Calcutta High Court
The Board Of Trustees Of The Port Of ... vs The Lowland Tanker Co. Ltd. & Anr. on 9 October, 1991
Equivalent citations: (1999)2CALLT364(HC)
JUDGMENT A. M Sinha, J.
1. This appeal by the Plaintiff is against the Judgment and decree dated 19th September, 1979, passed by a learned single Judge of this court in Admiralty Suit No. 6 of 1973.
2. This case arises out of Collision which took place in the River Hooghly between the vessel "Border Terrier" owned by the respondent No. 1 and the Tug Agnijoy (hereinafter referred to as the Tug owned by the appellant. As a result of the said collision the tug sank and eight crew members of the Tug lost their lives. The appellant filed a suit in the Admiralty Jurisdiction of this court for damages against the defendant No. 1 as the owner of the "Border Terrier" (hereinafter referred to as "the Tanker"). The said collision took place on 28th May 1972. The Thanker had arrived at Budge Budge in charge of a river pilit earlier on the date, that is, 28th May 1972 and had anchored at a distance of about a quarter of a mile down the river from No.1 Jetty of Budge Budge.
3. At about 15.18 hours, the Tanker which was to be berthed at Jetty No. 8 at Budge Budge commenced weighing anchors which were up by 15.24 hours. At about that time the Tug with a harbour pilot on board came alongside the Tanker off her No. 7 Cargo tank on the star board side. Both the vessels started to proceed up the river in abb tide. There was an exchange of pilots.
4. Thereafter, the Tug cast off the Tanker and sheared off to the star board until she was about 50-60 ft. off the Tanker on the latter's star board side. At 15.26 hours the engines of the Tanker were put to half ahead. The Tug and the Tanker proceeded on the parallel course. The Tanker was not less than 250 ft. abeam another Tanker named "Esso Port Dlckson" which at that time and was being berthed at Jetty No. 1 At about 15.30 hours, the stem of the Tanker collided with the Port quarter of the Tug. The Tug swung round the stem of the Tanker and sank on the port side and the latter Immediately thereafter.
5. The suit was filed by the appellant against the respondent No.1 and the National and Grindlays Bank Ltd. as defendant Nos.l and 2 claiming, inter alia, a decree for Rs. 90.73,572. 25, Interest costs and other reliefs. National and Grindlays Bank issued a letter of guarantee undertaking inter alia to pay a sum as might be determined to be the legal liability of the respondent No.1 arising out of the collision either by a court of competent Jurisdiction or as might be mutually and amicably agreed between the parties, limited to Rs. 60,00,000/- in consideration of the appellant's refraining from arresting the Tanker.
6. Lay out of the area where the said collision took place as also the point of collision will appear from the plan exhibit "C" at page 751 of the paper book. The said plan Indicates the position of the Thanker at her point of anchorage from where the vessel was scheduled to go to Jetty No. 8 with as Assistant Harbour Master in charge.
7. It is alleged in the plaint that the owners of the Tanker were negligent in the manner as follows :--
(a) They failed to keep any or a good look out:
(b) They failed to keep the Tanker sufficiently to the port side of the navigational channel:
(c) They failed to give a clear and safe passage to the Tug on the starboard side;
(d) They failed to port the wheel of the Tanker in due time sufficiently or at all to avoid the collision:
(e) They failed to keep the Tanker under proper or any control;
(f) They failed to indicate their manoeuvres with appropriate or any sound signal; and
(g) They knew fully well that with the momentum that the Tanker had any Impact with the Tug would be absolutely fatal to the latter.
8. The plaintiff appellant has claimed damages for total loss of the Tug with all stores, fuel and lubricants on board for expenses to be incurred for locating the wreck as well as to obtain technical data, for expenses to be Incurred in future for survey and under water operations to ascertain every shift in the position of the wreck for loss of earning till replacement of the Tug which was reasonably expected to take one year from the date of filing of the suit and also expenses to be Incurred for retaining the surviving screw of the Tug now became surplus.
