V. COMMONWEALTH OF AUSTRALIA ORIGINAL REASONS FOR JUDGMENT lez Judgment delivered at... S¥ANEY....... W. M. Hoverox, Govt, Print. Melb, on... Friday,..21st.September 19560 ©2978/85 TRANS OCHA' ATRWAYS LIMITED COMMONWEALTH OF AUSTRALIA. JUDGMENT I direct that judgment be entered for the plaintiff for the sum of £31,000 with costs. OCEANIC AIRWAYS LIMITED Ve COMMONWEALTH OF AUSTHALTA. TRANS OCEANIC ATRWAYS LUMTED COMA OF AUSTRALTA, SUDGMENT. WILLIAMS J. ! The plaintiff company sues the Commonwealth of H Australia for the dam: » done to one of its aircraft, a Solent flying boat, in a collision between the aircraft and a dredge which occurred in the Hamilton Reach of the Brisbane River at about 11.45 p.m. on the night of Sunday, 28th October 1951. The aircraft was then on a commercial flight from Sydney to Port Moresby via Brisbane carrying passengers and freight. Fully loaded it weighed 79,000 vounds but it was on this particular occasion only loaded to 71,000 pounds. It was in charge of Captain Mathieson, the flight superintendent of the plaintiff, an experienced pilot in the flying of flying boats including Solents. He had with him First Officer (now Captain) Goddard, another experienced vilot, and Captain Cole also an experienced pilot of flying boats but a pilot who had just been through a conversion course in order to qualify to have his licence endorsed as a pilot for Solents. He had previously only taken off Solents twice at night and that was at Rose Bay. In order to stop at Brisbane it was necessary to land on and take off from the Hamilton Reach of the Brisbane River. That Reach runs approximately in the direction of east and west. The landing and take off were to be from west to east. A flare path had been laid on the northern side of the river from about the western end of the Cold Stores Wharf to the eastern end of the B.H.P. Wharf. The lit portion of the flare path, about. 4,700 feet in length, really the flare path proper, comprised a line of five flares roughly 1,000 feet apart parallel with the northern bank of the river and a sixth flare on the 2. southern side of the river called the "gate flare" approximately at right angles to the fifth flare and usually about 500 feet from ite The object of the flares was to indicate the area of the river that had been swept for the landing or the take off, that is searched by the crews of two control Launches for floating debris and the debris picked up. These sweepings took place before an aircraft landed and during the period between its and subsequent take off. In line with each end of the 1it portion were unlishted areas that had also of the 28th a dredge been swept in this way. On the ni was anchored beyond the Lit portion of the flare r nh to the north-west of the Yo.4 buoy on the southern. bani to v Solent was to be moored. Its bow was facing east and its stern west. It was 30 feet in beam and 200 feet in length. It was firmly anchored in a fixed position by six anchors and it had red and green passing Lights one below the other hung on a gaff on its port side 46 and 40 feet above the water respectively and a white light near the water on its stern also on the port side. It was engaged during week days in dredging the leads in the river and was approaching the eastern end of the lit portion of the flare path at the rate of 130 feet a day. On the night of the 28th it was roughly 800 feet away from this end. Mathieson landed the aircraft himself and taxied it to its moorings at No.4 buoy. The buoy was in a somewhat con- gested area, a number of Army boats amongst other craft being moored nearby. At that time the tide was just about at the flood and slack. At 11.30 p.m. when the aircraft left the buoy to taxi to the west end of the flare' path in order to take off the tide was ebbing strongly. There was a two to three knot crosswind with a component of headwind. The visibility was good. Mathieson was in control at the commencement of the taxi-ing but on the way to the No.1 flare called upon Cole to assume control and take the aircraft off. Cole moved into the pilot's seat and Mathieson moved into that of the first officer. But the aircraft nad dual control and could be 3. flown from either seat. The throttles of the four engines were between the two seats. It also had two systems of communication, the one tuned to the sround so as to receive and send messages from and to the control tower which was situated at Begle Farn and the other to communicate with the engineer. At all times Mathieson had the earphones of the former system on his head while Cole put on the earphones of the latter when he assumed control of the take off. The flare path was in charse of a control launch which on the night of the 28th had on board Coxswain Pick, Foatman Maddox and Corriunications Officer Nagle. In the auxiliary launch was Coxswain Simpson. in the Control Office at Eagle Farm was Traffic Controller Jones. The Hamilton Reach was an area where the Air Traffic Control Service was in