1885-86.

A.S.N. Co.

v.

SMITH.

effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative."

Held, that sections 98 and 120 of the Navigation Act (35 Vic. No. 7) must be read subject to sec. 17 of the Imperial Act 36 & 37 Vic. c. 85, so far as there is any repugnancy. Section 17, and the decisions under it, therefore apply. One of the vessels having infringed Regulation No. 21 by not keeping on the starboard part of the harbour, such vessel is, in the absence of circumstances showing that the departure from such regulation was necessary, responsible for the collision, without proof that such infringement contributed to the collision.

Per Windeyer, J. The penalty imposed by section 120 of the Act 35 Vic. No. 7 for an infringement of the rule of navigating on the starboard side in any harbour, port, or channel is an additional punishment beyond the disability imposed by section 17 of the Imperial Act 36 & 37 Vic. c. 85.

Also held (per Windeyer, J.), that the harbour of Port Jackson is a "narrow channel" within the meaning of Regulation No. 21 Ex parte Jenkins (10 S.C.R. 138) dissented from.

Per Windeyer, J. Circumstances considered under which an in-going vessel, seeing a red light on the starboard bow, would be justified in considering that the other vessel was going out of the harbour, and was not a crossing vessel within Regulation No. 16.

Cross actions having been brought in respect of the same collision, the cases were tried separately before different Judges. The jury in each case found a verdict for the plaintiffs in that case. Each Judge reported that he was satisfied with the verdict of the jury in the case tried before him.

Each party having obtained a rule nisi for a new trial in the case in which he was unsuccessful, on the ground that such verdict was against the evidence: the majority of the Court (Faucett, J., and Windeyer, J.) ordered that the verdict in the case in which Smith and others were successful should stand; but that in the other case in which the A. S. N. Co. obtained a verdict, a new trial should be had. Innes, J., was of opinion that the rule in each case should be discharged.

NEW TRIAL MOTIONS. In the first action the Australasian Steam Navigation Company sued Messrs. Howard Smith and Co. to recover damages for damages to their steamship the Birksgate, in a collision between that vessel and the Barrabool, a vessel owned by the defendants. The action was tried before his Honour the Chief Justice, and the jury returned a verdict for the plaintiffs.

The defendants obtained a rule nisi for a new trial on the grounds-1. That the verdict was against the evidence, and the weight of evidence. 2. That the evidence showed that the plaintiffs were guilty of contributory negligence. 3. That His Honour should have directed the jury that as the violation of

law by the plaintiffs in being on their wrong side of the harbour in the middle of the night contributed to the collision, the verdict should be for the defendants. A motion was now made to make the rule absolute.

In the cross action Messrs. Howard Smith and Co. sued the Australasian Steam Navigation Company for injuries caused to their steamship, the Barrabool, by the same collision with the Birksgate. The action was tried before his Honour Mr. Justice Windeyer, and the jury found for the plaintiffs. The defendants in this action having obtained a rule nisi for a new trial on several grounds, a motion was now made to make that rule absolute, on the ground that the verdict was against the evidence.

His Honour the Chief Justice reported that he was satisfied with the verdict of the jury in the action tried before him. His Honour Mr. Justice Windeyer reported the same as to the action which was tried before him.

The material parts of the evidence are stated in the judgments given below.

On motion made in the action A. S. N. Co. v. Smith to make a rule absolute :

Owen, Q.C., Want and Heydon, for Smith and others (17, 18, 19, 20 Aug., 1885). The Birksgate being on the wrong side of the harbour, and no circumstances shown to necessitate a departure from the rule prescribed by the statute, the A. S. N. Co. cannot recover in the action brought by them. If there has been an infringement of the rule it is not necessary to show that such infringement contributed to the collision: The Rhombba (1); The Yourri v. The Spearman (2); The Fanny M. Carvill (3); The Lovebird (4). The Imperial Acts 17 & 18 Vic. c. 104, and 36 & 37 Vic. c. 85, must be read together; and the effect of them is to make the ship which has transgressed a rule of the road liable for a collision, without proof that such transgression has contributed to the accident. Part 4 of 17 & 18 Vic. c. 104, which deals with such cases, is in force in all

(1) 8 Ap. Cas. 549.
(2) 10 Ap. Cas. 276.

(3) 44 L. J. Ad. 34.
(4) 6 Pr. D. 80.

1885-86.

A.S.N. Co.

v.

SMITH.

1885-86. British colonies. The provisions of our Navigation Act, 35 Vic. A.S.N. Co. No. 7, are different, for by that enactment the master and not the ship is liable; besides, that enactment cannot override the provisions of the Imperial Act of Parliament.

บ.

SMITH.

Aug. 17.

Faucett J.