9. This plaint was amended on 20th December 1976 to the effect that Board of Trustees of the Port of Calcutta to be substituted as the plaintiff in the suit in place and stead of Commissioners of the Port of Calcutta and the same of the 2nd defendant as appearing in the cause title of the plaint was also changed to Grindlays Bank Ltd.
10. Again the plaint was amended on 11th March, 1977 after the evidence was closed on both-sides and even the argument on behalf of the defendant No. 1 had been concluded before the trail court. By this amendment the plaintiffs alleged, inter alia;
(a) After the Tug pulled away from the Tanker and was between 50 to 60 ft. on the latter's starboard side, she increased her speed to full ahead and moving in parallel course went past and ahead of the tanker.
(b) Moving full ahead as aforesaid the Tug after reaching the outer floor buoy of the Jetty No.1 and passing the same at a close distance on her starboard but before actually going past allowed down to communicate a message to the harbour pilot on board the said "Esso Port Dlckson".
(c) The Tanker did not slow down her speed of half ahead at which she had been going since 15.26 hrs. As a result when off the flood buoy of the Jetty No. 1 the Tanker started gaining on and overtaking the Tug.
(d). At 15-30 hrs. when the tug was abreast of and ahead of the Tanker but was not completely past her, the collision took place.
11. The written statement filed on behalf of the defendant No. 1 the respondent No.1 herein discloses the case as follows :--
On 28th May 1972 the Tanker had anchored at a distance of 1500 to 200 ft. down the river from the Jetty No.1 at Budge Budge. At about 15.18 hrs. when the Tug was seen approaching the Tanker commenced weighing. The Tug was receive alongside the boarding station near the No.7 starboard side tank and at about 15.24 hrs. the engines of the Tanker were put to slow ahead. The berthing master then boarded the Tanker while the river pilot disembarked and boarded the Tug. The Tug then cast off the Tanker and shearing of to starboard. Until she was about 50 to 60 ft. off. Proceeded quickly ahead to overtake the tanker keeping parallel to the letter's course.
12. At about 15.26 hrs. after the Tug got clear the engines of the Tanker were put to half ahead. At that time the Tanker was 300 ft. ahead the "Esso Port Dickson" berthing at the Jetty No.1. Thereafter it was noticed that the Tug was altering her course rapidly to her port as if to go across the head of the Tanker in the manner which would place the Tug in great danger of colliding with the Tanker. Immediately this was realised the engines of the Tanker were rung to stop and almost at once was put to full astern. A contract nevertheless tool place between the port side of the Tug with the stem plate of the Tanker at about 15.30 hrs.
13. It is alleged by the defendant No.1 that the collision and the resulting loss of the Tug was caused solely by the negligence of those on board the Tug as follows :--
(a) They failed to keep any or a good look out;
(b) They failed to keep the tug under any or proper control;
(c) They wrongfully altered the course or the Tug to port across the head of the Tanker;
(d) They failed to take into account that the said turn to port would open the starboard side of the Tug to the strong ebb tide and place her in danger;
(e) They failed and neglected to navigate the Tug in inland steam vessel, so as to keep free the navigable channel required by the Tanker and thus failed to comply with Rule 45 of the Port Rule;
(f) They failed to keep the Tug an overtaking vessel out of the way or the Tanker and thus failed to comply with Rule 24 of the International Collision Rules;
(g) They failed to take any ready positive action to avoid crossing a head or the Tanker and thus failed to comply with Rule 22 of the International Collision Rules;
(h) They failed to keep the Tug to the Starboard side of the fair way and thus failed to comply with Rule 25 of the International Colllsslon Rules;
(i) They failed to Indicate their intention to alter the Course of the Rug to her port by appropriate sound signals and thus Contravened Rule 28 of the International Collisions Rules; and
(j) They failed to take any action to slacken the Tug's speed or to stop or reverse and thus contravened Rule 23 of the International Collision Rules.