operation and Regulation 134 of the Air Navigation Regulations 1947-1950 provided that the pilot in command of an air- craft operating in such areas should comply with air traffic control instructions. The method of control was for the control launch to send a message to the control tower for communication to the aircraft and for the officer in the tower to relay the message to the aircraft. At 9.48 o.m., when the - Solent was near Southport, on its way to the Hamilton Reach, Mathieson received a message that there was a dredge anchored 100 yards north-west of the moorings and that the control launch would lead him there. At 9.51 he received a further message from the tower that there was a ship in the flare path and this caused hin to make a circuit, before comiencing to land. He landed at 9.59 and as he landed asked the tower whether the aircraft was intended to pass between the north bavk and the dredge and was told that this was correct. As a flying boat lands it first of all planes onthe water, on what is called the step, and then, as it loses speed, it settles into the water as a hull. As it taxies to the mooring the engines are tested, the two inboard motors are shut down, and the taxi-ing is completed with the outboard motors. As the aireraft lands the control launch is situated near the 'No.1 flare. It chases the aircraft along the flare path and usually overtakes it before it reaches the end of the flare path. This occurred on the present occasion and the control launch led the Solent From the No. 5 flare around the east of the dredge to the No.4 buoy flashing an Aldis Lamp on the dredze so t the officers on the aircraft could see it. The aircraft having been moored, the three officers went ashore to the flying boat base on the northern shore of the river and later returned to the aircraft. On each occasion they passed close to the dredge but they may not have been looking out fr it. When they returned to the aircraft at about 11.30 p.m. preparations were made to take off. Mathieson asked fora clearance to slip his moorings. He received a message that when he slipped his moorings he was to move ahead towards the gate flare for a right-hand turn into the flare path and to have regard to the dredge and strong ebb tide and he was informed that the control launch would be by the gate flare. In his evidence Mathieson denied that the words "gate flare" were used in this messare. He said he was told to taxi ahead to the flare in front of him and then out on to the flare path. He admitted that he saw a flare towards the south bank to the westward of him but throughout his evidence maintained that the message he received did not refer to the gate flare but only to a flare "and that when he was taxi-ing from the moorings preparatory to the take off he did not recognise this flare as the gate flare but took it to be a taxi flare to guide him out of the moorings. Of this evidence I shall simply say that I am not prepared to accept it. Mathieson may possibly have overlooked the word "gate" in the messaze but I cannot believe that he failed to 'recognise the flare in question as the gate flare when he saw it. His evidence that he thought it was some strange new flare placed in the river to help him taxi off is not acceptable. The layout of a flare path was quite sterectyped and well-kndwn to him. It consisted of a line of flares on the one side of the lit area and a single flare approximately opposite to the last 5. of these flares on the other side to indicate the width of the swept area. Ma. eson had landed and taken off at night on many oceasionse was a navigator as well as a pilot, and he was very familiar with this layout. Why Mathieson should have been reluctant to admit that he knew that it was the gate flare IT am not sure. He may have thoucht that such an admission would weaken the plaintiff's case. Whatever his reason may have been I have felt compelled to scrutinise the rest of his evidence with particular care, Tf the plaintiff's case rested on the acceptance of this evidence, it would fail. But, for reasons which I will give, it does not appear to me that the plaintiff's case really depends at all unon whether Mathieson realised that the flare near the moorings was the gate flare or not. After it had slipped its moorings the Solent taxied to the start of the take off. It wade a turn to the right and was then in the lit area about in line with the No.l flare. The control launch was slightly to the north-west of this flare off the flare path and the auxiliary Launch was slightly to the north-east of the No.5 flare. Before the . aircraft was cleared to take off it was Sivpson's duty to flash a green Light to the control launch to indicate that all was clear at his end. The control launch was then free to clear the aircraft for the take off. This procedure was followed on the night of the 28th. Simpson flashed the green light and the control launch cleared the Solent for the take off. It comuenced to take off. It had by