P L D 1961 (W (PLP)

5. The first issue was dropped by Mr. Noor Muhammad, the learned Advocate for the defendants, in view of the provision contained in section 31 (2) of the Pakistan Port Trust Act and the notification whereby this provision was extended to the Port of Karachi. No finding is therefore necessary on this issue.

6. Issues Nos. 2, 3 & 4 are interconnected and I shall deal with them together : As to the manner in which the collision took place there is on record the evidence of P. W. 1 Ali, an employee of the Pakistan Navy who was on the floating dock at the time of the accident. There is then the pilot's report, a copy of which had been produced by the defendants themselves with their written statement, and though Mr. Sadiq had summoned the pilot he was not examined because Mr. Noor Muhammad admitted the report. On the side of the defendants Captain Mihalowitz, D. W. 1 gave evidence. He was the General Manager of the defendants and had reached the wharf about the time when the collision took place. It may be noted that it is an admitted position that the three launches in question were tied to the floating dock which were berthed at berth No. 9 and that the collision took place when the defendant's ship s.s. "Mustali" moved and was getting out of the berth. What is contended on behalf of the defendants is that the launches did not have any lights on them and had floated in the water within the area of berth No. 10 and that there was no negligence on the part of the officers of the ship inasmuch as they could not see the launches at the time of the commencement of the unberthing of their ship. P. W. 1 Ali has stated that at the time of the collision he was at the floating dock and before the ship started moving the distance between it and the navy launches was about ‑10 to 12 feet, and the ship moved and dashed into the first launch named Cutter, as a result of which the said launch and another one named H. L. P. were thrown aside and then this ship dashed into the third launch named Setter and cut it into half. He stated that the light of the floating dock was on and the two sets of light were hanging from the dock over the launches which were tied to it. He admitted that the two launches viz., the Cutter and H. L. P. had floated a little into the area of the berth No. 10 which was adjacent to berth No. 9, but they had gone into that area only about 2 or 3 feet. He also stated that when the ship. was being tugged out he found that it was coming towards the launches and at that moment he heard the sound of telegraphic message from the Captain of the ship which was intended for the engine room but notwithstanding this the ship still moved ahead and collided with the launches, This version finds support from the pilot's report. Exh.