14. The defendant No.1 denied that there was any negligence on the part of the defendant No. 1 and the basis on which the damages have been claimed by the plaintiff has also been disputed.
15. It is the case of the defendant No.1 that the Tanker was at all material times compulsorily under the navigational control and pilotage of the herlhlng master who was a "duly authorised officer" under Rule 5 of the Calcutta Port Rules and as such the defendant No.1 was not liable for negligence, if any, in of the defendant No. 1 and as such the liability of the defendant No. 1 could not exceed the limits set by under section 352 of the Merchant Shipping Act, 1958 as it stood prior to its amendment by the Merchant Shipping Amendment Act, 1970.
16. Consequent to the amendment of the plaint on 11th March 1977 an additional written statement has been filed on behalf of the defendant No.1. It is denied in this written statement that the Tug had at anytime after having cast off from the Tanker had at any time overtaken or went past ahed of the Tanker. It is also denied that the Tanker was at any time overtaking the vessel.
17. On the Issue as to the place of collision the learned trial Judge found that there was no evidence forthcoming from the plaintiff though several maps prepared by the plaintiff were exhibited. On the scrutiny of the plan's the learned trial Judge found that, at the distance covered by the Tanker in her voyage from the point of anchorage to the point of collision indicated about 2700 ft. The point of collision also showed that the collision took place at a distance of about 300 ft. from the vessel "Esso Port Diskson". The learned trial Judge further found that the distance from the point of collision from the line of the buoys of the No.1 Jutty appeared to be about 100 ft.
18. The learned trial Judge was, therefore unable to accept the case of the plaintiff that the collision took place when the Tug was at a distnace of 30 to 40 ft. from the flood buoy of the Jetty No. 1.
19. On the issue of overtaking the learned trial Judge noted that the case in the original plaint was that at about 15.30 hours Immediately before the collision the Tug was abreast of and ahead of the Tanker but had no completely passed her. The learned trial Judge noted that the case in the plaint after amendment was that the Tug went past and ahead of the Tanker. While passing the flood buoy of No. 1 Jetty at a close distance the Tug slowed down to communicate a message to the "Esso Port Dickson". The Tanker did not slow down and started overtaking the Tug near the flood buoy. At 15.30 hours when the Tug was abreast of and ahead to the Tanker but was not completely past the collision occured.
20. The learned Judge found that this case sought to be made out after the amendment was never put clearly to the witnesses of the defendant No. 1 Examining the evidence on the point, the learned Judge found that the plaintiff was unable to make out any case that at the relevant time the Tanker was overtaking the Tug. The learned trial Judge also found that the case that the Tug had over taken and past the Tanker as alleged by the plaintiff was an after thought and was made only when the plaintiff found Itself unable to make out a case of negligence of the defendant No. 1 on their own evidence. The learned Judge also held that his contention of the defendant No. 1 did not appear to be without substance.
21. On the issue as to deviation from the course, the question before the learned trial Judge was whether the Tanker in her voyage from the point of collisslon deviated from her normal course. The learned trial Judge found that the case of the plaintiff that the Collision was caused by deviation from the course of the Tanker by way of steady veering or by sudden swing or swings towards starboard had not been established. The learned Judge further found that the plaintiffs case that the Tanker followed a course steadily veering towards the starboard was never put clearly to any of the witnesses of the defendant No. 1.
22. On the issue of absence of look-out in the Tanker, the learned Judge found that the plaintiff did not adduce any evidence to show the exact placing and position of the anchorage of "Esso Port Dickson" which would have established how further the Tug could have proceeded towards starboard safely. The learned judge also did not accept the plaintiffs case that the Tug was embrassed or did not have any space towards the starboard for her manoeuvre. The learned Judge also found that the Engineer and the Master of the Tug both admitted that the Tug was much more manoeuvreable than the Tanker. The Tug was a smaller vessel with a prowerful engine and two propellers and there was no reason why the Tug put Itself in the position of an embarrassed vessel when it was known that the Tanker, a sea going vessel was moving in the navigational channel from Jetty No. 1 to Jetty No.8.
