering eastwards and running a parallel and opTh
A -:--t. st
posite course. Due to certain wartime regulations, the
e
sia ic
eam .
Novigation
lights of both the vessels were blacked out.
Accord.
Co., Ltd.
ing to the courses which the Nizam and the Kalawati
v.
were then pursuing they would have passed each
Sub-Lt. Arabinda other clear port to port and the respondent signalled
ChakravarU
to the N izam with a portable Aldis Lamp and asked
s. K. Das J.
for her identity. The Niiam replied with one long
flash indicating that she was ready to receive signals
from the Kalawati.
As the respondent was about to
continue signalling, he noticed that the Nizam altered
her course to port in such a. manner that she was
converging on and crossing the course of the Kalawati.
The respondent then stopped signalling and a.s the
Nizam continued on the wrong course ta.ken by her
until her bows were fine on the port bows of the
Kalawati, a collision seemed imminent, the two vessels
then being about two cables a.pa.rt. In order to avert
the imminent risk of collision the respondent ordered
the Kalawati to be put ha.rd· aport and simultaneously
indicated to the N izam the a.Iteration of the Kalawati' B
course. The Nizam, however, instead of keeping to the
course already ta.ken by her and passing the Kalawati
on the-;itarboard side, erroneously attempted to correct
the earlier wrong course ta.ken by her and attempted to go back to her proper side of the . channel. The
N izam then altered her course to ha.rd star boa.rd with
the result that the two vessels were in such a position
that it was not possible to avert a. collision either by
slackening the speed of the Kalawati or by going
astern. In substance, the case of the respondent was
that the collision was ca.used by the circumstances
(a) that the N izam failed to keep to her proper side of
the channel, (b) that she continued to port in such a
manner a.s to put the Kalawati in a perilous position
and the Kalawati had to take avoiding action and
finally (c)' the Nizam was negligent in altering her
course to hard astarboard after being made a.ware
repeatedly that the course of the Kalawati had
been altered to port. Therefore, according to the
respondent, the action of the N izam in steering starboard after Kalawati had ta.ken port action, was the
proximate and effective cause of the collision.
(1) S.C.R.
SUPREME COURT REPORTS
985
On the pleadings stated above, several issues were
r959
framed but the principal question for decision by the The Asiat"c Steam
learned trial Judge was if it was the negligent action
Navig:tion
of the Nizam or of the Ka'lawati which caused the
Co., Ltd.
collision. Issues 1, 2 and 3 were the issues which
v.
related to this question. A further question was raised Sub-Lt. Arabi~da
by issues 4 and 6 and that related to contributory
Chakravaro
negligence, and in case it was found that both the s
1
• K. Das
•
vessels were to blame for the collision, the question
raised was in what proportion the negligence of the
Nizam and of the Kalawati contributed to the collision. The learned trial Judge found in favour of the
present appellant on the principal question and expressed his finding in the following words :-
"I' have come to the finding that the first helm
action was taken-and rightly taken-at the crucial
time by the Nizam going hard a.starboard, and the
Kalawati turned to port when there was no question
of the imminence of any collision.
. ........ In these
circumstances, as a standing on vessel the Kalawati
turned -
and wrongly in my opinion -
to port and
but for her turning to port, there was no question of
the two vessels coming .into a perilous position. In
these circumstances, I am of the opinion that the
Nizam was justified in starboarding. The Kalawati
had to keep her course under the rule being a standing
on vessel, and should have maintained her course in
that manner until the last safe moment, but to my
mind she turned to port much before any such occasion
arose. On this point, I may say that had the Kalawati to take any action at all, the normal action would
have been going to starboard, and this would have
completely a.voided the collision. On this point I may
state that the nautical advisers whom I have had
occasion to consult are in agreement with the view I
am adopting.
I may also state that in my opinion the Nizam put
its engines full speed astern a.t the earliest opportunity,
looking to the situation. The Nizam was put full
speed astern at least 2i minutes approximately before
the collision took place, and even if the statement of
124
986
SUPREME COURT REPORTS [1959] Supp.
r959
McLure that she was dead slow before the collision is
n
A -. -. 5
a slight overstatement it must follow that the back of
'N;::;;,;0~'"mthe momentum of the Nizam hadalready been wholly
co, Ltd.
broken and there is evidence that she was doing about
v.