this time drifted with the bide, I think, a short distance beyond the "No.1 flare. The take off is in three stages: (1) the emergence of the bull from the water on to the step; (2) the planing along on the step; and (3) the aireraft becoming airborne. (usually described as becoming un- stuck). After it is airborne the aircraft flies st: a short distence just above the water to increase its sneed until it is safe to comience to climb. An estimate of the safe rate of climb in the case of the Solent would seem to be 1 in 40. Until the flying boat attains a certain speed, usually attained when it is on the step, it cannot be steered by the rudder. It must be steered by the provellors by a differential use of the power of the motors. In the case of the Solent the revolution of the engines is anti-clockwise and this gives the aircraft a tendency to veer to starboard, called torque. This tendency is increased if there is a side wind blowing in that direction as there was in the present case. To check this tendency the throttle of the No.l engine is retarded behind the throttles of the other three engines. If the throttle of the No.1 engine is advanced too rapidly the aircraft may then veer to starboard and the throttle may have to be retarded again. In the coaiencement of the take off in the present case Cole annears to have advanced this throttle too rapidly due, it aay be, to his lack of complete familiarity with the behaviour of the particular aircraft and to have had to retard this throttle twice and this resulted in a somewnat prolonged take off. Generally flying boats taking off from the Hamilton Reach become airborne slightly before or opposite the No.4 flare. The Solent is a heavier boat than many other flying boats but she was Lightly loaded on this occasion and I am satisfied that if the take off had been done by a pilot as thoroughly familiar with the Solent as Mathieson the aircraft wouid have become airborne by the No.4 flare. But it was only just on the point of becoming unstuck, I believe, when it reached the No.5 flare. I also believe that it was slightly further to the south than usual in the flare path. r an satisfied however that if the take off had been completed and no attempt had been made to abandon it, the aircraft would have passed through the flare gate well in between the No.5 flare and the gate flare. But shortly before the Solent reached the gate Cole and Mathieson, d and Goddard who was standing just behind them, all saw lights looming directly ahead of them which they suddenly recognized as an the lights of the dredge,/an attempt was then made by both Cole and Mathieson simultaneously to abandon the take off by shutting down all four engines. But it was too kbe to stop 2. the aircraft before it reached the dredge and an attempt by Cole, by manipulating the engines and the ailerons, to tilt the aircraft and lift the starboard wing over the height of the dredge also failed. The starboard wing of the aircraft hit the davits of the dredce about 16 feet above the water, breaking the end portion of this wing right off. Fortunately there were no casualties amongst the passengers or the crew. This brings me to the crucial vart of the case. The flares were electric flares on smail floats anchored to the bottom of the river first by 60 feet of rope attached to the float and then by 6 feet of chain joining the rope to a kedge-anchor weighing about 8 pounds. The river was about 22 feet deep on its northern bank where the five flares were anchored and about 16 feet on its southern bank where the gate flare was enchored. These light anchors must have dragged at times because Pick said they had to a watch on the flares and, if t) noved, to shift them back into position. But, quite apart from the risk of the anchors dragging, the length of the rones and chains must have allowed the flares to move considerably due to wind and tide. Immediately after the accident occurred Mr. Fry, the then Suverintendent of Air Navigation in Queensland, gave directions that the flares were not to he ved and from their vos on next morning caused a plan to be vrepared which is Exhibit 2 in the case. Eut the flares need not necessarily have been in exactly the same position on the following morning as they were at the time of the accident. Normally the movement of the flares to the extent allowed hy the loose anchorage would not have been very important. Wherever the No.5 flare and the gate flare could have swang to, an aircraft that passed »etween them, even if it only became airborne at the gate itself, should have been safe from any obstacle on the water. But the presence of the dredge to the east of the flare path.on the night of the 28th October made the position of the gate flare of vital importance to the safety of the flare path in the present case. The pilot of an' 8. aircraft using a controlled flare path was undoubtedly in my opinion entitled to assume, in the absence of a clear warning to the contrary, that the aircraft would