States Steamship Co v. Compania Naviera Tongjae Sa

HCAJ000008/1966

IN THE SUPREME COURT OF HONG KONG

ADMIRALTY JURISDICTION

ACTION NO.4 OF 1965

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IN THE SUPREME COURT OF HONG KONG

ADMIRALTY JURISDICTION

ACTION NO.8 OF 1966

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Coram: Rigby, S.P.J. in Court.

Date of Judgment: 19 April 1969

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JUDGMENT

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On the 5th of September 1964, Typhoon Ruby struck Hong Kong with full fury. Some measure of the violence of the storm can be gauged from the official report, produced in evidence as Exhibit P.52, of the Marine Department of the Government of Hong Kong, which stated that of the 82 ocean-going vessels then in port, 12 broke adrift from Government moorings due to failure of their own gear, 11 other vessels dragged their anchors or otherwise moved from their original positions, and 6 collisions were reported in the harbour. The typhoon was at its greatest violence during the hours of 1100 and 1600 hours (Hong Kong Summer Time) and during that period surface wind speeds of up to 60 knots were recorded at the Royal Observatory with maximum gusts of up to 122 knots.

2.Moored at Buoy B.10, south of Stonecutters Island, was the s.s. "DORAR", a cargo vessel of 3,389 gross registered tonnage, and registered under the Panamanian flag. The DORAR was at all material times "a dead ship", part of her main engines and boilers being then immobilised and under repair. Moreover, Buoy B.10, to which she was moored, was not a special typhoon mooring. She was moored to the buoy by her starboard cable which was paid out to about 3 1/2 shackles in the water. In addition, her port anchor was down and the cable attached to it was paid out to about 2 1/2 shackles in the water. During the course of the morning, wind speeds increased considerably in velocity, and the Captain of the DORAR paid out more cable on both port and starboard sides. However, shortly before 1300 hours the DORAR's starboard cable to the buoy parted and she started to drag in a south-westerly direction. During the course of so dragging, and at approximately 1300 hours, the DORAR came into collision with the motor vessel "OCEAN TRAMP", a cargo vessel of 6,185 gross registered tonnage. The OCEAN TRAMP was moored to Buoy A.11, a typhoon mooring. There is a conflict of evidence as to whether the DORAR TRAMP. However, I am fully satisfied on the evidence that the DORAR not only drifted towards the OCEAN TRAMP, broadside on with her starboard side towards the OCEAN TRAMP, but that she actually came into collision with the OCEAN TRAMP, the starboard quarter of the DORAR striking the stem of the OCEAN TRAMP. The DORAR then drifted, stern on, down the starboard said of the OCEAN TRAMP and passed quickly out of sight. Despite efforts to stop her dragging her anchor by attaching the remaining part of the starboard chain to the starboard anchor, the DORAR continued to drag and shortly after 1430 hours finally foundered on the rocks of Kau Yi Chau Island and sank with the loss of 9 lives, the Captain himself being rescued, clinging to the uppermost section of the foremast, by a tug at about 1930 hours.