28. This may be reproduced :‑‑. "I have to report that whilst unberthing this vessel at approx. 0545 this morning, the vessel moved ahead and caused damage to three Naval Launches lying at the North end of the R. P. N. Floating Docks. There were two R. P. N. Landing craft, and three launches lying abreast, and at right angles to the wharf, and apparently over‑lapping our berth by about 10 feet. This vessel was head out and the two tugs `Sydney' and `Merla Duggan' were made fast with their wires on the Star board side. Engines were rung `Stand by' and answered at 0548. We then proceeded to pull off the berth. Considering it was practically slack water the tugs moved the vessel excessively ahead. To counteract this I held the for'd spring and ordered slow astern at 0552. I then ordered half astern, full astern, and a double ring full astern in quick succes sion, and ordered the Chief Officer to hold the back spring. The Chief Officer reported we were close to boats ahead and as it was now apparent the engine was not moving I ordered the tugs to stop pulling. The accident was, in my opinion, due to the following: (1) R. P. N. Launches were negligently moored abreast in our berth and had no lights. (2) Tugs moved the vessel excessively ahead in the first instance, considering the state of the tide. (3) The order to hold the spring was of no avail, and apparently the spring had to be ceased off to prevent it from breaking, thus allowing the vessel to move ahead. (4) Although I ordered the engines astern before any notice able headway was observed and ordered half astern, full astern and a double ring astern in rapid succession, the engine did not move in sufficient time to keep the vessel in position. The half and full astern movements were not answered. The slow astern and double ring astern only were answered and it was not until we had touched the launches that headway was checked. After the accident I reberthed the vessel and the Master and I went ashore to inspect the position‑we found (1) That the launches had been overlapping the berth and had no lights. (2) Three launches were damaged, two remaining afloat and one partly submerged. Yours faithfully, (Sd.) R. Richardson. Pilot." It is true that the pilot has stated that the launches were negligently moored abreast of berth No. 10 where s.s. `Mustali' was berthed but the cause of the actual collision is clearly inferable from this report due to the vessel moving excessively ahead, an action which was not checked in time by the operators in the engine room in spite of the directions of the pilot which he had given to counteract the move. The report also states that the' half and full astern movements were not answered and only the slow astern and double ring astern were answered and even this was not done until the ship had touched the launches. It may be noted that though the pilot, in his report, has stated that the launches did not have lights on them but he has nowhere suggested that the launches were not visible from the ship or that the collision took place because of it. But even if he had said so or if such an inference was possible from his report I would' not have accepted it in view of certain admitted facts and significant admissions in cross‑examination of the dafendants' manager himself, whose evidence I shall now proceed to examine. Captain Mihalowitz in his examination‑in‑chief stated that there was only one light which was at the corner of the floating dock and one light on the gangway going down to it, and, according to him, these lights were not enough for the purpose of guidance. He further stated that he went over to the ship and asked the Captain and the pilot as to why they were not careful enough to avoid the collision and both of them told him that they could not see anything from the bridge. When he was pressed in cross‑examination he attempted to put the blame on the Port Trust authorities, whose duty, according to him, was to clear the ship out of the berth. He had further to admit that the pilot would not move the ship normally unless he got "all clear" from the Assistant Dock Master and that the latter would have to see the situation in the water before giving such a line clear, and that if the lights were not sufficient he would have to see with the aid of a torch. When pressed further he stated that in the situation in which the accident took place having regard to the position of the boats, the Assistant Dock Master should not have given a "line clear" to the pilot. But when he was asked whether he had made any inquiries about a line clear having been given he admitted that he had not done so. It would thus appear that the stand taken by this witness in the examination‑in‑chief that it was not possible to see the boats, was being gradually surrendered. He admitted that the launches were visible to him but he said this was because he had looked down. He was then asked the following questions Q.‑Is it your case that the master of the ship or the Chief Officer were not able to see these boats because they did not look down at the bottom or because it was dark ? To this the witness answered: "The Chief Officer told me that in order to make sure that there was no obstruction he had taken a torch and looked down and then he was able to see these launches. This was when the ship had already started moving. He further told me that having noticed the launches he immediately gave instructions to the pilot to stop, but in the meantime the accident had taken place." In order to see what are the responsibilities of the officers of the ship it would be useful to quote again this witness. This is what he says, on this point :‑ "At the time of unberthing the pilot and the Master should stand at the bridge which is at the top of the ship. Apart from the pilot and the master, who stand on the bridge, the Chief Officer and the second officer stand at the two ends of the ship on the deck. The launches were towards the forecastle of the ship and it was the Chief Officer who was standing at the end."

8. In view of all the evidence I have no hesitation in holding that it was certainly the duty of the officers on the ship including the pilot to take care and see that while the ship was being cleared out of the berth it should not clash with any other vessel or object. I further hold that there was enough light to make the launches visible, and I cannot accept the belated attempt of the defendants' manager to shift the responsibility on some assistant dock master particularly in the absence of any evidence that he had given any line clear and in the absence of any suggestion to that effect in the pilot's report. The two carts, Exhs. 24 & 25 produced by the defendants' manager while he was in the witness box read with his evidence and the pilot's report, make it quite clear that while the ship was being unberthed it was negligently allowed to move ahead in the direction of the launches which caused the collision. The chart Exh. 24, would show that the two tugs are employed to pull the ship out of the harbour and it would be the duty of those who are in control of the ship to see that it is kept in a position parallel to the dock. The pilot's report shows that the ship was moved excessively ahead and that his instruction to the engine room to keep it in correct position was not given effect to in time. There was thus clear negligence on the part of the officers of the ship and there is no doubt that the accident resulted because of it.

9. I shall now revert to the question of the absence of light on the launches themselves and their straying partly into the water which fell into the area of berth No.