be safe if he flew it throurh the flare gate. + Shand, I think, very fairly admitted this and indeed T do not think that he could have done otherwise hecause Cantain Sims, a very exncrienced pilot of flying boats, now retired and nployed by the Department of Ci il Aviation as an Airways Surveyor, said that, unless there was something to indicate to the contrary, it would be perfectly proper for a pilot to fix mid point between the Fo.5 flare and the gate flare as his point of t and steer for that. Mr, Shand admitted that the position of the dredse on the nicht of 23th October nade the flere nath unsafe and that, ence on the part of without a warning, it would have been negli the civil aviation authorities to have cleared an aircraft for take off. But he submitted that the warr g was, in this particular case, what he described as an intesral vart-of the safety of the flare nath, and asked me to find that Mathieson from the evidence of the nessages he received from the control tower, of his own inguwiry on landing whether he was to pass to the north of the @redre on his wey to the moorings and of his visual obs on of the dredse must have 'mown that it was situated within the limits of two parallel lines drawn along and beyond the flare path, or alternatively that Mathieson, who was an exnerienced pilot and ieator, should by the exercise of ordinary aeronautical skill and prudence have realised the dancer of the dredge being there. 'This is, in effect, a n that Mathieson knew or that alternatively the ieson what should have been il aviation authorities fave Ta an adequate warning that the flare vath they had srovided was a hazardous flare vath which could only be safely used for the take off vrovided he took the necessary stenvs to avoid the dredge either by steering to the north of it or by flying over it if he could gain sufficient height before he reached it. It is to be noted that neither the control tower nor the control oe on ss to the exact launch gave Mathieson any precise location of the dredge in relation to the take off or as to its dinensions and the manner in which it wes anchored, or the number, nature and position of its lights. The messages he received related only to the dredge as a hazard to the aircraft when taxi-ing to and froa the No.4 buoy and to the precautions that should be taken to avoid it at these particular tines. Tris was only natural because at no stage did Pick, from whom the messaves originated, consider the dred-e a hazard to the landing or take off of the airecreft. No instructions whatever ice off were given to Mathieson that it would be danserous to % excevt in soie special manner. If an adequate warning of the danger frou the dredge could have been sufficient to uake ihe flare path safe, the messages Mathieson received were in my ovinion quite inadequate to qualify as such. It is the duty of the Court, where the plaintiff alleges tinat the defenden* wes negligent and that this negligence was the effective cause of the accident, and the defendant charges the plaintiff with contributory negligence, to exanine the alleged negligence of the defendant in the first place. The Air Traffic Control service was under Division 2 of Part IX of the Air Navigation Regulations in control of the telce off and the civil avi m authorities were bound, in my opinion, to vrovide a flare that was sefe if the pilot of the aircraft took off in way by through the gate or, if the flare oath was not safe if usec this way, they were bound to give a clear and explicit warning as to the special precautions that should be taken so that it could be safely used. In the present case,the flares could have been laid so that the nilot, by flying straight through the rate, would nave been bound to nass to the north of the dredze. As the flares were not so laid, the anthorities were bound to lot that the dredge was there giving ulars of its on, dimensions and lichts and that would only be sefe to use the flare path if the tase off could ie anaged that the aircraft would pass to the north of it. 'The authorities did neither. 10. They relied on the pilot finding out for himself where the dvedee was and taki g his own precauticns to avoid it. They were in control of the take off. They cleared the aircraft for the usual take off although it was in the special circumstances unsafe for the aircraft to be taken off in this Waye I am satisf d that the authorities failed, in the circumstances, to take due care for the safety of the aircraft, that the defendant was through them guilt y of negligence and that this negligence was the effective cause of the accident. remains to examine the question of contributory igence because if the negligence of the plaintiff, in this case the negligence of its servant Mathieson, materially con- tributed to the accident, then the plaintiff cannot recover. The tort if any was committed in Queensland and the case has been heard in New South Wales. Mader certain circumstances the question could arise whether the applicable law was that of Queensland or New South Wales, Dut it does not arise in the present case because on 28th Uctober 1951 the law of Queensland and 'Yew. South Wales was the same, that is in both States the law of negligence and contributory negligence was governed by . the comuon law. Accordingly, the onus is on the defendant to vrove contributory negligence but if it is proved it is a commlete defence to the action. 