3.At all material times the OCEAN TRAMP was also "a dead ship", her engines having been part dismantled for running survey and repair and not yet re-assembled and it was, of course, for that very reason that she was moored to a typhoon buoy, A.11. She was moored to the buoy by her port cable, her starboard anchor also being dropped and held by the starboard cable. During the morning it was apparent that the ship had considerable difficulty with her cable attached to the buoy but eventually, with the aid of her starboard anchor and cable, the ship was held with 8 shackles on her port cable and 4 on her starboard. Shortly after she had been struck by the DORAR (i.e. at 1300 hours) the wind veered and increased in velocity and at 1420 hours the port cable to the buoy parted, breaking at the mouth of the hawsepipe. The starboard anchor failed to hold the vessel and she commenced to drag north-westwards through the harbour and, within a matter of a few minutes at most, she came into collision with a Japanese vessel, the "KUNEKAWA MARU" which was moored at Buoy A.13, the OCEAN TRAMP's port bow striking the other vessel's starboard bow and parting her mooring cable to the buoy. However, the KUNEKAWA MARU, by the use of her engines, manoeuvred clear and out of further trouble. The OCEAN TRAMP then continued to drag, broadside on, a matter of approximately 2 ship's lengths towards the s.s. "ILLINOIS" which was moored at Buoy A.14, striking with her stem the ILLINOIS's starboard bow and starboard side; the OCEAN TRAMP's starboard cable - and finally the anchor - meanwhile overriding the ILLINOIS's starboard mooring cable to its buoy, causing it to part from the buoy, and the ILLINOIS herself then fell off from the wind and commenced to drag with one shackle on her port cable only. Subsequently, damage was caused to the port-side of the ILLINOIS by further contact with the stem of the OCEAN TRAMP. There was a conflict of evidence as to whether this was due to the ILLINOIS drifting on to the OCEAN TRAMP or whether the OCEAN TRAMP, having dragged past the stern of the ILLINOIS, came up again on her port-side and again drifted on to, and struck, the ILLINOIS. Subsequently the ILLINOIS, by the use of her engines and rudder, was able to manoeuvre clear of further trouble. The OCEAN TRAMP continued to drag in a northerly direction close to Ching Yi Island and towards Rambler Channel. Eventually, with the abatement of the typhoon the vessel was brought up by, and held by, her starboard anchor. So much for a very brief outline of the salient facts giving rise to these proceedings.

4.The incident occurred on the 5th of September, 1964. On the 6th of April, 1965, the owners of the s.s. ILLINOIS instituted proceedings in rem (Action No.4 of 1965) against the owners of the m/v OCEAN TRAMP as first defendants, and the owners of the s.s. DORAR as second defendants, claiming compensation for the damage which the s.s. ILLINOIS had sustained. The writ was served on the OCEAN TRAMP on the 19th of August. It is pertinent to observe that the affidavit filed in support of that writ made reference only to the collision occurring between the s.s. ILLINOIS and OCEAN TRAMP, such collision being alleged to be due to the "fault and negligence of the persons navigating and controlling the said vessel, OCEAN TRAMP".

5.On the 23rd of August, 1965, the owners of the OCEAN TRAMP entered appearance, and on the 14th September a Preliminary Act was filed on behalf of the plaintiffs in accordance with Rule 53 of the then existing Supreme Court (Admiralty Procedure) Rules. The s.s. DORAR lying then at the bottom of the sea and it being therefore impossible to effect service of the writ upon her in the usual manner, by affixing the writ to her mast, a summons for directions was taken out on the 14th of September, 1965, as a result of which, on the 27th of September, service of the writ against the DORAR was effected upon a Mr. LI Shek-tong alias Frederick Li, the Managing Director of Frederick Shipping Corporation, being the purported owners of the DORAR. The next relevant steps in the proceedings were that in September, 1966, just about a year later, the action in rem against the owners of the s.s. DORAR was very sensibly and properly discontinued and a fresh action (No.8 of 1966) was instituted by States Steamship Company, the owners of s.s. ILLINOIS, against the Compania Naviera Tonjae S.A., a company managed and controlled by the said LI Shek-tong alias Frederick Li, as Governing Director. The said LI Shek-tong was said to be the agent of the Compania Naviera Tonjae, S.A., carrying on their business as their shipping agent under the name of Frederick Shipping Corporation and in fact holding all the shares issued under the name of the said Compania Naviera Tonjae, S.A.

As a result of a summons in chambers an order was then made on the 14th February, 1967, for the consolidation of the two actions, No.4 of 1965 and No.8 of 1966. It is relevant to observe that in the affidavit in support of that application for consolidation the plaintiffs' solicitor avers that "the evidence which will be led at the trial on behalf of the plaintiffs in both A.J. No.4 of 1965 and A.J. No.8 of 1966 will show that the s.s. ILLINOIS was struck by the m/v OCEAN TRAMP, and it remains to be determined whether or not the s.s. DORAR contributed to this collision."

6.On the 17th of March, 1967, a Preliminary Act was filed in Action No.4 of 1965 on behalf of the OCEAN TRAMP.