3 to 4 knots instead of her 9 to 10 knots normal speed.
Sub-Lt. Arabinda On the other hand, I am clearly of the opinion that it
Cha.\.-avai-ti
was fundamentally wrong for the Captain of the
Kalawati not to put her engines full speed astern
S. K. Das ].
immediately he saw the l!itua.tion was perilous. In
fact, instead of doing so, he went full speed ahead.
To my mind, that was not only a wrong judgment but
a judgment inspired by desperation, namely, that by
putting them full speed ahead, with a bit of luck, he
would have cleared himself of the DOie of the Nizam.
I have, therefore, come to the conclusion that the
Kalawati wrongly altered her course at the moment
when she did, and if any step had to be taken she
should have altered not to port b11t to starboard, and
if any other action was necessary, she should have put
her engines full speed a.stern."
In view of the aforesaid findings, the learned trial
Judge expressed the view that the question of coutri·
butory negligence did not a.rise, as also the question in
what proportion ea.ch contributed to the collision.
The question of damages was, by agreement, held over
until the findings on the question of negligence and,
after the learned trial Judge had given the necessary
findings on the question of negligence, the damage
sustained by the N izam was assessed at Rs. 76,893-2-8
and a decree waR passed for that a.mount with interest
thereon at four per cent. per annum from June 19,
1941.
The respondent then preferred a.n appeal and the
appeal was heard by Cha.gla., C. J., and Bhagwati, J.
Like ,the trial Judge, the Judges who heard the appeal
also had the assi"tauce of. two assessors. On the
principal question as to whether the collision wa11
caused by the negligent action of the N iuim or of the
Kalawat·i, the learned Judges who heard the appeal
reversed t.he findings of the learned trial Judge. They
said:
"Tlwrl'fol'c, in our opinion, on this evidencf!, we
,•
(1) S.C.R. SUPH.EME COURT HEPOHTS
987
must find as a fact that the N izam did not alter her
z959
course to starboard at 6-45 p.ro., but she did so much r'
, -. -. ,,
I
d
l"k l
6 48
h
h
''e as1at1e ,,.awm.
atcr an very I ·e y at -
p.m. w en s e gave one
Naviaatio"
blast to indicate the change of course. Now, if that i:-;
co .• ~u.1.
the fact we find, we have to consider what bearing
v.
that finding of fact has upon the question of the 'iu 11-Lt. Arabir.<1;1
defendant's negligence. The question is whether the
Chakravarti
defendant was justified in turning his ship to port at
l
S. R. Das].
6-48 p.m. if at t iat moment the N izam was still
steering to port. The question is whetper at 6-48 p.m.
there was a reasonable probability of a collision which
justified the Kalawati in changing her course to port in
order to avoid that collision. We have the plan before
us and we have the evidence before us, put as this
question of fact involves a question of nautica.l
skill we have availed ourselvtJs of the assistance of
the assessors.
Commander
Kale is emphatically
of the opinion that at 6-48 p.m. if the N izam
was pursuing the same course that she was doing
from 6-38 p.m., there was a reasonable probability
of a collision which it was the duty of the defendant to
avoid as best as he could, and according 1.o Commander Kale, the only way he could have. possibly
avoided it was by steering his ship to port.
Capt.
Malcolm does not agree with this view. He takes the
view that the Kalawati should have raLher turned to
stal'board than to port, and his opinion is based on the
consideration that the Kalawati should have assumed
that at sometime or other the Nizam would turn starboard and taking that possibility into consideration
she should have gone to the right side and not to the
wrong side. With respect to Capt. Malcolm, we are
inclined to prefer the opinion given by Commander
Kale as to what should have been done under the
circumstances ... Now, as the Nizam was the" giving
way" vessel, there was the primary obligation upon
her if necessary to stop the ship or to go n.stern, and
on the evidence it is difficult to resist the conclusion
that the order to go full speed astern, could have been
given earlier either by the Captain himself or by
Mason. On this point both the assessors have expressed their opinion that as a matter of naucical skill
988
SUPREME COURT REPORTS
[1959] Supp.
1959
it would have been possible and indeed it should ha.ve
Th
A -:--,. 51
been done, viz., that the ship should have been ordered
e
sia tc
eam
.
Navigation
to go full speed astern earlier than 6-49 p.m.
co .. Ltd.
