NAVIGATION CO. ITD. IAN STE. UST! WEST ISAACS J... JUDGMENT . Delweved 16. 9.1927 HAWKES x = 7 WEST AUSTRALIAN STEAM NAVIGATION CO. LTD. TUDGMENT., MR, JUSTICE ISAACS, The owners of the schooner "Merlin™ sued the owners of the steam tug "Minderoo" in admiralty for negligence whereby the vessels came into collision in the open ocean, to the damage of the schooner, Burnside J,, who tried the case, and by consent without experts, found that though the captain of the tug committed an error of judgment, he was not negligent, and therefore judgment was given for the respondent. From that. judgment this appeal is brought; Notwithstanding Mr. O'Connor's forcible presentation of the appel- lantts case, it is clear the decision of the learned trial judge cannot be shaken. Negligence is a negative expression and implies a want of that care which the law requires in the given circumstances, The standard of care is always a question of lew, the failure to maintain it is a question of fact. Consequently, in every case of alleged negligence the first requisite is to ascertain or assume the legal standard of care which was demanded of the defendant in the circumstances, This is very distinctly stated by Lord Kinnear in Butler v Fife Colliery I (1912 A.C., at p. 159) in these wordsi- "Negligence is not a ground "of liability, unless the person whose conduct is impeached is under a "duty of taking care; and whether there is such a duty in particudar "circumstances, and how far it goes, are questions of law, Ifa ee "definite duty has been ascertained, 9 finding that it has been duly "performed or neglected is @ mere finding in fact.............But a "finding as to negligence which implies the existence of a duty without "explicitly defining it, is a proposition of mixed fact and law." Lord Herschell in Membery's case (14 A.C., at p. 190) had said very much the same, In this case, both bécause the learned trial judge Mak considered the respondent to have committed an error of judgment, and because of some of the arguments advanced, for the appellant, it. is of some import- ance to state briefly the circumstances, and to enquire affirmatively what, legal standard of care they imposed on the respondent, The appellant's vessel was at' Onslow on the north-west: coast. of this State, and its captain agreed! orally with the'captain'of the tug to tow the schooner round the North West Cape and then south to a given . : _ tow destination, Shortly after rounding the''cape 'tHe &#m+line broke, No negligence is so far imputed, The tug prepared a line to 'cast an board the schooner, and then returned on"hér course so as°to-approach the schooner and resume 'the towing. While engaged in' taking up a position from which to place tye iine 'onboard: the schooner, the tug was forced by the wind and tide against the' side' of the schooner, and caubed her dome damage. Various suggestions were made during the present argument of learned counsel' in order to establish negligence -- or want of due care == dn the part of the' tug. Suéh, for instance,- ae (3) » approaching improperly, not preserving mobility, not retiring when again Carling tHe Gone, aang Whatever might have been the proper conclusion in other circumstances, the conduct of the respondent in the circumstances of this case' is not shewn to my satisfaction to fall short of the required standard of care. I shall first state what I understand to be the right standard, so far as relevant, and then I- shall explain why I prefer to say that the conduct complained of is not shewn to fall below the necessary standard, The parties were in contractual relation, No question arises as to the condition or fitness of the: tug or its 'equipment. The contest is simply as to its behaviour. Manifestly it had rights and obligat- ions which are absent in the ordinary cane of ships that pass tach other, they having no rule of conduct but that prescribed by sea regu~ lations, or dictated by respect for the aéhianae of humanity, or the common duty of reciprocal care on the highway of the ocean. The parties here were bound by contract to carry out an enterprise, and the responsibility of the tug has been stated in several cases of authority. In the Julia (14 M.P.C., 210) Lord Kingsdown at p. 230 stated with considerable fulness; the mutual. obligations of the parties to such an engagevient apart trom any stipulation to the contrary, He said, inter alia:- "When the contract was made the law would imply "an engagement that each vessel would perform its duty in sams com- "epleting it; that proper skill and diligence would be used on board "of each; and that neither vessel, by neglect of misconduct, would (4) "create unnecessary tisk to the other, or increase any risk which might "be incidental to the service undertaken." In the Ratata (1898 A.C., at p, 516), Lord Chancellor Halsbury speaks of the undertaking of the towage contractors:= tte exercise reasonable care and skill in "the performance of the obligation which they have taken upon' themselves "for hire and reward in conducting the business of the towage to its "consummation," Sir Samuel Bans, when President of the Admiralty Court, said in the Marechal Suchet (1911 P., at p. 12), that "reasonable "skill, care, energy and diligence should be used in the accomplishment "of the work." It ia therefore clear that in estimating the duty of the respondents, we must take into atcount as one element their i right and their obligation to carry the towage to its consummation, if by, reasonable nautical means this could be done. Any instance of this may be found in the Point Anne Quarries v the Whalen (39 T.D.R., 37, P.C.). Applying then the standard of duty as stated in the Julia (sup), we must approach the question of fact, as to whether there was such a negligent act or omission as is suggested from the standpoint of a ia 1 | | person who is bound to choose between action and inaction, and bound bi i | | in so choosing to use his skilled judgment according to the circumstances. | The learned primary judge was quite correct in holding that. a te mere error of judgment is not in such a case necessarily equivalent t to negligence, A prudent navigator weighing reasonably, and to the best of his ability, all apparent