10. Mr. Noor Muhammad strenuously argued and attempted to find support for his argument from certain authorities, that the absence of the light on the launches was sufficient to absolve the officer of the ship from any consequences of the collision. In the first place, it must be noted' that the floating dock itself comes within the description of a1 vessel and admittedly there was light on the dock. These launch see were tied to this floating dock. The absence of any light on these launches themselves even if technically required, a position, which by no means is clear, cannot be pleaded for the purpose of absolving the offices of the ship for a collision that took place when they were moving the ship out of the berth. Nor can the fact that some of these launches had slightly strayed into the area of berth No. 10 amount to a contributory negligence so as to shift the liability from the defendants. There is no dividing line in the water itself separating one berth from the other, and con sidering that these two berths were adjacent and the launches were tied to the floating dock, the floating of some of the launches partly into the area of berth No. 10 would not be something which would be unexpected. And considering that the ship s.s. "Mustali" and the launches with the floating dock were berthed side by side, the presence of these launches could not have escaped the notice of the officers of the ship. It is important to note that this was not a case of collision between two moving vessels. The floating dock and the boats tied to it were stationary and even the ship before it struck the boats was itself stationary and was in the process of being unberthed ; therefore the consideration and the criterion of the respective duties and obligations on the part of persons in the charge of two moving vessels cannot be applied to this case. It is elementary that a much higher standard of care is expected of the driver of a vehicle or the officers in charge of a ship towards such vehicles or objects standing alongside at the time when the former begins to move out than when they are both moving. A 'driver of a motor car who while getting out of a parking place dashes into a stationary car standing alongside cannot except perhaps in exceptional circumstances, plead con tributory negligence of the part of the driver of the damaged car. Case‑law on the question of negligence, except for the broad principle, cannot be of any great assistance because the question whether there was negligence as understood in law in a‑ particular situation must depend upon the facts of each case. Of course in determining the negligence add the consequent liability the Court must take into account all the surrounding circumstances. 1 However, whatever may be difficulty in determining the ultimate ‑cause of the injury in cases of collision where both the vehicles are moving the position is comparatively easy when the collision is between a stationary object and a moving object. It is easier still when both the vehicles are stationary and the injury is caused while one starts moving and the other remains stationary. In a judgment of the Calcutta High Court reported in R. S. N. Co. Ltd. and

1. G. N. & Ry. Co. Ltd. v. Ram Kenai Madhab Chandra Iswar Chandra Pal and others (A I R 1936 Cal, 152) where the collision had taken place between two vessels one at anchor and another in motion, it was held that the burden of proof in an action founded upon collision between a vessel at anchor and one in motion, is upon the owner of the latter to prove that the collision was not occasioned by any negligence on their part. In this case it was found that the vessel at anchor had not complied with the regulation to have lights on the boat, but it was found that this absence of light was not the cause of the collision (a conclusion which I have also reached in the case before me). Upon those facts it was held that the question of contributory negligence did not arise and that as the defendant could by exercise of ordinary care and diligence have avoided the mischief which happened, the plaintiff's negligence would not excuse the defendant. I respectfully agree with these observations. In the case before me the position of the plaintiff is much stronger, and upon consideration of all the circumstances I find that the collision was caused by the negligence of the defendants' servants and the defendants are liable in damages to the plaintiff. Issues Nos. 2, 3 and 4 are answered accordingly.

10. Issue No. 5 relates to the question of quantum of damages. Upon this point the plaintiff relies upon the estimate prepared by their officers for the repair of the damage done to these launches. It may be noted that these launches were never repaired and were allowed to remain in water for a long time until it was found that it would be uneconomic to repair them. How ever, at the time of the accident an estimate was prepared Exh. 16, which is signed by Captain Bailey, in which the approximate cost of the repair of the three launches was estimated at Rs. 40,500 and Rs. 8,000 for salvage. No evidence of expenses of salvage has been given in this case ; therefore we are only concerned with the cost of the repairs to the launches, because that would be the compensation for the injury. Now, this estimate is said to have been prepared by an engineer of the plaintiff who was employed in the Pakistan Navy and his name was George Six. Neither he nor Captain Beiley have been examined in this case. In fact they had left this country when this case came up for trial. The only other evidence was that of P. W. 5 Kaka Umar Shaikh who was actually examined for the purpose of proving the condition of the launches after the accident, and it was only in answer to question by the Court that he stated that these boats were surveyed by George Six in his presence and the cost of repairs was estimated at Rs. 45,000 to Rs. 48,