On the 17th of March, 1967, a Preliminary Act was filed in Action No.8 of 1966 on behalf of the ILLINOIS, and on the 28th of April, the defendants to that action filed their Preliminary Ac on behalf of the DORAR. These Preliminary Acts in both actions remained sealed until they were opened, on the 18th of June, 1968, after proceedings had closed, in the presence of the parties, under 0.75 rule 18(2) of the new Supreme Court Rules, 1967, then in force.

7.On the 29th of May the plaintiffs filed their petition in the consolidated action. It is necessary to consider that petition with some care. By paragraph 1 of the petition the plaintiffs aver that they have suffered damage by reason of a collision between their steamship ILLINOIS and the defendants' vessel OCEAN TRAMP "which was solely caused by negligent management and/or navigation of the OCEAN TRAMP by defendants or their servants or agents as hereinafter appears". By paragraph 2 they say that if it should be found that the said collision was not solely caused by the negligent management and/or navigation of the OCEAN TRAMP (which is denied), the plaintiffs say that the said collision was caused:

Paragraphs 3 to 13 aver; -

Paragraph 13 sets out particulars of the damage claimed, and in paragraph 14 the plaintiffs claim such damages, in the sum of HK$1,004,221.23, together with interest thereon.

8.On the 5th of October, 1967, the second defendants to the consolidated action filed their Answer to the petition. By paragraph 2 of their Answer they deny both the averment that the OCRAN TRAMP was moored at Buoy A.11 and that the DORAR at any time struck or collided with the OCEAN TRAMP. As to the allegation that they were in breach of statutory duty they say, by paragraph 7 of their Answer, that they were excused from complying with the statutory duties under Section 70(1) of the Merchant Shipping Ordinance, Cap.281 and the regulations made thereunder for the following reasons:-

9.On the 16th of November an Answer was filed by the first defendants on behalf of the OCEAN TRAMP.

Paragraphs 4 to 10 inclusive of that Answer are directly relevant, and it is convenient to set them out in full:

By paragraph 12 the first defendants deny that any damage was caused to the ILLINOIS; alternatively, if such damages were sustained they were not caused or contributed by any negligence on the part of the first defendants, their servants or agents. By paragraph 14 they aver that if any damage was caused to the ILLINOIS it was the "inevitable result of circumstances beyond the defendants' control as hereinbefore set out."

By paragraph 15, in the alternative they contend that "the ILLINOIS was moored too close to her buoy and had the ILLINOIS paid out more cable, the ILLINOIS could have used her engines to steam out of the path of the OCEAN TRAMP".

By paragraph 16, in the further alternative they say that if they are found to be liable they will contend that, in the circumstances pleaded, they are entitled to an indemnity and/or contribution from the owners of the DORAR and, in so far as may be necessary, they will rely on the allegations pleaded by the plaintiffs in paragraph 11 of their petition.

10.On the 29th of June, 1968, an Order was made by a Judge in Chambers setting down the Action for trial in December, to be tried by a Judge and an Assessor.

On the 18th of October, 1968, the first defendants took out a summons asking for leave to issue and serve a Third Party Notice in the Action upon the second defendants on the basis that the series of incidents that took place on the 5th of September culminating in the collisions of the OCEAN TRAMP and the ILLINOIS were directly and solely due to DORAR colliding with the OCEAN TRAMP fouling her cable to her buoy and thereby causing her to be set adrift, and that they were accordingly entitled to claim to be indemnified by the second defendants against the whole of the claim brought against them by the ILLINOIS or, alternatively, to a measure of contribution from the second defendants as against that claim. Bearing in mind that the first defendants had entered an appearance to the Action on the 23rd of August, 1965 and filed their Answer to the petition on the 4th of October, 1967, and bearing in mind, furthermore, that the plaintiffs in their petition primarily held the first defendants solely responsible for the damage done to the ILLINOIS, it is certainly a matter for critical and adverse comment that the first defendants should have waited 12 months before they thought fit to institute Third Party proceedings against the second defendants. However, leave was granted - and no doubt very properly granted - on the 19th of October to issue and serve Third Party proceedings upon the second defendants, and such notice was duly served. Upon a further summons for directions an Order was made, on the 2nd November, 1968, for pleadings to be filed as between first and second defendants. On the 9th of November the first defendants filed their statement of claim against the second defendants as Third Party in the Action, and on the 21st of November, the second defendants, as Third Party, filed their defence to that statement of claim. The statement of claim of the first defendants is largely - but not exclusively - a repetition of paragraphs 4 to 10 of their defence to the plaintiffs' claim, which paragraphs I have already quoted in full and which deal with the allegedly secure and seaworthy condition of the OCEAN TRAMP until she was struck by the DORAR and, as a consequence of such impact, her cable to her buoy was allegedly damaged and subsequently severed as a direct consequence of such impact, together with a repetition of the allegations of negligence made against the DORAR by the plaintiffs in their statement of claim which, again, I have already cited in full. So much for the pleadings. I do not find it necessary to refer to the numerous interlocutory proceedings between the parties or to the voluminous detailed interlocutories and requests for further and better particulars sought for, and obtained, prior to the trial of the Action.