23. On the Issue of failure to take corrective action, the issue before the learned trial Judge was whether the person in charge of the Tanker failed to appreciate the situation when it turned critical and futher failed to take any corrective action. It was suggested on behalf of the plaintiff before the learned trial Judge that if such ocrrective action had been taken the accident could have been avoided and in any event the damage could be minimised.
24. Referring to the recording of manoeuvre in the Bridge Engine Movement Book tendered in evidence the learnd Judge observed that it could not be said that no corrective action was attempted or taken by the Tanker. The learned judge also observed that the time available for taking such corrective action was only 30 seconds and in the circumstances it could not be said that the Tanker was in a position to act quicker than she did.
25. The learned trial Judge finally concluded that on consideration of the facts and circumstances as brought out in the evidence the plaintiff had failed to prove any postive act on the part of the tanker at the relevant and crucial time, i.e. the between 15.28 hrs. and 15.30 hrs. on the 28th May 1972 which could be held to be negligent. The learend Judge also found that the allegation that the Tanker was overtaking the Tug and that in so doing the Tanker veered or swung towards starboard had not been proved. Similarly according to the learned trial Judge the allegation of negligence or carelessness or non-action or non-feasance on the part of the Tanker viz. failure to post any look out or its failure to take corrective action prior to the collision also remained unproved.
26. Accordingly, the suit failed.
27. The controversy is as to the respective course taken by the Tug and the Tanker and who is responsible for the collision. The allegation of the appellant is that the Tanker moved away from her course and turned to the right to starboard and went and hit the Tug. The respondent No. 1 on the other has contended that Tug had suddenly veered to port and had come across the bow of the Tanker leaving no time for the Tanker to avoid the inevitable collision. It is contended by the respondent No.1 that Exhibit 'B' at page 758 of the paper book a drawing produced by the plaintiff-appellant, supports the case of the respondent No.1. The learned Judge dismissing the suit held, inter alia that the collision was caused solely by the negligence of the Tug. The learned Judge also held that it was established in evidence that the Tanker was proceeding at a speed, on a more or less straight course. On the other hand the Tug which was in the process of overtaking the Tanker did not maintain either a steady speed or a steady course and that is how the collision was caused by the negligence of the Tug.
28. Certain facts emerge from the instant case which are not so disputed. There is no dispute as to the position of the Tanker when the change of pilots took place, it may be mentioned here that the Harbour pilot one Mr. Suri of the appellant boarded the Tanker at about 15.26 hrs. On 28th May 1972 the dale of collision as under the Rules the Tanker had to be under compulsory pilotage of the appellant from the point of anchorage. The change of pilots took place with the Tug on the starboard side of the Tanker. The Tug was heading for Jetty No.2 and the Tanker was to go to Jetty No.8. The Tug cast off form the Tankar and 'took a course parallel to that of the Tanker, and both ware moving parallel to the Bank. The Vessel "BSSO PORT DIXON" was anchored at Jetty No.1. The point of collision between the Tug and the Tanker occured at a place vertically aligned to Jetty No.1 as would appear from the Sketch. The said Capt Suri was in charge of the nevigallon of the Tanker for taking her to Jetty No.8 under the compulsory pilotage under Rule 5 of Calcutta "Port Rules. The Tug was moving faster than the Tanker. Change of pilot took place at 15.26 hours while the collision took place at 15.30 hours. The Tug being a smaller vessel as compared to the Tanker was much move manoeuvrable than the Tanker.
29. The appellant has alleged that the collision took place near flood buoys of the Jetty No.1 where the vessel "Esso Port Dickson" was berthed at a distance approximately of 30 to 40 feet from "Esso Port Dickson". The respondent No. 1 has however contendent that this collision took place approximately 300 feet from "Esso Port Dickson". It is claimed by the respondent No.1 that the witness of the defendant (Morris) plaintiffs witnesses Mukherjee and Nausher All Confirmed this case of the defendant. It is submitted by the respondent No.1. that the Tug cut across the path of the Tanker and that was the cause of collision.