'The de itions of con- tributory n isence are legion. But it will be sufficient to refer to the nassave so often cited in the speech of Lord Shaw in Anglo-Nowfonndland Develonuent Co. Ltd. v. The Pacific tion Co. 1924 A.C.406 at p.¥19eh20: 'he principle does not avoly to shipping law alone, but to all the law of contributory neglirence, from Davies v. Mann LOM, &.W.546' dowmwards. And I take the principle to 'e that, although there might be - which for the wurpose of this roint I am reckoning that there was - fault in heing a position which makes an accident vossible yet, if the nosition is recognized y the other pribr to operations which result in an accident occurring, then the author of that accident is the party who, recognizing the position ofthe other, i vtly to avoid an accident which. with reasonable conduct on his vart. could have 'been avoided. Wanless that principle be avpliea i ould be always open to person negligently and recikies approaching, and ) avoid a known danger, to plead that the . reckless encountering of danger was contributed to by the theve was a danger to be encountered. fact that il. The onus is, as I have said, on the defendant, against whom nerligence has been »rove ? negligence. the basis of the ciarge is that ought to have own that the flare nath was unsafe because the dredge was in occurred because athieson oosition before taking off hiuseif and alternatively, if Cole was to male the have inmarted to Cole the knowleds relative positicn of the dredve te have made sure at Cole realised the dangerous nature of the take off, that he should have instructed Cole that ne wist decide for hinself whether or not it was safe in these ciremis take off at ell, and that, if cided to da so to use the full ngth of the north of the drec Ib was off when the taxe/was delaved ty the aireratt g to starboard, rected Cole to abandon tne take off. s uld have imnediately &: wledge Alternatively it was submitted that ilatv:ieson with his % that the dredge was somewhere to the east of the flare nath should not have handed over the control of the take off to pilot who had never taken a Solent off from the Naiilton Reach before, who had only taken a Solent off twice at night anywhere and who, not knowing that he was to te asked to do the taxe off until a ter the aircraft had left the moorings, had no,real opnortiunity of ascertaining: the nosition of the dredge. "hese are submissions ade from various anrles that Mathieson was gnilty of contributory negligence because, the light of what knew or ought to have known, he did not tae reasonable care for the sa ft and its ety of the airez assengers and crew. If I was satisfied that Mathieson Imew Ge) or ought to have known that the dredse was in the way of a pilot making an ordinary use of the flare path I would be pre- ence. Tn ared to f tory negl hat case the only safety of the conduct on his vart reason, y consistent with t 12. aircraft would probably have been to refuse to take off at night. But the evidence is quite insufficient to justify such a finding. It would certainly not be justified by Mathieson's reluctance to admit that he knew the flare near the moorings wes the gate flare. This flare could be in close proximity to the dredge without the dredge being a hazard to the take off. Indeed the knowledge that it was the gate flare might easily have lead Hathieson to believe, if he had thought about it at all, that the warnings that were given about the dredge were intended to be confined to the occasions when the aircraft was taxi-ing in close proximity to it. Mathieson was cleared to take off without any specific warning relative to the take off. He must have known that the dredge was somewhere in the river to the east of the flare vath, but that knowledge falls far short of actual knowledge that it was in the track of the take off and it was not knowledge from which any skilled pilot ought reasonably. to have assumed that the dredse would be a hazard to the take off against which if he took off at all he must take special vrecautions. It was subuitted by ? Shand that Mathieson must have known that the dredge was in the vath of the take off because he must have seen it there because on landing he asked if he was to pass to the north of it in order to reach the moorings. T.am unable to draw this inference. I accent Mathieson's evidence that in order to reach the moorings he followed str ht up the river and did not have to deviate to avoid the dredse. At that time the tide was slack and the gate flare was probably to the north of where it was