The Port Victoria (1902) P.25 Probate Division

P. PEOBATE DIVISION.
25
THE POET VICTOEIA.

Dec. 11.
Admiralty—Action in Rein—Damage—Negligence—Putting out to Sea to avoid ~
Collision—Loss of Anchor and Chain—Consumption of Stores.
Where the plaintiffs' vessel slipped, and put out to sea, to avoid collision
with the defendants' vessel, which had been negligently allowed to drag
down upon her and foul her chain :—
Held, by Sir F. H. Jeune P., that the plaintiffs were entitled, in an •
action in rem, to recover the expenses incurred, namely, the value of the
anchor and chain lost, and of the coals and stores consumed.
ACTION IN E E M by plaintiffs, the owners of the Norman, to

recover the value of an anchor and chain lost, and of coals and
stores consumed, in consequence of their vessel having to put
to sea to avoid a collision with the Port Victoria, owned by the
defendants.
The facts, so far as material, were shortly as follows :—
On October 5, 1900, the twin-screw steamship Norman, of
7537 tons gross register, from East London to Durban with
mails, passengers, and a general cargo, was lying at anchor
with seventy-five fathoms of chain out, in a safe and proper
berth, in the outer anchorage ground of Port Natal, having
about three-quarters of a mile ahead of her the steel screw
steamship Port Victoria, of 3378 tons gross register, lying with
her port anchor down, and forty-five fathoms of chain out. (1)
The weather was clear but threatening, and there was a
strong breeze increasing to a moderate gale from the east with
a rough and rising sea and a heavy swell.
In these circumstances, about 3.20 P.M., those in charge of
the Norman observed that the Port Victoria was dragging
across the bows of the Norman, causing risk of collision. The
engines of the Norman were put slow astern, and chain paid
(1) By art. 7 of the Eegulationa of go. The anchor should be weighed
the Port and Harbour of Port Natal, and sighted occasionally, especially
issued in 1900 by the Natal Harbour after bad weather. Should any acci-
Department, " Vessels should lay at dent occur by which a vessel may
single anchor, with not less than drift or lose an anchor, the facts of
seventy fathoms of chain out, having the case must be notified in writing
the second anchor ready for letting to the port captain."
P. 1902. D 5
26 PROBATE DIVISION. [1902]
1901 out to 135 fathoms. About two hours afterwards the Port
THE Victoria fouled the chain of the Norman, and those in charge
e
VICTORIA °^ *k Norman signalled to the Port Victoria, which had a tug
in attendance, to slip her cable and keep clear; but the Port
Victoria continued to drift, and finally came so close that, to
avoid a collision, those in charge of the Norman slipped her
chain and, putting out to sea, remained in the offing until at
daylight she could safely return. The expenditure thereby
incurred in coals and stores consumed and anchor and chain
lost was agreed at 308Z. Is. &d.
The defendants, the owners of the Port Victoria, admitted
the dragging and fouling, but alleged that when the Norman
arrived she anchored too close to leeward of the Port Victoria,
and though steam power was not readily available at first,
there was a full head of steam when the necessity for its use
arrived, and that, on finding their port anchor was foul of the
chain of the Norman, the starboard anchor was let go, but this
also fouled the Norman's chain. Those in charge of the Port
Victoria then hove up and cleared the starboard anchor, and
manoeuvred the vessel under her engines until the starboard
anchor was again let go. The port chain was then cleared,
when it was found that the port anchor had lost both flukes,
and it was not until both chains had been cleared that the
Norman slipped.
Scrutton, K.G., and Machinnon, for the plaintiffs, the owners

of the Norman. The expenses incurred by the plaintiffs were
. the reasonable and natural consequence of the negligent navi-
gation and management of the Port Victoria by the servants of
the defendants.
The Port Victoria had only forty-five fathoms of chain out,
in contravention of the regulations of the port, which require
a scope of not less than seventy fathoms. This in itself is
indicative of negligence, and the allegation that the Norman
gave the Port Victoria a foul berth is disproved by the evidence.
It was owing to the failure of the anchor watch on the defend-
ants' ship to notice that she was dragging that she drifted to
within one-third of a mile of the Norman before any steps were
P. PEOBATE DIVISION. 27
taken, and it was not until she was within two ships' length 1901
that the second anchor of the Port Victoria was let go. The THE
engines of the Port Victoria were not started until she was VICTORIA
quite close.
The master of the Norman waited until the last moment to
see whether those in charge of the Port Victoria would take
proper steps to keep their vessel out of the way of the Norman,
and it was not until, according to the evidence, the Port
Victoria was within sixty feet that the master of the Norman
slipped his chain. Night was coming on, a gale was blowing,
and there was a rough sea. Slipping was the only prudent
course to adopt in order to get this large vessel with passengers
out of harm's way, and keeping out to sea until at daylight the
master could safely come in again was a proper and seamanlike
proceeding.
Aspinall, K.C., and Leiois Noad, for the defendants, the
owners of the Port Victoria. Those in charge of the Norman
unnecessarily got their vessel under way, and unnecessarily
proceeded to, and remained at, sea. The Port Victoria was
under proper control, and there was no collision; but those in
charge of the Norman were unduly apprehensive, and the
evidence suggests that her master became nervous. Under
such circumstances an Admiralty action in rem will not lie to
recover the alleged loss.
Scrutton, K.C., in reply. The value of an anchor and chain
slipped to avoid collision, made imminent by the other ship's
fault, has been recovered in Admiralty in America: see the
cases cited in Marsden's Collisions at Sea, 4th ed. p. 32.
T H E PEESIDENT (SIE F . H. JEUNE). I believe this is the