30. It was the evidence of Sparkes, the Chief Officer of the Tanker and also the evidence of Edke, called by the appellant who was on board the Tanker, that the Tug deliberately and all on a sudden took a 45 degree turn to port, and came in front and across the bow of the vessel and got drowned. This 45 degree turn took about 30 seconds.
31. The learned Judge accepted the period of time as 30 seconds. We do not think that the learned Judge was wrong in accepting this. It is, however, contended on behalf of the appellant that there is some divergence of evidence on this aspect. The appellant contends that according to sparkes it is 30 seconds and according to edke, 35 to 45 seconds. It is the submission of the appellant such divergence indicate that it is not a split second accident as suggested by the respondent No. 1. In our view assuming there is some divergence as Indicated, this is not sufficiant to alter the finding of the learned Judge on this point.
32. As would appear from the naratlon of facts on evidence, the Tanker was moving slow ahead and was preceding parallel to the southern bank of the river on a normal course to her destination viz. Jetty No. 8 By 15.27 hrs. the Tug was clear off the Tanker on the starboard side. The Tanker continued on the same course with her engine half ahead and Tug commenced to overtake the Tanker on her starboard maintaining a distance of 40 ft. At about 15.29 hrs. the Tug angled about 10 degrees to the port in the process of overtaking the Tanker, At 15.30 hrs. where the collision look place the Tug had altered her course by 45 degrees but the Tanker was still proceeding in her course. As a result, the Tug sank after the collision.
33. The learned Judge held that the location of the point of collision by defendant's witness Morris had not been challenged. The learned Judge also held that Morris referring to the Map also indicated the point of anchorage which evidence as to location of collision and point of anchorage was not contradicted by any of the witnesses of the plaintiff including Edke. The learned Judge on the evidence found that the collision look place at a distance of about 300 ft. from the Vessel Esso Port Dickson. The learned Judge rejected the plaintiffs case that collision took place when the Tug was at a dislance of 30 to 40 ft. from the flood buoy Jelly No. 1.
34. On the question of overtaking, the learned Judge rejected the plaintiffs case that the Tanker was overtaking the Tug at the relevant time. The case of the plaintiff that the Tug went past and ahead of the Tanker while passing the flood buoy of No. 1 Jetty at a close dislance, the Tug slowed down to communicate a message to "Esso Porl Dickson". The Tanker did not slow down and started overtaking the Tug and al 15.30 hrs. when the Tug was abreast of and ahead of the Tanker but was not completely past the collision occured. We think that the learned Judge rightly rejected this case of the plaintiff as sought to be introduced by the plaintiff by amending the plaint, first on ground that this case was never put clearly lo the defendant's witnesses and secondly, evidence of the plalnllffs witnesses on the point was contradictory as has been analysed by the learned Judge. We have not been shown any convincing evidence on record on the basis of which we can lake a different view.
35. On the question whether the Tanker in her voyage from the point of collision deviated from her normal course, the learned Judge noticed that in the particulars of negligence set out in the plaint ther was no allegation that the Tanker had deviated from her original course. All that was pleaded tn the plaint that the Tanker failed to keep sufficiently to the port side of the navigable channel and it was necessary for her to do so because of the presence of the Tug as also the vassel "Esso Port Dickson". The laarned Judge held that the case of the plaintiff that the collision was caused by deviation of the course by Tanker in steadily veering towards starboard had not been established.