circumstances, including the exigency of time, may still without reprgach misjudge tide or wind or waves or ere other operating event, and so form a judgment erroneous in fact, As he is expected and bound in a case of this kind to form a judgment and act. upon it, error is not decisive, The learned trial judge who was especially entrusted by the parties to determine the facts without expert assistance, has seen and heard the witnesses, and ha: before him the natural conditions aa appearing to the contesting parties: Ihave no doubt the confidence both parties placed in His Honor's ability to judge of. the requirements of the situation accounts for the absence of further expert testimony, Probably the learned judge has @ more than ordinary experience in such matters, and doubtless a@ much more reliable acquaintance with navigation than I possess. . His investig- ation has been thorough, and his easona full and explicit. He was left unsatisfied by the-appellant as to the respondent's alleged negligence, and so far as I am able to judge for myself, the conclusions at which he arrived are correct, Remembering: the duty of the tug to resume ite enterprise without undue delay, if that could be donw without unnecessary danger, the bona fide efforts it made to do sd,. the complications that presented and . themselves, , the absence of any distinct and reliable proof of failure to display that seamanship ordinarily to be expected in the circumstances, I see no reason for holding in opposition to the opinion of Burnside J, that the appellant has satisfied the burden he undertook . Tn this connection I would refer to what Lord Kingsdown said in the Julia (sup., at p. 236) as to the position of a appellate tribunal in a matter of this a (6) o a . yw" nature, The observations apply only by analogy, because the circumstances f f i are not identical, and therefore the analogy, like every other analogy, is not perfect, But it is so far similar as to be of application to the present case, Lord Kingsdown gaid:- "In these cases of appeal "from the Admiralty Court, when the question is one of seamanship, where "it is necessary to determine, not only what was done or omitted, but "what would be the effect of what was done or omitted, and how far under "the circumstances MXSXEXEREEXaxximpKupexr the course 'pursued wae proper "or improper, their Lordships can have but slender means of forming an "opinion for themselves, and certainly cannot have better means of form- "sing an opinion than the Judge of the Admiralty Court." See also per Lord Sunmer in the Hantestroom (1927 A.C., at pp. 47-48). The question we are asked to answer is not one of common knowledge or experience; it is very special ana depends almost wholly on expert training or great familiarity with the subject of navigation. In part also it depends on the preference given to some very discordant state- ments by witnesses we can neither see nor hear. Consequently, to reverse the finding of Burnside J, would at best be mere guesswork, and as it is, my own impression, so far as I am able to form one independent- ly, is that the judgment appealed from is sound. This appeal should in my opinion be dismissed, = An eee ee pe bectaco I amor 2 bptiton that ae mike shedld be dlanisced;and@! substantialzy re tie a \ ohare Feagons. ptatea m tne earned, guage of, firat sostance. 'Bayona : Daniéel'v: Metropolitan' Rly! Co(L.R.216, 222;see;per Blackburn. uP 8 oer seaaen. ine mish 4 way be 'interred at tere is. reason: Ragas he whigh fhe, dofondante ment and te ot Feported tajand Fa go ee ts hha' €fageviawy The = i or) 22 tings mat partiouae precant teas sre» nave been "gush . cathy BS Be " Wdator tuner occur witnoat neal theses: Indeed, I. am.not sure,that . the, learnat aoc +e. en even more severe on 'ihe' Winderdo® than he' need" have' been,' " Ts 'to 'the laster's e: 'ror 'of udgment 2 rather 'think that ba S Re "the Master merely 'aia not 'forsee what 'he 'could' fot "¢éxBee--ethe ® the effect of the wind on' the Minderdo undér'thie' circum ant ia Pines s ey ¢ the oa stances. common, 'aeanalinbip, to have ogcurred, Tne evidence however 1s so meagre and 'unsatisfactory that I do net think that we can interfere with the findings of the learned trial judge. the sats or omigsione relied upon a8 gonst- ituting negligence are :- (1) That the' Mindaroo should have gone to lee~ ward instead of to windward of the Merlin 'and thus floated a ling te her. The lesrned judge regards the suggested course of action as more danger ous than thet which was actually adopted. In my opinion he ie clearly Fight in that view, and in any oase we cannot differ from his. (2). The failure of. the! Mindgroo 40 fire = x6 rooket on to the! erlin'with @ ling attached. No avidence whétever was offered in support of this suggestion, and we are quite unable to app- Teciate ite praotioability or impraetibility in the oircusstanoss of thia ease Or even to say whether such a gourse of action was even pxactinabia poswible. (3) 'that the 'Mingarco wan stepped tn a position totally unguitable for floating a line to the'Werlin'and no effort was made to steam ahead or astern when it was seen that she waa drifting to- warda the' yerlin' faster than did the wag buoy with a line attached. This seems to me the oritical contention for the appellant. Tao! Hinderoo ~ waa not, as I read the finding of the learned judge, placed in a position wnaguitadle for floating a line to thd Yeriin: The line however attached to the buoy behaved in a manner wholly napartet and floated under the countes of the Mindaroo in close proximity to irs propeller. The sft movement of daw Av learned judge thought¥émat Opélier, #iApk involved the possib Ality of its being fouled by the rind aah e EEX Gerous course of action for both vessels, eod Gonsequentip(iii' tne \yinasroe "gas not, in the oir ounstances, in fault in omitting to go ahead or aatern. More evidence 'by competent seamem on thia point would have greatly aseisted aud enlight- ened the fourt, but as the evidence stande I oannot see wy way to dissent ftom the finding of the learned judge. Other operations may also have bean possible but the appellant ta bound by the acta of negligence on which he Telied and the manner in whiogh he framed his case.