P L D 1969 Dacca 696 (PLP)

This is the substance of the oral evidence. I shall discuss the documentary evidence when the occasion arises.

1. Issue No. I.‑Whether this Court has jurisdiction to entertain the suit? This question has already been decided by me in another suit namely Admiralty Suit No. 1 of 1966. For the reasons stated in the said decision I hold that this Court has jurisdiction to entertain this suit. Issue No. 2.‑Is the court‑fee sufficient ?

2. This issue was not pressed and is decided in favour of the Plaintiff.

4. Issue No. 4.‑ 'This issue was also not pressed and is decided in favour of plaintiff.

5. Issue No. 5.‑I shall take up the issue No. 5 first and then discuss issue No.

3. Before 1 take up the arguments of the counsels of both sides I should like to establish some basic facts. In deciding the cause of the accident one must have a clear idea of the topography of the locality. Exh. 11,' the map of the locality has been accepted by both the sides. Exh. 11 shows a picture of the deltaic area where the river Hatiya meets the Bay of Bengal. The area is dotted with islands and Chars. In between these Chars are shallow waters and deep channels. Although verging on the Bay of Bengal these waters are inland waters. Route for the steamers has been marked by buoys. The buoys are of two kinds: black and white. It is admitted by both the parties that steamer travelling from Chandpur to Chittagong has to keep the black buoys on the left and the red buoys on the right. Similarly steamers travelling from Chittagong to Chandpur has to keep the red buoys on the left and black buoys on the right. It must be noted that the red buoys and black buoys are not diametrically opposite to each other. In fact the buoys are not diametrically opposite to each other. In fact the buoys may be said to be almost in a line and in the locality the relevant buoys are North Hatiya buoy No. 1 which is a black buoy. The next buoy is Bata Char buoy No. 2 which is a red buoy and the next buoy is Bata Char No. 1 which is a black buoy. The evidence of the plaintiff's own witness P. W. 3 Maniruzzaman the master of the plaintiff's vessel is that they have to go between the buoys. While coming from Chittagong the red buoys would remain in the left side and the black buoys on the right side and they have to keep about 300 feet off from the buoys. Then he says that he has to keep to the right side of the channel as required by rule

19. This is a clear contradiction. If he has to move about 300 feet of the red buoys he cannot remain on the right side of the channel as the channel is admittedly more than half a mile broad. Therefore the topography and the clear marking of the buoys would indicate that whether the channel ‑be‑ regarded as a narrow channel or broad channel the ships must keep to the left. Rule 19 which lays down that vessels proceeding in a narrow channel should keep to the right of the said channel will not be applicable so far as this route is concerned. P. W. 8 Syed Abdul Basit, the conservency and Pilot Superintendent of EPIWTA has said that the channel has a special feature namely that it is a buoyed channel and the international buoys system is made applicable to this channel that is the vessels going from Chandpur would keep the black buoys on its left and vessels coming from Chittagong would keep the red buoys to its left. Therefore it is clear that rule 19 is not applicable to this channel but the vessels have to keep to the left so far as this channel is concerned. Exh. 11 also shows a flash point. It is on the shore and north east of north Hatiya black buoy No.

1. It is the evidence of D. W. 9 Safiullah and of P. W. I 1 Mr. A. H. Khan in cross‑examination that the flash point is a guide for the vessels coming from Chandpur, that is, after passing north Hatiya black buoy No. 1, they have to draw within 400 feet of the flash point and then set their course for the next buoy namely Bata Char No.

2. Thus it is clear that the rule of keeping to the left of the channel is emphasised. The steamers coming from Chandpur are not allowed to set their course for the red buoys Bata Char No. 2 immediately after passing the black buoy north Hatiya No. 1 as doing so may interfere with the course to be set by vessels coming from Chittagong after passing red buoy Bata Char No.