11.Turning now to the evidence of this case. It is, I think, convenient to deal with the three ships in the chronological order in which they broke adrift - the DORAR, the OCEAN TRAMP, and then the ILLINOIS.

12.The first and fundamental question is whether or not it has been proved, on the balance of probabilities, that the DORAR over-rode the port cable of the ILLINOIS connecting her to the buoy and by such contact caused the damage to the cable resulting in a link of that chain breaking at the mouth of the hawse-pipe approximately one hour and forty minutes later, and causing the OCEAN TRAMP to come adrift from its mooring. Vitally important as I fully appreciate this matter is, I propose to deal with it very briefly. whilst I am fully satisfied that the DORAR did, in fact, come into collision with the stem of the OCEAN TRAMP and thereafter drift along her starboard side, I am not satisfied, on the balance of probabilities, that it has been proved either that she came into collision with the port cable of the OCEAN TRAMP or was responsible for any damage done to that cable causing it to part from its mooring. I come to this conclusion for three reasons: first and foremost is the fact that the cable did not break till one hour and forty minutes after the impact. Secondly, I am advised by my Assessor that when the cable to the buoy took charge at 11.15 a.m. and ran out to eight shackles before it could be held, very heavy and uneven stresses were imposed upon it. The cable went out in jerks, constantly jumping the gypsy as the brake held, and running out under stress when the brake failed fully to control the gypsy. The guillotine did not appear to have any restraining effect. These conditions to which Captain Evans, the master of the OCEAN TRAMP, himself testified, may well have caused severe strain on the port cable as the ship careered away from the buoy in the face of the mounting storm. Such straining would have been particularly severe on the links of the cable at the outer lip of the hawse-pipe, especially at intervals when the running cable was brought up taut between ship and buoy. Thirdly, there is the unexplained evidence of the Adjuster's Report "Exhibit P.19" dealing with the damage found on the OCEAN TRAMP after the storm. There, the entry is to be found at page 17, "Anchor chain cables strained. All anchor chain cables to be ranged out, checked and calibrated." Again, in that same Report in that part dealing with disbursements paid to Hong Kong and Whampoa Docks Limited, at page 42 thereof, is to be found the item "Straining, tightening up 370 cable studs; straightening 356 bent links ......" Mr. Mills-Owens, counsel appearing for the OCEAN TRAMP, whom, if I may say so, conducted their case with conspicuous ability and thoroughness, said that this damage related to the starboard cable. That may be so. But there is, on the other hand, unfortunately no evidence before the Court as to which of the two cables the entry relates; it may equally well refer to the port cable to the buoy.

13.Whilst it may well be that the impact caused by the DORAR colliding with the OCEAN TRAMP was the primary cause of the OCEAN TRAMP port cable breaking one hour and forty minutes later, it seems to me that that is really a matter of pure speculation and conjecture and that I would not be justified in reaching such a conclusion upon the evidence before me. where the cause of an accident is a matter of speculation and cannot be inferred from the facts found, the first requirement for establishing liability for the accident is not satisfied (Fowler v. British Railways Board, The Times, 7.2.69).