36. At the trial the plaintiff suggested to the witnesses of the defendant No. 1 that there was no look out on board the Tanker at or about the time the collision look place. The learned Judge was of the view that the evidence adduced on behalf of the defendant No. 1 was contrary to the case of the plaintiff. It was on evidence, that between 15.26 hours and 15.30 hours on 28th May 1978 the Harbour Pilot, the Master and third Engineer were on the bridge of the Tanker, when normally a look out was posted. The Chief Engineer was posted on forecastle of the vessel the Tug had been noticed by many persons on board, ft was found on evidence by the learned Judge that Morris and Sparkes had been watching the Tug when it deviated from its course and angled towards port. The learned Judge found that Sparkes saw the entire manoeuvre which resulted in the collision. 'It was observed by the learned Judge that the collision occured in board on day light when visibility was absolutely clear. The learned Judge on the evidence held that there was sufficient look out in the Tanker as was necessary in the circumstances.
37. It has been contended on behalf of the appellant there was no assigned look out nor was anyone on board the ship watching out for the Tug or any other object of looking. The appellant contends that there many have been look out from port side but not all from the starboard side of the Tanker and it is on evidence that there was no obstruction from the starboard side. The appellant also submits that there was proper look out from the Tug but for the negligence of the crew of the Tanker the collision occured. It is also submitted that had there been a proper look out from the Tanker, the collision could have been avoided. We do not accept this contention of the appellant. It appears to be established on evidence that the Tug changed its course and angled towards port. The Tug was proceeding at a high speed and moving in close proximity of the Tanker. It is also on evidence that the Tug in the process slowed down to communicate a message to "Esso Port Dickson" through a loud halter. These is no clear evidence from the plaintiffs side whether there was any look out from Tug on the port side. It is that the Tug at the material time while communicating the message went out of control and moved suddenly on the port side. Further, the Tug being a more menoeuvrable vessel, could avoid the collision had there been a look out from the Tug on the port side.
38. On the question of look out, the appellant has cited two decisions, British Confidence reported in 1951(2) Lloyd's Reports 615 and the Mode reported in 1954(2) Lloyd's Reports 26. In both the cases, collision took place in the night. In the British Confidence principle enunciated is that look out should be posted forward and some such action should be there in the lest few seconds before the collision in order to avoid the collision. It has been found by the learned Judge, and we also think so that there was proper posting of look out forward from the Tanker.
39. The appellant has next contended that the Tanker put the Tug in peril, and the crew of the Tanker did not take necessary corrective action to avoid the collision. The suggestion on behalf of appellant to the witnesses of the defendant No. 1 is that the angle of collision was about 45 degree and the Tag would take at least 30 seconds to turn 45 degree to place herself before the stern of the Tanker. Therefore, if the Tanker had taken corrective action by staffing the engine or by using sound signals the moment the Tanker saw the Tug in its vicinity the collision could have been avoided or that the impact of the collision would have been less. The learned Judge noted the evidence of Nelson the third officer who deposed that when the noticed that the Tug was trying to gross the Tanker from the starboard to the port, the pilot ordered the Tanker's engineers first to slow ahead and immediately thereafter to stop. The learned Judge also found that the manoeuvres were recorded tin the Birdge Engine Movement. The learned Judge on consideration of the evidence on the point held, and in our view rightly, that the time available for taking such corrective action was only 30 seconds and in the circumstances it cannot be said that the Tanker was in a position to act quicker than she did. It also appears on evidence that there was a space of 30 to 40 ft. between the Tug and the flood buoy at the material time. But there was no evidence that this space was not free or that if was not possible for the Tug to proceed safety through her course.
40. The learned Judge on the evidence on record finally concluded that the appellant had failed to prove any positive act on the part of the Tanker at the Tanker at the relevant time I.e. on the date of collision, 28th May 1972 which could be held as negligent. The learned Judge found that the plaintiffs allegation that the Tanker was overtaking the Tug and that in so doing the Tanker veered or swung towards starboard had not been proved. The learned Judge also concluded that the Tug was in the process of overtaking the Tanker and while so the Tug changed her speed from full ahead to half ahead and she changed her course to go near the Jetty No.1. By changing her speed to communicate the message to 'Esso Port Dlckson" and by changing her ocurse the Tug brought herself in close and dangerous proximity to the Tanker.