2. Therefore they are to proceed up to 400 from the flash point and then set their course for the said red buoy and this is exactly what D. W. 9 did when he said :‑ "there was a flash light on Charbata land near Charbata. I was taking 90 course from that light . . . . . . . . . . . . . . . . . . . The place where I reached nearest to the Charbata was 400 feet. Then I took 90 course." The learned counsel for the plaintiffs in his anxiety to establish the plaintiff's case has gone so far as to reject the evidence of his own witness P. W. 3 Maniruzzaman that he passed the red buoy only 200 feet to its north. Mr. Kamal put the vessel about 2,500 feet north of the red buoy when it altered its course for the black buoy Hatiar Char No.

1. Putting the vessel 2,500 feet north of the red buoy would bring it to the right side of the channel which would be conforming to rule 19, but in my opinion would not be in accordance with the rule applicable to this particular channel and also would be contrary to the evidence. As I have shown already rule 19 could not apply to this channel. No witness gives its breadth less than a mile. A channel, which is at least J a mile wide cannot be said to be a narrow channel for inland waters. Article 19 of the Rules for the prevention of collision under the Inland Steam Vessels Act, 1917 reads as follows: ‑ Article 19.‑In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies on starboard side of such vessel." So far as this channel is concerned it was neither narrow nor safe and practicable to keep to the starboard side as the ships would have to keep criss‑crossing the channel if they were to keep to the side of the Black and Red buoys as admittedly accepted by both the parties. Both the persons who were guiding the respective vessels at the relevant time give clear evidence that they were observing the Rules required of them when passing the red buoy. D. W. 9 said that after reaching required distance of the flash point he had set his course at 90 which would have taken him past the red buoy and would have left a distance of 200 to 300 feet between his vessel and that of the plaintiff. P. W. 3 has aid: "Keeping red buoy in my left I took turn taking course at 2504 towards black buoy in my front." Then later he says: ‑ "Do you have to go between the buoys ? Yes. How close or how far the buoy had you kept when you were moving ? About 300 feet off from the buoys." Thus it is clear that both the masters were conforming to the Rule applicable to a buoyed channel as testified by P. W.

8. It follows that the plaintiff's counsel is trying to establish a case which may justify the turning of plaintiff's vessel turning to the right and also would tend to show that defendant's vessel was on the wrong side of the channel. The clear evidence and facts being contrary, the learned counsel has had to go to the length of asking this Court to reject the evidence of P. W. 3 on the point and to accept an imaginary position for the plaintiff's vessel when it passed the red buoy. In Nicholls's Seamanship and Nautical Knowledge (1950 Edition), it is stated at page 244:‑‑ "The term Starboard Hand shall denote that side which would be on the Right Hand of the mariner either going with the main stream of flood or entering a harbour, river or estuary from seawards ; the term Port Hand shall denote the left Hand of the mariner under the same circumstances." On the same page Starboard Hand Marks specifies Red Buoys. That the mainstream so far as this channel is concerned is taken to flow from Chittagong and is clear from Exh. 11 as the Buoys are marked serially from that end. Batachar Buoy No. 1 is on the East of Batachar No. 2 North Hatiya No. I is North East of North Hatiya No.