In our opinion, therefore, there a.re these two facts
v.
which have definitely contributed to the collision
Sub-Lt. habinda taking place at 6-52 p.m. The first is the failure on
Chakravarti
the part of the N izam to give the signal that she was
s. K. Das 1. going starboard, even assuming that we accept the
plaintiffs' case that she starboal'ded a.t 6-45 p.m. If
she had given. the signal then it would have given
proper and full warning to the Kalawati as to what
the Nizam was doing or going to do at that momeut.
The other fact which has also contributed in our
opinion to the collision is the failure on the pa.rt of the
Nizam to go full speed a.stern earlier than 6-49 p.m."
In the result, t.he appeal was allowed a.nd the action
of the appellant was dismissed with costs throughout.
We have already stated that the High Court of
Bombay gave a certificate of fitness under Art. 133 of
the Constitution and the present appeal ha.s been
brought to this Court in pursuance of that certificate.
Two assessors, Capt. J. A. Cleeve and Commodore
A. K. Chatterjee, have assisted us.
At the very out.
set, it is necessary to clarify two points. Firstly, it
appears that the learned Judges who heard the appeal
in the Bombay High Court did not base their findings
on the evidence of the respondent or his witnesses;
nor did the learned trial Judge attach any great
importance to the evidence of the respondent or his
witnesses. The learned Judges said:-
" 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."
Learned counsel for the appellant has placed before us
in full the evidence of the appellant and its witnesses.
He has also placed before us such portions of the
evidence of the respondent and his witnesses as, in his
opinion, support the case of the appellant. In arriving
at our conclusions we have also proceeded on the footing that as the courts below did not consider the
evidence of the respondent's witnesses to be reliable,
r
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(1) S.C.R.
SUPREME COURT REPORTS
!J89
the principal question of negligence must be decided
'959
on the evidence of the appellant's .witnesses. The trial r' A-_-_ 5
Jd
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.
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··
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siatic
team
u ge too one view o t a ev1 ence an
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Navigation
who heard the appeal took another view. There being
co., Ltd.
no concurrent finding~, we allowed learned counsel for
v.
the appellant to place the entire evidence of the appel- Sub-Lt. Arabinda
lant's witnesses before us in support of his contentions.
Chakruva>ti
The other point relates to the assessors. It has not
been disputed before us that the function of nautical
s. K. Das J.
assessors is to advise the court upon nautical manners
and as Scott, L. J., said in The Olan Lamont.('):
" •.....•..... their ad vice is expert evidence, admissible in Admiralty Courts, on all issues of fact about
seamanship."
·
The de~ ision of the case, however, rests entirely with
the court and even in purely nautical matters the
court is not bound to follow · the ad vice of assessors,
but on questions of nautical science and skill great
attention must obviously be paid to the opinion of the
assessors since they are the only source of information
on these points and some reason should be given for
disregarding them. In the Australia(') Lord Dunedin
deprecated putting to assessors a question that is
tantamount to asking them whether they would find
for the plaintiff or the defendant and repudiated the.
idea that the views of the assessors in an appeal court
are entitled to more respect than those of assessors
below. The assessors.in an appeal court are not substituted for those previously · consulted; they are
additional to them; and if one adviser or two advisers
are to be preferred, it is because in the judgment of the
court the advice given is such as, in itself, is the more
acceptable. There can be no question of any appeal
from one set of assessors to another. \Ve have followed
the same principles with regard to the advice of the
assessors given in this case and we shall refer to such
advice in the course of this judgment when it has a
hearing on the questions at issue before us.
The principal point for determination in this case is
which of the two, the Nizam or the Kalaicati, was
(1) (1946) 79 LI. L. Rep. ,521, 524 (Lloyds List Law Reports). -
(2) [1927] A. C. 145.
990
SUPltEME COURT REPORTS [1959) Supp.
1959
responsible for the collision; and if both were respon1.h
. .
.
sible, what is the extent of the responsibility of ea.ch ?
e Asiatic Steam F
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.
t'
f th
.
. .
N avigvtion
or a e ermma 10n o
ese questions 1t 1s necessary
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first to find what courses the aforesaid two boats were
v.
following at the relevant time and what changes of
Sub-Lt. habinda course were made by them. These facts have to be
Chakravarti
determined first and in doing so we must keep in mind
some of the Regulations made under the Merchant
s. K. Das J.