at the take off by which time it had probably been carried towards the southern shore of the river by the ebb tide. I am not satisfied that at the time of the landing the dredge was within the prolongation of the flare path. It could have been and probably was to the south of it. In Exhibit 2 the gate flare is shown over 600 feet to the south of the No.5 flare. Put the evidence of the crew of the launches is that their practice was to lay the gate flare about 500 feet to the south of the 1B. No.5} flare and 300 feet to the east of it. This gives some indication of the extent to which the flares could move about on their loose moorings and of the extent to which the direction of the path through the flare gate could change in consequence. In the absence of a special warning relating to the take off Mathieson was, in my opinion, entitled to believe that the ordinary use of the flare path would be safe. No such warning was given. The crew of the control launch said that they could see the lights of the dredge from where the launch was near the No.i flare at the commencement of the take off. I accept this evidence but it does not mean that these lights would be apparent to persons who wi not alerted to look for them. They could easily form part of the general pattern of the lights ahead of the aircraft on boats anchored near the southern bank of the river and on buildings and other erections on the shore beyond. If the pilots had no reason to be ve that the dredge was a hazard, there was no reason why they should be on the alert to lock for its lights. This duty would only have arisen if their attention had been drawn to the necessity of taking care to avoid the dredge and to these Lights as showing its position. Mathieson would then have had to decide whether to abandon the take off for the night or to risk being able to take avoiding action. It way also be that, if the Solent had become airborne sooner, as it might have in the hands of a pilot more used to its performance, it would have reached sufficient height in time to fly over the mast of the dredge. But to persist with the take off after it had been slightly prolonged would be quite justifiable, unless a special warning had been given that the take off should be abandoned unless the aircraft had become airborne by a certain point because, unless the aircraft reached a certain height in time it was likely to hit the dredge. The only criticism that possibly may be levelled against Mathieson is that, having seen the dredge and its vicinity to the gate, he might well have considered it advisable to take off the aircraft himself. But he could not be said to have failed th. to take due care for its safety by allowing Cole to do so, especially in a machine with dual control. If Cole was a little slow in becoming airborne because he was not so experienced in keeping the aircreft straight by the differential use of the engines as Mathieson would have been before the rudder could be used, any prélongation of the take off that occurred could not be evidence of want of due care for the safety of the aircraft when Mathieson had no reason to believe that its safety devended on its being able to fly over the dredre. The accident was caused, in my opinion, and I so find, by the negligent laying and control of the flare path in the special: circumstances of the case. This is not to attribute any blame to the crews of the two launches. They were not instructed to take any special precautions by any higher authority. They were simply instructed to iay the usual flare path and that is what they reported to the control tower had been done. It is unfortunate that it did not occur to Pick that he must be careful to place the No.5 flare and the gate flare in such relative positions that an aircraft which flew between them would fly to the north of the dredge. It is also unfortunate that it did not occur to him to cali Mathieson's attention to the lights of the dredge before clearing the aircraft for the take off. But apparently neither of these points did occur to him and there was really no obligation on ro beyond his instructions. He led the aircraft safely to the No.l flare in order to take off. He pot the green light from Simpson and he performed all the duties he would have performed in an ordinary take off. Apart from Mr. Fry, who only asswned office a fortnight before the accident and could not be blamed for not having acquired personal know- ledge of the denger of the dredge, no superior officer of the department, not even the officer in control of operations on the night in question, was called by the defendant. There must have been some person in the denartment who knew of the presence of the dredge and its advance upon the flare path day by day in the period between September 13th when it commenced operations and the date of the accident, but no special precautions appear to have heen talren at safeguard aircraft against this unusual and oncoming hazard. In these circumstances it