000. The estimates are not signed by this witness and in the absence of any details given by him I cannot base my finding on this evidence. There is however the evidence of Mr. Johnstone, D. W. 2, who is the Managing Director of G. B. Pott & Co. and who had surveyed these damaged launches on 22‑1‑54 and had made his report on 8‑2‑

54. According to this report the cost of repairs to the launch described as "Setter" exclusive of the cost of refitting the engine, was estimated at Rs. 12,

000. He stated in his evidence that the cost of refitting would amount approximately to Rs. 8,

000. With regard to the H. L. P. his estimate of the cost of repairs to the body of the launch was Rs. 1,450, but he admitted in evidences that the cost of refitting of the engine of this boat would be about Rs. 5,000 if the engine had been under water. There is no doubt that the engine of this launch had been under water and there is sufficient evidence in that regard. The estimated cost of the repairs to the third launch called Cutter, the damage to which was admittedly very trifling (the body had merely been scratched) according to this witness was Rs.

200. This would bring the total to Rs. 26,

650. Mr. Noor Muhammad, the learned counsel for the defendants, conceded that if I came to the conclusion that the defendants were liable in damages they would be entitled to this sum.

11. Mr. Sadiq, the learned counsel for the plaintiff, however relied upon certain correspondence which had passed between the parties and their advocates before the institution of the suit when a settlement was under negotiation. Particular reliance was placed on Exh. 5 read with Exh.

6. These are two letters from Messrs Surridge and Beechano addressed to the Commander‑in -Chief, Royal Pakistan Navy, in which without accepting the liability of the damage sustained by the launches an offer was made for "ex gratia payment" of 75 % of the cost of the repairs of the three launches. In the letter Exh. 5 the defendants' advocate had reproduced the quotation from Messrs Alcock Ashdown & Co. for the repairs of these launches which did not include the repairs to the engine etc. This quotation in respect of the cost of repairs of the three launches amounts to Rs. 27,325 and Mr. Sadiq says that if to this is added the cost of refitting the engine the estimate of his engineers for repairs, which came to Rs. 40,500, would be completely borne out, and' he should therefore be awarded the sum of Rs. 40,

500. I cannot accept this method of reaching a finding on the question of damages. The two letters, upon which reliance was placed, were clearly without prejudice and are there fore within the mischief of section 23 of the Evidence Act. Mr. Sadiq's contention however was that even though the offer of payment of 75 % contained in these letters cannot be admissible yet the quotations from the firm of repairs reproduced in these letters cannot be excluded from evidence, and considering that these estimates were relied upon by the defendants it should be accepted as reliable evidence of the cost of repairs to the launches. There are obvious difficulties in adopting this course. In the first place, I am very doubtful if the estimate contained in the letters which is without prejudice and which is of the type which is generally done for the purpose of avoiding litigation, can be admissible in evidence. But even if that part was admissible in evidence, I cannot act upon them in the absence of any evidence by the authors of these estimates. I am, therefore, of the view that the plaintiff is only entitled to the sum of Rs. .26,650, which amount has been established by the evidence of Mr. Johnston. Mr. Noor Muhammad also contended that no cost of the suit should be allowed to the plaintiff because the defendants had offered to pay without litigation 75% of the cost of repairs. I cannot accept this contention, because the defendants did not take that stand in the suit.

12. For the reasons given above I decree the plaintiff's claim for Rs. 26,650 (Rupees twenty‑six thousand six hundred and fifty) with proportionate costs. K. B. A. Suit decreed.