Shipping Act, 1894. It h~s been admitted by counsel
for both parties that these H.egulations apply, and we
are concerned with the Hegulations of 1910, namely,
those made by an Order in-Council dated October 13,
1910. They embody rules which were to be followed
at the relevant time by all vessels upon the high seas,
and in all waters connected therewith, navigable by
sea-going vessels.
Articles 17 to 27 of the 1910 l~egu
lations relate to steering and sailing rules.
Article 17
applies to sailing vessels, and Art. 18 to steam vessels.
Article 18 says in effect that when two steam vessels
a.re meeting end on or nearly end on so as to involve
risk of collision, each should alter her course to star.
board so that each may pass on the port side of the
other. Article 19 is in these terms:
Art. 19. " When two steam vessels a.re crossing,
so as to involve risk of collision, the vessel which has
the other on her own starboard side shall keep out of
the way of the other."
The vessel which has to keep out of the way of the
other is called the " give way " vessel and the other is
ca.lied the " standing on " vessel. In the case before
us there is no dispute that the N izam was the give
way vessel and the Kalawati the standing on vessel.
Article 21 · has some bearing 011 the question at is>uo
before us and is in these terms :
Art. 21.
" Where by any of these ltules one of
two vessels is to keep out of the way, the other shall
keep her course and speed."
Article 23 says :
"Every steam vessel which is directed by these
Rules to keep out of the way of another vessel shall,
un approaching her, if.necessary, slacken her speed or
stop or reverse."
t
I
(1) S.C.R.
SUPREME COURT REPORTS
991
Article 24 sa.ys inter alia that notwithstanding a.nyr959
thing in the Rules, every vel!Sel overtaking another Th
, ~
5
f h
k
1
1 ns1a1tc
t1am
shall keep out of the way o t e overta en vesse .
NaviKatio"
Article 25 is very important for our purpose, as learnco., I.td.
ed counsel for the a.ppella.nt ha.s pla.ced great reliance
v.
on it. This Article must. be quoted in extenso.
Sub-Lt. Arabi"d"
Art. 25. " In narrow channels every steam vessel
Cltaltravarli
shall, when it is sa.fe and practicable, keep to that side
5
1
1
• K. Das
•
of the fairway or mid-channel which lies on the starboard side of such veB&el."
There ha.s been considerable difficulty in defining a
"narrow channel", and in the trial court the present
respondent denied that the awept channel outside the
Madras harbour was a narrow channel within the
meaning ·Of Art. 25 aforesaid. The courts below proceeded, however, on the footing that the channel in
question was a narrow channel within the meaning of
the said Article and we have also proceeded on the
same footing.
Article 27 is t.lso important for our
purpOse. It says:
Art. 27. "In obeying and construing these Rules,
due regard shall be had to all dangers of navigation
and collision, and to any special circumstances which
may render a departure from the a.hove Rules necessary in or<ler to a.void immediate danger."
Art.icles 29 a.nd 30 are two 1·esidua.ry Articles. Article
29 inter alia says that nothing in the Rules shall
exonerate any vessel from the consequences of any
neglect to keep a. proper look out or of the neglect of
any precaution which may be required by the ordinary
pra<:tice of sea.men, or by the special circumstances of
the case, and Art. 30 says that nothing in the Rules
shall interfere with the operation of a special rule,
duly ma.de by a. local authority, relative to the navigation of any harbour, river or inland waters.
We proceed now. to a consideration of the evidence
with regard to those facts on which the determination
of the question of negligencEl depends in this case. We
do not propose to embark on a. very detailed third
review of the evidence given in the case, but shall confine ourselves to those salient points which, in our
view, arc determinative of the principal question at
992
SUPREME COURT REPORTS [1959] Supp.
r959
issue between the parties, namely, that of negligence
for the collision which took place at about 6.51 p. m.
t
The NAsfat;',. Steam on December 13, 1940. We shall for that purpose
oviga ion
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f
co., Ltd;
re1er to t e ev1 ence o Mason, McLure and Abdul
v.
N abi, three witnesses for the appellant.
