- (1.) 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 Court in appeal No. 34 of 1951, dated 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.
(2.) 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 is 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 a swept channel, a little distance outside the Madras harbour, on December 13, 1940, at about 6-51 p.m. The two ships concerned in the collision were the cargo vessel, S. S. Nizam of 5,322 gross tons and H. M. S. Kalawati, a patrol strip of 1,185 tons. For the sake of brevity and convenience, these two vessels will be referred to in this judgment as the Nizam and Kalawati. 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 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.
(3.) 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 Calculta 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 starboarded 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 Nizam sent a signal which asked for a repetition of the signal of the Kalawati. The Nizam continued hard to starboard, but the Kalawati altered course to port with the result that the Kalawati was converging on the course of the Nizam. The Nizam continued to go to starboard and the Kalawati to port; thereafter, when a collision 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 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 caused 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 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 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 lookout 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 particulars of the claim were set out in Sch B of the plaint.;