2. Considering all these evidence and circumstances I hold that section 19 is not applicable' to this channel and the vessels have to keep to the left side of the channel and to pass each other starboard to starboard. With these facts in the background I now proceed to examine the evidence for the purpose of fixing the responsibility for the accident. In this connection Mr. Hamidul Huq Chowdhury had argued that P. W. 3 could not have seen the red light of Mahtab Tareq that is the (left) port side light of Mahtab Tareq. In his examination in chief P. W. 3 has said: ‑ "Keeping red buoy in my left I took turn taking course at 250 degrees towards black buoy in my front. I find one red light and one white light on my left front side. I gave a long whistle for warning. I got no response. Then I realised that a steamer was coming to my direction. Then I gave another long whistle and I got no response to that even. Then I slowed down the speed of my steamer. By giving another small blast I turn to my right. Then I heard two small whistle coming from my left side." In cross‑examination he says that Mahtab Tareq was in his front towards left. When asked how much below east or west. He answered `I cannot remember the reading of the compass and cannot keep by heart. In cross‑examination he further states: ‑ "Up to the time of collision or shorter before that did you realise that it was a steamer or it was a country boat. 2 or 2 minutes before. Before that you did not realise that another steamer was coming. No". This evidence of the witness cuts at the root of his evidence that he saw Mahtab Tareq's red light and white light when he first saw it. If he had not realised that it was a steamer or country boat before 2 or 2J minutes before the collision then question of seeing the red light and the white light does not arise as no country boat in this country is required to carry the 3 (three) lights red, green and white. He has said in his examination in chief that he was with the tide the speed of which was 3 to 4 miles. In cross‑examination he stated that when he first saw the red and white light it was 1J to 2 miles from him. D. W. 9 has given the speed of his steamer as 5 to 6 miles. Taking the speed of the other vessel double of that it may be said that the two vessels were approaching each other at 18 miles per hour, or they were approaching about 4 minutes per mile. So if P. W. 3 realised that Mahtab Tareq was a steamer and not a country boat only 2 or 2 minutes before the collision then the ships were at a distance of half of mile of each other only. Then the evidence of P. W. 3 that he saw Mahtab Tareq's red light and white light, when it was 11 to 2 miles away goes overboard. Therefore the attempt of the plaintiff to show that the defendant's vessel was approaching its vessel from the left falls through. It seems to me therefore that the evidence of D. W. 9 is more acceptable. Therefore I accept the evidence of D. W. 9 that after passing the black buoy Hatiya Char No. 1 he drew up to 400 feet of the flash point and then set its course at 90 for the red buoy when it saw the light of Star Alnair. In this context Mr. Hamidul Haq's argument that there would have been no collision if Star Alnair had kept to its course which it had set after passing the red buoy has a sound basis. It seems to me that Star Alnair after passing the red buoy had set its course for the black buoy Hatiya Char No.

1. That is the clear evidence of P. W. 3 himself. Mahtab Tareq after passing flash point had set its course for red buoy and in these circumstances Mahtab Tareq would see the green and white light of Steamer Alnair and that is the evidence of D. W.