As to the
Sub-Lt. Arnbinda effect of the evidence of these three witnesses, the
Chakravarti
learned Judges who heard the appeal in the Bombay
High Court came to conclusions different from those
s. f(. Das 1 ·
of the learned trial Judge and one of the points for our
consideration will be if the appellate Court gave good
and convincing reasons for differing from the view of
the evidence which the learned trial Judge took. It
t
may be stated here that the aforesaid three witnesses
were examined by Blagden, J., in April, 1945, and
February, 1946, and that learned Judge made some
notes as to the manner in which the three witnesses
gave their evidence. Our attention has been drawn
to those notes by learned counsel for the appellant.
Blagden, J., however had ceased to be a Judge of the
Court before the suit was tried. The respondent and
his witnesses were examined in 1950 by Coyajee, J.,
who tried the suit and gave judgment in favour of the
•
appellant.
It appears from the evidence that at about 4-45 p.m.
on December 13, 1940, the Nizam took the pilot on
board and proceeded to sea.
At about 5-22 p.m. the
pilot was dropped and she proceeded at full speed
under McLure's orders up the swept channel, the
speed being about 10! knots. McLure handed over to
Mason at about 5-55 p.m. and the Nizam was then
steering a course north 86° east, making some allowance for the leeway to port for the set of the tide from
north to sOLith.
At about 6 p.m. the third officer relieved Mason; Mason returned to the bridge at
6-30 p.m. and took over from the third officer. Mason
said that be had checked the bearings of the Nizam
just before he left the bridge a.t 6 p. m. and she was
then two ca.hies on the proper side of the channel.
Soon after 6-30 p.m. Mason saw a vessel about two
~
points on the starboard bow of the Nizam at a. distance of about three miles.
Mason's evidence was
that he thought then that the Nizam was overtaking
(1) S.C.R. SUPREME COURT REPORTS
993
that other vessel which must have been the Kalawati.
1959
At 6-38 p.m. Mason altered the course of the N izam ne Asiatic Steam
8° to port, because he thought that the Nizam and the
Navigation
Kalawati were on converging courses. At 6-43 p.m.
Co., Ltd.
the look-out on the Nizam rang the bell twice i11dicatv.
•
S<1b-Lt. Ar.1bi11da
mg a. vessel viz. the Kalawati on the starboard side.
Chakrava,ti
Mason then said that at about 6-45 p.m. the Kalawati
was about one mile on the Nizam's starboard bow and
s. K. Das J.
was clearly seen to be crossing to starboal'd port. The
Kalawati then ma.de an .Aldis lamp' signal and Mason
replied I.M.I. with a torch which asked for a. repetition of the signal. Mason then ordered ha.rd a.starboard; he did this because under certain wartime
orders a merchant vessel had to turn away from any
ship that signalled. At 6-47 p.m. the Kalawati was
several points on the port bow of the N izam and near
a.bout 6-48 p.m. the Kalawati altered her course to
port and indicated the alteration by two short blasts.
Mason replied by one short blast indicating that the
Nizam was turning to starboard. At a.bout 6-49 p.m.
McLure came on board and he rang full speed astern.
By about 6-51 p.m., however, the collision took place.
The above gives in brief a. summary of the events
which, according to Ma.son, led to the collision.
McLure's evidence was that he returned to the bridge
at about 6-48 p.m. on hearing two short blasts from
the Kalawati, and on coming to the bridge he saw that
the Kalawati was turning to port. McLure at once
ordered full speed a.stern and ca.used three short blasts
to be given; but the collision occurred within about
two minutes. Abdul Na.bi was the Quarter Master of
the N izam. His evidence was to the effect that Mason
ca.me on the bridge at about 6-30 p.m. and at that
time the N izam was steering a course north 86° east.
At about 6-40 p.m. (Abdul Na.bi said that it was ten
miriutes after Mason came on the bridge) he received
an order to steer 8 ° to port and he did so. Some five
or ten minutes after he received another order to go to
starboard, that is, to the Nizam's former course.
Then came the la.st order to hard a.starboard and this
was at about the time when Abdul Nabi heard two
125
994
SUPREME COURT REPORTS [1959] Supp.
'7959
bla~ts from the Kalawati. It may be here remarked
-. -.
that Abdul Nabi's evidence differs essentially from
Th•NA"~'",.
5''"mthat of Mason as to the time when the Nizam went t
aviga ion
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f
co .• Ltd.
hard a.starboard and also as to t e sequence o events
v.
which led to the alteration of the Nizam's course from
Sub-Lt. Arabinda north 86 ° east to 8 ° port first, then to her former
Chakravarti
course and then again to hard a.starboard. We shall
later return to these discrepancies.
s. K. Das J.