14.But in case I am wrong in failing to reach a conclusion that the impact of the DORAR upon the stem of the OCEAN TRAMP was the cause of the OCEAN TRAMP parting from its mooring it is, I think, necessary to consider whether there was evidence of negligence against the DORAR in the fact that she was, firstly, a "dead" ship at the material time and, secondly, that, as a dead ship, she was moored to a non-typhoon buoy.

15.The DORAR arrived in Hong Kong about mid-day on the 2nd of September from Indonesia, carrying a miscellaneous cargo in her holds and live pigs on her decks. After discharging part of her cargo in Hong Kong, she was due to go on to Japan with the remaining cargo for discharge at Japanese ports. Prior to arriving in Hong Kong, the DORAR's master had sent a cable (produced in evidence) from the ship to the ship's agents in Hong Kong stating that her boiler tubes required repairing and that her main condenser was leaking. Upon arrival in Hong Kong she was moored to Buoy B.10 - a non-typhoon buoy. Almost immediately the ship had tied up, the agent came on board, together with ship-repairers. The ship's main engine was dismantled; it was found that the main bearings required remetalling. The bearings were removed and returned, with the work completed between 5 and 6 p.m. on the 4th of September. It was also found that a considerable number of boiler tubes in both the central and port boilers were leaking and required replacing. Finally, many of the tubes in the main condenser were leaking and required replacing. It was estimated that the work on the boilers would take some 4 to 5 days. It would take some hours to cool down the boilers; this was done. Dismantling of the engines commenced after the ship had been secured at the buoy; the main bearings were taken ashore for remetalling that night and they were returned on the 4th of September. Examination of the main condenser started on the evening of the 2nd of September and of the boilers on the morning of the 3rd of September.

16.Neither the repairs to the boilers nor to the main condenser had been completed by the evening of the 4th of September, with the result that the ship could not get up steam for working its engines and the ship was, in consequence, a "dead" ship and at a non-typhoon buoy when the typhoon struck on the morning of the 5th of September.

17.The No.1 signal was hoisted at 6.15 a.m. on the morning of the 4th September. Evidence was given, which I accept, that the fitters working on the condenser and boilers left the ship between 12 a.m. and 2 p.m. on the 4th of September, because they feared that if they remained on board any longer they would be stranded and unable to get a boat to take them ashore.

18.The Marine Department's publication "NOTICE TO SHIPMASTERS - Typhoons in Hong Kong Waters". which was produced in evidence, containing extracts from Regulations under the Merchant Shipping Ordinance, provided that "Upon a local typhoon signal other than Nos.1 and 3 being hoisted, vessels at government buoys, not being special typhoon moorings, shall within two hours move to a typhoon anchorage or to special typhoon moorings". The ship's agent gave evidence, which I accept, that from the moment the No.1 signal was announced he made every effort to secure a tug to tow the DORAR to a typhoon buoy but that no tug was available. The shortage or non-availability of tugs throughout this period is, indeed, referred to in the Marine Department Report (Exh. P.52) on the Effect of Typhoon Ruby.

19.The master of the ship very frankly admitted in evidence that when he gave permission to the Chief Engineer to dismantle the engine and boilers for repair he knew of the existence of the tropical storm which was then 400 miles east of Basco, and according to the weather forecasts it was moving in a westerly direction and continued to move in that direction. The master said very frankly "there was no point in my waiting in port for 2 to 3 days doing nothing". The question for consideration - and it is one of considerable practical importance - is whether in these particular circumstances, with the main bearings and his engines requiring remetalling, some of his boiler tubes cracked and his main condenser leaking, the master was justified in having these repairs done and thereby taking the risk that the typhoon might hit Hong Kong waters with his ship in consequence immobilised. On the facts of this case I am of the opinion that the master's action was justified. These repairs were not of a minor or a superficial nature which could reasonably wait. Indeed, the master had cabled before the ship reached Hong Kong that these repairs were required. After discharging part of her cargo in Hong Kong the DORAR was due to continue her voyage to Japan. It seems to me that the master was justified in having these essential repairs carried out upon his arrival in Hong Kong and, to repeat his own words, "in not waiting in port for 2 or 3 days doing nothing" merely because of the possibility that what was then no more than a tropical storm some 800 miles away would develop into a typhoon which would directly hit the Colony. There is one further point. If such repairs had not been carried out the DORAR would either have remained in port during the typhoon or, alternatively, put to sea to ride out the storm at sea. In either event, having regard to the defective state of her engines, boilers and her leaking condenser, in the absence of expert evidence it is a matter for conjecture as to whether or not her engines, in the state in which they then were, would have remained effective. I am advised by my Assessor that the risk of riding the storm at sea with her engines in that condition would have been very considerable. In those circumstances, assuming that the master took a calculated risk in having his engines, boilers and condenser put in a proper state of repair, and arranging for that to be done from the very moment when he arrived in Hong Kong, it seems to me that that was a reasonable risk to take and not inconsistent with prudent seamanship.

