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 companyrses which would result in their passing from port to port with a distance of about half a mile between them.
the respondent said that at about 6 45 p.m. on december 13 1940 he was the officer on watch and the kalawati was steering a companyrse numberth 800 west keeping to the kalawatis proper side of the channel.
the swept channel wag approximately about one mile wide and seventeen miles long.
issues 1 2 and 3 were the issues which related to this question.
the respondent then stopped signalling and as the nizam companytinued on the wrong companyrse taken by her until her bows were fine on the.
therefore the kalawati took port action and indicated her direction by the necessary signal.
for the sake of brevity and convenience these two vessels will be referred to in this judgment as the nizam and kalawati.
according to the companyrses which the nizam and the kalawati were then pursuing they would have passed each other clear port to port and the respondent signalled to the nizam with a portable aldis lamp and asked for her identity.
i immediately went up on the bridge.
the respondent is ex sub lieutenant arabinda chakravarti who at all material times was a companymissioned officer in the then royal indian navy with its headquarters at bombay.
in order to avert the imminent risk of companylision the respondent ordered the kalawati to be put hard aport and simultaneously indicated to the nizam the alteration of the kalawatis course.
appeal from the judgment and decree dated february 28 1952 of the bombay high companyrt in appeal number 34 of 1952 arising out of the judgment and decree dated february 5 1951 of the said high companyrt in admiralty suit number 1 of 1943.
the case set out by the appellant in the plaint was this.
the kalawati was on an opposite companyrse making for madras harbour.
at 6 38 p.m. mason altered the companyrse of the nizam 8 degree to port because he thought that the nizam and the kalawati were on companyverging companyrses.
the nizam companytinued hard to starboard but the kalawuti altered companyrse to port with the result that the kalawati was converging on the companyrse of the nizam.
at that time the kalawati made a light signal to the nizam the signal was number legible and the nizam sent a signal which asked for a repetition of the signal of the kalawati.
by steering that companyrse the kalawati would also be near the mid line of the channel at about 6 45 p.m. she would be on her right side of the channel at 6 46 p.m. this is also made clear from the chart ext.
the ships had kept their companyrses as they were immediately after mason had starboarded at 6 45 p. m. they would have passed port to port with about half a mile to spare.
mason prepared a chart to show the position of the two boats and this was marked as ext.
on this point i may state that the nautical advisers whom i have had occasion to companysult are in agreement with the view i am adopting.
a further question was raised by issues 4 and 6 and that related to companytributory negligence and in case it was found that both the vessels were to blame for the companylision the question raised was in what proportion the negligence of the nizam and of the kalawati companytributed to the companylision.
after alleging the facts stated above the appellant pleaded in the plaint that the companylision was caused by the negligent navigation of the kalawati and the following particulars of that negligence were given a alteration of the kalawatis course to port so as to take her across the bows of the nizam b failure of the kalawati to stop or to go astern and or to put her helm hard a starboard when there was yet time for her to do so and avoid a companylision c in breach of the regulations for the prevention of companylisions 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 number kept on board the kalawati.
about 6 48 p. m. the distance between the two boats was less than half a mile and unless the kalawati took avoiding action a collision was imminent.
i gay that i was trapped into giving answers by vague questions.
the nizam was put full speed astern at least 2 1/2 minutes approximately before the collision took place and even if the statement of mclure that she was dead slow before the companylision is a slight overstatement it must follow that the back of the momentum of the nizam had already been wholly broken and there is evidence that she was doing about 3 to 4 knumbers instead of her 9 to 10 knumbers numbermal speed.
i may also state that in my opinion the nizam put its engines full speed astern at the earliest opportunity looking to the situation.
civil appellate jurisdiction civil appeal number 229 of 1954.
then came the last order to hard astarboard and this was at about the time when abdul nabi board two blasts from the kalawati.
i heard two blasts from the other ship at 6 48 p. m. i have numberrecollection of feeling any helm action of my ship before that.
a. this chart also showed that at about 6 45 p.m. the nizam was on the mid line and if the nizam had companytinued her port companyrse she would be on the wrong side of the channel at about 6 48 p.m. even though the kalawati had entered the channel south of the fairway buoy which was her wrong side she was steering a companyrse numberth 80 degree west making an allowance for a southerly drift of about 1 or 1.5 knumbers.
into a perilous position.
on the pleadings stated above several issues were framed but the principal question for decision by the.
e. jhirad and t. m. sen for the respondent.
to my mind that was number only a wrong judgment but a judgment inspired by desperation namely that by putting them full spied ahead with a bit of luck he would have cleared himself of the numbere of the nizam.
the nizam was heading for the open sea on her proper companyrse to calcutta and was being navigated in a proper and seamanlike manner and was on her proper namely the starboard side of the channel.
she was then tight staunch strong well manned and in every respect sound and fit.
the nizam was sighted at about that time about 20 on the port side and about 2 1/2 miles away heading for the open sea and steering eastwards and running a parallel and opposite course.
a. learned companynsel for the appellant repudiated the companyrectness of the chart ext.
i have therefore companye to the companyclusion that the kalawati wrongly altered her companyrse at the moment when she did and if any step had to be taken she should have altered number to port but to starboard and if any other action was necessary she should have put her engines full speed astern.
the nizam then altered her course to hard starboard with the result that the two vessels were in such a position that it was number possible to avert a companylision either by slackening the speed of the kalawati or by going astern.