would be unreasonable to blame Mathieson for sot realising the danger when all that he was ever told was in effect to take care when taxi-ing close to the dredge for the purpose of picking up or slipving his moorings. Having left those hazards behind he was entitled to assume, until he was told to the contrary,that only the usual perils of aeronautical »avigation lay ahead. The parties have agreed that, in the event of my finding for the plaintiff, the amount of damages to be awarded should be £31,000, and in my opinion there should be judgment for the plaintiff for this amount but T do not feel that I should conclude my reasons without making a few remarks about some of the evidence given by +. Fry and Caotain Sims. According to Fry, the dredge was net a hazard although it was in the line of the flare path because it was a safe distance beyond the gate. He did not think the dredve was dangerously close in the case of a pilot who Lelieved that he was free to take his aircraft out at any point between the io.5 flare and the gate flare. He did not think that it would have been dangerously close even if it had only been 400 feet beyond the gate because the pilot could have taken the aircraft round the dredge or even atove it. Tio doubt it would have been possible for the Solent to have passed by or even over the dredge in safety. But for a high officer of the Department to swear that he considered that it would be safe for air control to clear an aircraft for take off in these circuistances without ensuring that the pilot in command knew of the hazard is disturbing. He considered that it would be safe for air eontrol to tell the pilot that the obstruction was "there" (presumably that would mean somewhere ahead of the flare gate) and to "observe it" and that this would be an adequate warning to the pilot. He said that it would be sufficient to tell him 16. that the obstraction was within some distance fro some object such as a wharf on the shore, fhe pilot would then have the final say whether to take. off or not. He could go outside the erea marked out for hin by the department and decide for himself where to take off. He could even decide to have the flare path moved or have a further flare path swent. I find this evidence quite unacceptable. With some doubt TI allowed lir. Shard to ask Sims as an experienced pilot what precautions if any in his opinion Mathieson should have taken before taking off as a matter of aeronautical skill and prudence having regard to the knowledge available to him from the message he received about the dredge before landing and what he was shown after landing whilst taxi-ing from the No.5 flare to his moorings and Sims exoressed the opinion that Mathieson should have ensured thet there was adequate clearance between the dredge and the northern flare path. If this meens, as it would aovear, that Helhieson should have ensured that the dredve was not in the line of the flare path he was instructed to use by the department this dence is equally unacceptable. The pilot in command of an aircraft" is, of course, responsible for the opera mand safety of his aircraft. This duty is imposed upon hia by the comion law and by Regulations 124 and 219 of the Air Navigation Regulations. He would, no doubt, be justified in disobeying an instruction aircraft woul if he did not do so, the safety of endangered. He could refuse to take off at all in such circumstances. Put the provisions of Division 2 of Part 11 of the regulations as they existed in 1951 and in particular Regulation 147 (5) clearly implied that a pilot was entitled to assume that if se was cleared for take off along a re path he might safely do so in the usual manner subject to obeying any svecial instructi ns to the contrary that he might receive at the time. He could not be under an obligation to ht have ascertain for himself whether some obstruction he ° 17. reason to believe was somewhere ahead of him was, in fact, in the line of flight along the path he was invited, indeed instructed, to use. The purpose of preparing a flare path must be, I should think, to provide a safe ce off. for the aircraft. Probably Fry made the rash statements to which I have referred under the strain of cross-examination. Fortunately his conduct subsequent to the accident guite belies his words because immediately after the accident he gave instructions that the Hamilton Reach should no longer be used for night operations and that the Lytton Reach must be used instead. The continuous advance of the dredve onto the flare path in the Hamilton Reach was a factor in this decision, But Fry was also of opinion that 7,300 feet should be swept for flying boats to land ani take off from of which 6,000 feet should be Lit and that at the aporoach to the flare path on either end there should be no obstacles that could be struck in the area by an aircraft taking off and climbing at the rate of 1 in 35. For these reasons I give judgment for the plaintiff for the sum of £31,000 with costs.