9. In these circumstances the master of Mahtab Tareq had acted wrongly by turning to the right. The collision therefore took place not because of wrong navigation by D. W. 9 but because of the wrong navigation of P. W.3. In this connection it must be remembered that D. W. 9 has said that if the ships had kept their respective courses he would have passed 200‑300 feet to the right of plaintiff's vessel. The genesis of the collision is clearly shown by the evidence of P. W. 3 himself when he says in cross‑examination "After you have turned how far did you go from your original course after the last blast to your right within 2 minutes. 300 to 400 feet". This evidence proves mathematically that the accident was caused by turning to the right of the plaintiff's vessel. By turning right he has covered the distance between the two ships and caused the collision. Now let me examine the extent of the damage caused by the collision although the plaintiffs' case could be dismissed only on my above findings. The damage of Star Alnair it appears from plaintiffs own documents was very slight. Exh. 12 is the first survey report submitted by James Finlay & Co. Ltd. At page 2 of the report the following occurs: ‑ "As the collision occurred on her port beam and as the vessel is lying on her port beam it has not been possible to exactly ascertain the full damage sustained to the hull. Divers were sent down into the cargo hold and they report there are 4 large dents in the hull plates on the port side. Pakistan Salvage Corporation Ltd. report there is no major damage to the vessel except for a few dents on the ship's side." This is plaintiff's own document and it conclusively proves that the damage done by the collision was very slight. P. W. 3 himself has said in cross‑examination: - "Was the ship rolling round to change the course? No. The steamer was steady after facing the accident. When it was capsized how could it be steady. I did not say that it was making Talamala." This is in consonance with the report that the damage caused to the ship was very slight. In that case the decision to rush to the shore was that of P. W. 3 himself and it was not necessitated by the collision. I am aware of the decisions that lay down that the same degree of cautious navigation is not required of a master after a collision. But all these decisions presume that the collision was the result of the wrongful act of the defendant. But such is not the case here. What happened after the occurrence is spoken by P. W. 3 as follows: ‑ "Then the steamer struck on my left side. I was then at the steering wheel in front of hatch No. 1 and hatch No. 2 and immediately it struck the steamer heeled over towards the left. After the hit the hatch cover which has become open. I gave my engine full speed forward and making my best effort to reach the shore but by that time the steamer sank down. When the steamer capsized, one side of it was on the water where we were 7/8 persons on that edge and others fell into the water." From the words "steamer sank down" one should conclude that such damage was caused to the steamer by the collision that it resulted in its sinking but the words "sank down" is inconsistent with P. W. 3's own evidence that the steamer capsized on its side. In cross‑examination he has said: ‑ "How long did you actually succeed to cover this half a mile or one mile before you touched the soil. It took 2/3 minutes before it could touch the soil." Thereafter the steamer had not sunk due to collision. But it turned on its side when it was given full speed towards the shore and it had touched the soil below the shallow water. The evidence of the Majbis D. Ws. 7 and 8 corroborated this. D. W. 7 said: ‑ "After passing the red buoy it suddenly turned towards shore and then it came straight to the shore. I heard 3 whistles. We heard some noise. After the sound which we heard both the ships backed. The eastern vessel fell upon the western vessel. What happened then. Then the vessel turned round and settled on the land. It fell on its south side facing towards the west." D. W. 8 has said the steamer after crossing the red buoy faced the accident and then drawn towards the north for about 200 cubits to 300 cubits, and it went up to the char and then toppled. Thus the evidence clearly point to the fact as spoken to by P. W. 3 himself that after the accident P. W. 3 drove the steamer at full speed towards the shore and when it reached the shore it naturally toppled over and fell to its left side. If the sinking had been due to the collision then the evidence being that the Steamer Alnair was hit on its left side by Mahtab Tareq, then it would have toppled over to the right side. There is no evidence that any water rushed into the holds due to the collision. On the other hand plaintiff's own document Exh. 12 shows that there were only a few dents on the hull of the plaintiff's vessel. Thus I hold that the sinking of the vessel was not due to the collision but to the bad navigation of P. W. 3 who without considering the necessity of such an action drove the steamer towards the shore with its natural consequences. The next question is whether in the circumstances the plaintiff could have had the ship declared as a total loss. Mr. Kamal Hossain who has also argued the case on behalf of the Insurance Company has relied on the concept of "constructive total loss". He has relied on paragraph 512 of Marsden's The Laws of Collision at Sea which is to the following effect :‑ "When a vessel is so much damaged by a collision that a prudent uninsured owner would not repair her, such vessel must be considered as a constructive total loss, and her owner is entitled to claim from the wrongdoer the value of the ship as if she had been actually and totally lost." He has relied on Exh. 14 and 14‑A. Exh. 14 is a letter from the James Finlay & Co. Ltd. which forwards Exh. 14‑A. It is an estimate alleged to have been prepared by Mr. Bellas in respect of repairs that would be necessary in the event of vessel being salvaged satisfactorily. Exh. 14‑A is an unsigned document but even accepting it as a part of Exh. 14 it is extremely unsatisfactory. Under the head `Star Alnair repairs specification' a number of items are mentioned. But no cost