41. We are in agreement with the above conclusions reached by the learned trial Judge. It appears that the entire, fateful journal resulting in the collision was four minute duration 15.26 hours to 15.30 hours. It is the fact as borne out by the evidence adduced before the trial court that the Tanker and the Tug were took close to each other, and a time of 30 seconds was available to avoid the collision. It is also a fact that at the material time the Tug took a turn of 45 degree all on a sudden to the Port side and came in front of the Tanker and got drowned. Now the question is whether it is due to fault or negligence on the part of the Tanker in not moving away to port side and keep away from the Tug. as suggested on behalf of appellant. The first respondent's case is that the Tug had suddenly veered to the portslde and had come across the bow of the Tanker leaving her no time to avoid the collision. As indicated above, this veering round of Tug by taking 45 degree and thus coming on the way of the Tanker has been established on evidence at the trial of the suit. As found by the trial court and we agree with such finding, that the plaintiff has failed to prove that the Tanker moved away from her course and turned to the right to star board and hit the tug.
42. It is the evidence on behalf of defendant No. 1 that the Tug cut across the path of the Tanker. There has not been any contrary evidence to this. The fact that the Tanker never changed its course has not been Impeached. The finding of the trial court that the Tug suddenly altered its course and came across the bow of the Tanker and also that the Tug was overtaking the Tanker and at the time of collision had Just gone ahead of the Tanker but had not completely overtaken the Tanker has been fully supported by evidence on record. Further, in our view the appellant had failed entirely to prove negligence on the part of the Tanker.
43. We, therefore, entirely agree with the conclusions arrived at by the learned trial Judge.
44. We may deal with another contention of the respondent No. 1 under the Rules of Calcutta Port, Rule 5, the Tanker was under compulsory pilotage of the appellant's officers, and the Tanker was under the nevlgational control of the appellant's officers. It, is therefore, the respondent's contention that during this compulsory pilotage if anything happens, the respondent No. 1 cannot be blamed.
45. It has, however, been contended on behalf of the appellant that under sub-section (2) of section 31 of the Indian Ports Act, 1908, the negligence of a pilot or Harbour Master or Assistant Harbour Master placed on board a vessel under compulsion would nevertheless be regarded in law as the negligence of the owners or the Master of the vessel. It has also been submitted by the appellant that neither the bye-laws nor the port trust Rules can give any measure of immunity to the Master or the owner while the slip in question is under navigational control of the Port Officer. We need not go into this controversy and express any opinion since in the Instant case the appellant has failed to prove any negligence on the part of the owner or the Master of the Tanker. In our view, the appellant has failed to establish their case that by reason of the negligence of the Tanker the Tug was place in a situation of extreme peril, and for this the ship has to be blamed. The appellant sought to place reliance the Bye Well Castle reported in 4 Asplnal Maritime Cases 202 to contend that a slip has no right, after by its misconduct putting another ship into a situation of extreme peril to charge that other ship with misconduct or contributory negligence. This case in our view has no application to the facts of the instant case.
46. The appellant has also argued in this appeal on question of limitation of liability by the respondents, and quantification of damages. The appellant has in this connection referred to sections 352 and 352B of the Merchant Shipping Act. 1958. The Issue before the learned trial Judge was the collision caused solely by the fault of the Border Terrier as alleged by the plaintiff or solely by the fault of the Agnijoy as alleged by the defendant No. 1 or were both vessels to blame for the collision"?. The learned trial Judge held that the collision was not caused due to the fault of the Tanker. It is not established that the Tanker was in any way to be blamed for the collision. We agree with this finding of the learned trial Judge. Therefore, there is no scope for any determination of the question of liability or the quantification of damages.
47. In the result, we affirm the Judgment and the degree dated 19th September 1979, made by the learned trial Judge. The appeal fails and is hereby dismissed. There will be no order as to costs.
Learned counsel for the appellant asks for stay. There will be stay of operation of this Judgment till 25th November, 1991.
A.M. Sinha. J.
48. I agree.
49. Appeal dismissed