The three circumstances, however, which stand out
from the evidenc~ of Mason are-(a) that the Nizam
was on the proper side of the channel at about
6-45 p.m.; (b) she turned to ha.rd a.starboard at about r
6-45 p.m. in order to present her stern to the Kalawati
in compliance with certain wartime orders; and (c) the
Kalawati turned to port at a.bout 6-48 p.m. after she
had seen the N izam turn to ha.rd a.starboard some
three minutes earlier. If Mason's evidence is correct
with regard to the aforesaid three circumstances and
the Kalawati turned to port after she had seen the
N izam turn to ha.rd astarboard and if at the time the
Kalawati. was on the wrong side of the channel, then
there can be very little doubt as to where the responsit
bility for the collision should lie. Coyajee, J., accepted Mason's evidence with regard to the aforesaid three
circumstances and held that the responsibility for the
collision lay on the Kalawati, because she turned to
port at the time she did after having seen the Nizam
turn to hard a.starboard some three minutes earlier.
The learned Judges who heard the appeal did not
accept as correct Mason's evidence that the Nizam
turned to hard a.starboard at about 6-45 p.m. in order
to present her stern to the Kalawati ; on the contrary,
from the evidence of McLure and Abdul Na.bi read
with the evidence of Mason, they ca.me to the conclusion that it was impossible to accept the appellant's
case that the Nizam turned starboard at 6-45 p.m.
and it was more likely that she turned to starboard at
about 6-48 p.m. after she had heard the signal of the
Kalawati that she ~was turning to port.
In other
~
words, the learned Judges found that the Kalawati
had turned to port first in order to avoid an imminent
risk of collision and it was then that the N izam
\ -
(1) S.C.R. SUPREME COURT REPORTS
995
altered her course to starboard in order to get to the
z9s9
~ proper side of the channel.
The Asia;. Steam
The question before us is which of these two views
N•vigation -
is correct. On a careful consideration of the evidence
co., Ltd.
and the submissions made thereon by learned counsel
v.
.
for the parties we are of the opinion that the view of Sub-Lt. Arab•~•da
l
'
.
Chakravarti
the earned Judges who heard the appeal 1s the correct
view. According to the evidence of Mason, he checked s. K. Da$ J.
the bearings of the Nizam before he left the bridge at
6 p.m. and on checking the bearings from the Madras
Light House and a. conspicuous white house on the
north side of the harbour, he found that the Nizam
was two cables on the proper side of the channel. It
appears that there should have been a dan buoy in
mid-channel to mark the mid-line. Mason said that
he looked for it, but did not find it. There was a fairway buoy at the end of the channel, that is, near the
mouth of the channel from the open sea. It is not
disputed that the Kalawati entered the channel south
of the fairway buoy and was at the time of the entry
into the channel on the wrong side. The question,
however, is what was the position of the two boats at
the relevant time, namely, at about 6-45 p.m. when
the distance between the two boats was about a mile
or so.
Mason's evidence itself shows that at about
6-45 p.m. both the boats were near about the mid-line
of the channel. It is to be remembered that though
the N izam was about two cables on the proper side of
the channel at about 6 p.m., she had altered her
,
course 8° to port, even according to Mason, at about
6-38 p.m.
Abdul Nabi's evidence indicated that the
N~zam had altered her course to pOI't by about 10°.
Even allowing for the set of the tide, if the Nizam
had continued in her port course in order to overtake
the Kalawati (as Mason was then under the impression
that the N izam was overtaking the Kalawati), she
would cross the mid-line and go into the wrong side of
~
the channel. It is worthy of note that in the plaint
there was no mention of the circumstance that the
N izam altered her course to port in order to overtake
the Kalawati, on the wrong impression that both the
bua.ts were go_ing in the same direction.
But be that
996
SUPREME COURT REPORTS [1959] Supp.
z959
as it may, it is quite clear that the Nizam did alter
Tha. Asiatic Steam h.er COdur.se tho port at aboiJult 6b·38 p.
6
m
4
,
8
and if hshe con1
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a out
·
p.m., s e wou
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be near the mid-line of the channel or just across it at
v.
the relevant time. Mason admitted this and said in
Sub-Lt.