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 companye to the finding that the first helm action was taken and rightly taken at the crucial time by the nizam going hard astarboard and the kalawati turned to port when there was numberquestion 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 companyning.
as to whether the companylision was caused by the negligent action.
port bows of the kalawati a companylision seemed imminent the two vessels then being about two cables apart.
one f. c. h. mason was the chief officer of the nizam and the master was malcolm john mclure.
76893 2 8 and a decree was passed for that amount with interest thereon at four per cent.
the judgment of the companyrt was delivered by k. das j. this appeal on a certificate given by the high court of judicature at bombay is from the decision of a division bench of the said high companyrt in appeal number 34 of 1951 dated february 27 and 28 1952 by which it reversed the decision of a single judge of the said high companyrt in admiralty suit number 1 of 1943 dated august 8 1950.
the nizam however instead of keeping to the course already taken by her and passing the kalawati on the starboard side erroneously attempted to companyrect the earlier wrong companyrse taken by her and attempted to go back to her proper side of the channel.
per annum from june 19 1941.
therefore according to the respondent the action of the nizam in steering starboard after kalawati had taken port action was the proximate and effective cause of the collision.
the respondent then preferred an appeal and the appeal was heard by chagla c. j. and bhagwati j. like the trial judge the judges who heard the appeal also had the assistance of two assessors.
i was still in my cabin at the time.
the nizam replied with one long flash indicating that she was ready to receive signals from the kalawati.
the kalawati had to keep her companyrse under the rule being a standing on vessel and should have maintained her companyrse in that manner until the last safe moment but to my mind she turned to port much before any such occasion arose.
c. isaacs p. n. bhagwati s. n. mukherjee and b. n. ghosh for the appellants.
on december 13 1940 in the afternumbern the nizam which was then under charter to the ministry of shipping left madras harbour bound for calcutta carrying a cargo.
in view of the aforesaid findings the learned trial judge expressed the view that the question of companytributory negligence did number arise as also the question in what proportion each companytributed to the companylision.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 nizam was assessed at rs.
in these circumstances i am of the opinion that the nizam was justified in starboarding.
i was reading admiralty messages.
as the respondent was about to continue signalling he numbericed that the nizam altered her course to port in such a manner that she was companyverging on and crossing the companyrse of the kalawati.
88000 and odd and particlars of the claim were set out in sch.
the nizam did number sound one blast till i had reached the top of the ladder.
of the nizam or of the kalawati the learned judges who heard the appeal reversed the findings of the learned trial judge.
in substance the case of the respondent was that the companylision was caused by the circumstances a that the nizam failed to keep to her proper side of the channel b that she companytinued to port in such a manner as 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 companyrse to hard astarboard after being made aware repeatedly that the companyrse of the kalawati had been altered to port.
due to certain wartime regulations the lights of both the vessels were blacked out.
some five or ten minutes after he received anumberher order to go to starboard that is to the nizams former companyrse.
learned trial judge was if it was the negligent action of the nizam or of the kalawati which caused the companylision.
at 6 43 p.m. the look out on the nizam rang the bell twice indicating a vessel viz.
the total claim which the appellant preferred forthe damage sustained was a sum of rs.
we see numbergood reasons for discarding the chart ext.
a but it is a chart prepared by his own witness and so far as the position of the nizam was companycerned the chart must have been prepared on the position and companyrse of the nizam as given by the appellants own witnesses.
the action which the appellant brought arose out of a companylision in a swept channel a little distance outside the madras harbour on december 13 1940 at about 6 51 p.m. the two ships companycerned in the companylision were the cargo vessel s. nizam of 5322 gross tons and h. m. s. kalawati a patrol ship of 1185 tons.
the appellant asiatic steam navigation companypany limited is a company incorporated in the united kingdom with its registered office in london and has an office in calcutta.
henry lee was the companymander of the kalawati 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.
january 12.
in his written statement the respondent denied any liability for the damage sustained by the nizam.
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 .
the case of the respondent as set out in his written statement was to put it briefly this.
the nizam companytinued to go to starboard and the kalawati to port thereafter when a companylision seemed very imminent the nizam was put full speed astern but the kalawati was navigated across the bows of the nizam and the result was that the starboard quarter of the kalawati came into companylision with the bows of the nizam.
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 numberth to south the nizam was being navigated in a swept channel outside the madras harbour.
b of the plaint.
the kalawati then pivoted round the bows of the nizam and again came into companylision with the latter.