Darley, Q.C., and O'Connor, for the A. S. N. Co. The direction which his Honour the Chief Justice was asked to give to the jury is the same as the direction of Brett, J., which was considered erroneous by the House of Lords in Radley v. The London and North-Western Railway Company (5). The law is the same with reference to collisions at sea and on land: Tuff v. Warner (6). They referred to Lord Blackburn's judgment in The Khedive (7). Section 17 of the Imperial Act, 36 & 37 Vic. c. 85, has no application to this case, which is governed by section 120 of the Navigation Act, 35 Vic. No. 7. The Imperial Merchant Shipping Acts of 1854 and 1873 treat of navigation in narrow channels; but the harbour of Port Jackson is not a narrow channel. Our Navigation Act, on the other hand, deals with navigation in any harbour, river, &c., and section 120 of that Act is the enactment bearing on this case. The owners of the Barrabool, in order to succeed, must show not only that the Birksgate was navigated on the wrong side of the harbour, but also that such negligence contributed to the collision.

Owen, in reply. Our Legislature in the Navigation Act has put an interpretation on the expression "narrow channel,” and has shown that it was intended to apply to any harbour, river, &c. Section 120 means that if the vessel is navigated on the wrong side of the harbour, the master is to be liable.

Cur. adv. vult.

On 17th August, 1886, the following judgments were read :FAUCETT, J. On the night of the 9th of August, 1884, the Birksgate, a steamer belonging to the plaintiff company, left that company's wharf about a quarter before 12 o'clock, and proceeded down the harbour on her way to Newcastle. When

(5) L.R. 1 Ap. Cas. 754; 46 L.J. Ex.

573.

(6) 5 C.B.N.S. 573; 27 L.J. C.P. 322. (7) 5 Ap. Cas. 876.

opposite Bradley's Head, on her way out of the harbour, she
came into collision with the Barrabool, a steamer belonging to
the defendants, which was coming up the harbour, having left
Newcastle about 6 o'clock that evening.
Both vessels were

seriously injured by the collision.

The plaintiff company brought an action against the defendants to recover damages for the injuries sustained by their vessel, alleging that those injuries were caused by the negligence of the persons in charge of the Barrabool. The action was tried before his Honour the Chief Justice, when a verdict was returned for the plaintiff company.

A rule nisi was afterwards obtained by the defendants, calling on the plaintiff company to show cause why the verdict should not be set aside and a new trial granted on the following grounds:-1. That the verdict was against the evidence and the weight of the evidence. 2. That the evidence showed that the plaintiffs were guilty of contributory negligence. 3. That his Honour should have directed the jury that if the violation of law by the plaintiffs in being upon their wrong side of the harbour in the middle of the night contributed to the collision, the verdict should be for the defendants.

Having heard the arguments, we have now to determine whether the rule nisi shall be made absolute. The two first grounds may be considered the same, as the second merely points to a specific portion of the evidence.

I have very carefully considered this case, and there can be no doubt that there is a large amount of evidence on both sides. In such a case, although the Court might be better pleased if a different verdict had been returned, still it will not disturb the verdict, unless it can clearly see that it is wrong. We have, therefore, to consider whether, looking at the evidence on both sides, we can see that the verdict is so clearly wrong that, according to the principles by which the Court is governed in such cases, we ought to set it aside.

There is a further difficulty in this case. The defendants have brought a cross action against the plaintiffs, and, the evidence on both sides being substantially the same as in the present action, have recovered a verdict. I shall, however, consider

1885-86. A.S.N. Co.

v.

SMITH.

Faucett J.

1885-86. the present case without reference to the verdict in the cross A.S.N. Co. action.

บ.

SMITH.

The general effect of the evidence for the plaintiffs-allowing Faucett J. for the discrepancies that must always be expected in cases of this kind-is, that the Birksgate had turned Bradley's Head, and had straightened up the western channel when she first saw the masthead and green lights of the Barrabool; that she was then from three to five ships' lengths from Bradley's Head, and was going at half-speed-five to six or seven knots; that the Sow and Pigs was then on her starboard bow, and that the Barrabool's green light was still more on her starboard bow than the Sow and Pigs; that when Captain Mackenzie first saw the Barrabool's green light he starboarded, so as to show his own green light; that the Barrabool when first seen was about three-quarters of a mile off and was going at the rate of eight or ten knots an hour; so that, making fair allowance as to mistake for distance, she must have been well over in the eastern channel. At all events, if the evidence of Captain Mackenzie and of the witnesses for the plaintiffs is correct, the Barrabool when first seen could not have been on the northern or western side of the fairway. Further, according to Captain Mackenzie's evidence, the Barrabool's course was towards the S.E. shore, across the harbour. The interval of time between the time when the green light of the Barrabool was first seen and the collision is variously stated at from ten minutes to two minutes. But all the witnesses for the plaintiffs agree that the interval between the seeing of the red light of the Barrabool and the collision was very short, so that the Barrabool must have been very close up when she showed her red light. They also agree in saying that the Barrabool ported very suddenly, and that if she had not ported the collision would not have taken place.

Now, there are two difficulties in this account of the transaction. The first is this: Considering the course the Barrabool is said to have been taking-towards the S.E. shore, across the harbour; and considering, also, that the Birksgate had starboarded to show her green light and was continuing in her altered course— both vessels, in fact, going away from one another-it is difficult to understand how the Barrabool could have got so close to the