is given against any of the items and the total is given only at Rs. 7 lacs. The evidence as to the estimate being prepared by Mr. Bellas after a physical investigation of the wreck is nil. On the other hand Exh. 16 one of plaintiffs' documents, is a copy of cable alleged to have sent by Mr. Bellas which reads as follows: ‑ "WRECKAGE LONDON EC 3 (ENGLAND) Star Alnair flew over casualty which now completely submerged and sinking into mud stop consider salvage possible but local salvage contractor does not have and unable to hire necessary equipment stop owing coming monsoon season salvage could not commence before mid November and in meantime vessel sink further into mud stop in event vessel salved all replacement machinery and equipment would require to be shipped from Europe Incurring Heavy Import Duties stop of opinion cost of salvage and repair will exceed insured value and vessel must be considered constructive total loss. BELLAS MERCATOR." It appears from this very document that Mr. Bellas flew over the casualty. I have not come across a more unsatisfactory manner of investigation for the purpose of preparing an estimate of the actual damage. On the other band Exh. 12 shows that the Pakistan Salvage Corporation have quoted a fee of Rs. 3,60,00 for salvaging the ship and delivery of M. V. Star Alnair to Narayanganj. It is written in the said report: ‑ "After considerable discussion with this company we have been able to obtain the written expenses to undertake the work on a `no cure, no pay basis, but they say they require a Bank guarantee which should state that the payment should be made immediately the vessel is delivered afloat at Narayanganj." I do not see why such a fair offer was not accepted and so much foreign exchange which was involved in the purchase of the vessel Star Alnair was allowed to be buried in the Bay of Bengal. There were other offers also but I do not take the same into consideration. So far as the estimate prepared by Mr. Bellas Exh. l I‑A is concerned, I have already shown that it has no basis and is based on mere presumption. On the other hand D. W. 12 has given evidence that a vessel which had been salvaged after being under water for about 6/7 months there was no serious damage to the engine. In my opinion the repairs which would have required to be made would not have exceeded the value of the ship even including the cost of salvaging. Thus it could not be said that the vessel could be declared to be a total loss. The owners of the vessel have shown utter callousness regarding the question of salvage. P. W. 11 has said that he has not at all gone to the place although he has given evidence that he has used this route often before. None of the owners have even cared about the possibility of the salvage by at least a visit to the place of the accident which is on the main route between Chittagong and Chandpur. I now take up the question of loss of the goods carried by the ship. In this respect also it seems that there has been gross negligence on the part of the plaintiff and his agents to protect the said goods. I do not understand why all the members of the crew had to flee from the place of occurrence leaving unguarded the ship and its goods. The accident had occurred near the shore. There is evidence that there were fishermen fishing near the spot. Day light had appeared. There was no storm or any other unfavourable climatic condition. In these circumstances the act of leaving the ship unguarded amounts to gross negligence and the loss is wholly due to this negligence. The plaintiffs' office also, at first, took no steps to recover the goods in the impression that they were also covered by the insurance. P. W. 11 Mr. H. Khan Director of the Star Shipping Lines Ltd. has saide . . . . . . . . . . . . . . . . . . . . . . "Now we claim total loss of the cargo along with the ship. Therefore your position is that the Insurance Company is to pay you. That was the Insurance Company to pay and with that effect w.‑ have written and that was the contract." It appears that this was the basic attitude of the plaintiff No. 1 namely that the goods and the ship being covered by Insurance there was no necessity for salvage or protection of either. This I must say was an extremely deplorable attitude and has led to a vast loss to the community in the shape of foreign exchange and essential goods. As a result of this attitude they took no steps to recover the goods. Later when they learnt that the Insurance did not cover the goods, they had made good that loss to the Burmah Eastern Ltd. from their own funds and as such they are now claiming it from the defendant. In these circumstances I hold that the loss of the goods was caused entirely by the negligence of plaintiff No. 1 and its agents and it is not at all attributable to the collision. Then the next point which arises is whether the defendants are liable for loss of profits. The collision as I have already held was due to the wrong navigation of the plaintiffs' master and therefore the liability is not that of the defendants. Thus all these findings lead me to hold issue No. 5 against the plaintiff. Issue No. 3.‑So far as issue No. 3 is concerned I hold that the suit is maintainable by the plaintiff No. 1 and plaintiff No. 2 as the cause of action is the same as regards the claim of both the plaintiffs. Issue No. 6.‑The plaintiff is not entitled to any other relief. In the result I hold that the collision was the result of wrong navigation by plaintiff's servant P. W. 3 and defendant's servant D. W. 9 was not to blame in any way. In fact D. W. 9 had given three blasts showing that he was backing after stopping his vessel and this fact has been corroborated by the Defendants' witness who are quite independent. As such 1 hold that D. W. 9 had done all that he could to avoid the collision but it could not be avoided owing to the wrong navigation by P. W.

3. In these circumstances I dismiss the suit with cost. Certified for two counsels. Before I part with the case I must state that great industry and pain were taken by the learned counsels on both the sides in conducting this case, which involved complicated questions of fact, and law and I thank them for their able assistance. K. B. A. Suit dismissed.