first case exactly of this kind which has been brought in the
Admiralty Court; but the principle governing the case appears
to be clear and, apparently, in America the principle has been
applied in similar circumstances.
,It seems to me clear that if a vessel by negligence drags
down towards another, and if it is a natural consequence that
the other vessel is obliged to take a step which involves her in
some expenditure, that is damage for which the first vessel is
28 PROBATE DIVISION. [1902]
1901 liable. Applying those principles to this case, the first question
is, was the Port Victoria negligent ? Now, certainly, the
VICTORIA Norman was not negligent in taking up the position she did,
TheTraident b e c a u s e s n e appears to have given the other vessel a berth of
three-quarters of a mile, and the Elder Brethren tell me that
was a proper allowance to make, and that no fault is to be
alleged against the Norman on account of the position she took
up. Then the Port Victoria undoubtedly dragged down towards
her. As regards negligence, I should have thought it was
almost a case of res ipsa loquitur. It seems to me that the
Port Victoria was driving because she had an insufficient scope
of cable. She appears to have been violating the rule of the
local authorities, which is that a vessel riding in that anchorage
should not have less than seventy fathoms of chain—a rule,
no doubt, prescribed on account of the knowledge possessed by
the authorities of the locality and the dangers to which vessels
are there exposed. I do not inquire what exact legal force
that rule has, but the Port Victoria chose to ride with forty-
five fathoms of chain, and afterwards veered out to only sixty-
five. Therefore she was not complying with that rule, and it
is shewn that she was using an insufficient scope of cable.
Then there certainly was a bad look-out, because it is clear that
nobody on board her was aware of her dragging until she had
dragged a very considerable distance indeed—until she was
tolerably close to the Norman. The result of that bad look-out
was important, because the master of the Port Victoria may
be right in saying that when he got so near to the Norman it
might have been unwise to let go the starboard anchor, because
it might bring him towards the Norman and prevent his going
past her as he intended to do. But if those in charge of the
Port Victoria had, in sufficient time, noticed her dragging, they
could have used their starboard anchor and never have got near
the Norman at all. That appears to me to shew clearly that
the Port Victoria was negligent in this matter.
I do not say anything about the steam. No doubt the Port
Victoria ought to have had her steam effectually available, but
it is difficult to ascertain exactly what the fact was with regard
to her steam; and it is not necessary to go into that question,
P. PKOBATE DIVISION. 29
because on the other fact which I have mentioned it is clear 1901
to my mind that the Port Victoria was negligent. THE
Under these circumstances, was the expenditure which the VICTORIA.
Norman has been exposed to so far the consequence of the Port
Victoria's negligence as to make her liable ? All that can be
said against that is said in the phrase used in the evidence that
the master of the Norman was unduly apprehensive. That is
a matter upon which I have consulted the Elder Brethren, and
the view I take upon their advice is that the master of the
Norman was, if anything, unduly patient. There was a vessel
coming down towards him, with the possibility, at any rate,
to say nothing more, of the propeller fouling the chain in the
same way as the anchor fouled the chain, and the wonder to
me is that the master of the Norman did not take action sooner
than he did. He appears to me to have exercised a great deal
of patience and to have abstained from taking any step until
a time when it must have been getting on for dark, and it was
high time, for the safety of the ship, to take some action. I
do not see what action he could have taken except that which
he did take—namely, slipping the cable and himself getting
away out to sea.
In those circumstances it seems to me that the Port Victoria
is liable for what occurred, and the natural consequence
appears to have been a loss of 308?. Is. 6d. There will be
judgment for the plaintiffs for that sum with costs.
Solicitors for plaintiffs, the owners of the Norman: Parker,

Garrett, Holman & Howden.
Solicitors for defendants, the owners of the Port Victoria:
William A. Crump dc Son.
T. L. M.

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P. PEOBATE DIVISION.

THE POET VICTOEIA.

ACTION IN E E M by plaintiffs, the owners of the Norman, to

Scrutton, K.G., and Machinnon, for the plaintiffs, the owners

T H E PEESIDENT (SIE F . H. JEUNE). I believe this is the

Solicitors for plaintiffs, the owners of the Norman: Parker,

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