20.In my judgment, therefore, there are no grounds for holding either that the master or the agent of the DORAR were negligent in not having the engines of the DORAR available for use at the time of the typhoon or by reason of the fact that the DORAR remained moored to non-typhoon buoy, B.10, immediately prior to, and during the duration of, the typhoon. Upon the evidence, I am fully satisfied that the remaining allegations of negligence that those responsible for the DORAR:-

have not been substantiated by the evidence.

Indeed, upon the evidence given by the master of the DORAR, which I find no reason to disbelieve and which certainly remains uncontradicted, I am satisfied that the DORAR was properly in ballast whilst riding at her mooring, that the ship was properly handled by the master when riding at her mooring before her starboard cable broke, properly handled by the master in a seamanlike manner after she had broken from her mooring, and that such efforts as could be made whilst she was adrift to avoid any collision with any other ships were, in fact, taken. It is a matter for some criticism that the master did not go direct to a typhoon buoy on arrival in Hong Kong on the 2nd September, but the matter had been arranged well in advance by his Agent and he put his desire to get repairs started before other considerations.

21.Turning now to the OCEAN TRAMP. The main complaint made against her by the plaintiffs is, first and foremost, that having had early and ample warning of the approach of Typhoon Ruby, she failed to have her engines available for immediate use during the duration of the typhoon. If her engines had been available for use it is probable that she would not have broken adrift from her mooring, and even more probable that if she had broken adrift, by the use of her engines she would have been able to manoeuvre clear of any other ships riding at their moorings. Indeed, Capt. Evans, the master of the OCEAN TRAMP agreed, in answer to a question put to him in cross-examination, that if the OCEAN TRAMP had had the use of her engines she would probably have avoided collision with the ILLINOIS. A further averment of negligence is that it is said that the OCEAN TRAMP failed to pay out more cable before the full strength of the typhoon was reached and that she failed to veer away the starboard anchor cable sufficiently once she had broken adrift from her buoy. Other allegations of negligence are that the OCEAN TRAMP was not sufficiently ballasted to ride the storm and that the master did not make use of his port anchor.

22.The OCEAN TRAMP, a cargo vessel on the Cuba-China run, arrived in Hong Kong harbour from a Chinese port in the late afternoon of the 26th of August, and was moored at Buoy A.7. She had some general cargo in her holds and a full cargo of live stock on her decks. She discharged her cargo throughout the night. The following day, the 27th of August, her decks were cleaned up and on the same day a representative of Wang Tak Engineering Company, on the instruction of the ship's agent, came on board to see what repairs were necessary to be done. In fact, a list of repairs required had been sent to the agent, from Mauritius, before the ship arrived in Hong Kong. From that list it was apparent that some of the bearings of the engine were defective and required repairing and remetalling. Repair works were carried out until the ship went into dry dock on the 1st of September for the purpose of cleaning the underwater sections of her hull.

23.The Ship's Articles of the OCEAN TRAMP were due to expire on the 31st of August and practically all the officers then serving, including the Chief Officer, the Second and Third Officers, the Chief Engineer and several Assistant Engineers and a large number of the crew, were signed off. New Articles were opened on the 1st of September and almost an entirely new complement of officers were signed on, including a new Chief Engineer, C.O. Cockburn, then aged 25, who signed on to act in the capacity of Acting Chief Engineer.

24.The OCEAN TRAMP at this time was under a four/five year continuous survey carried out by Bureau Veritas. The purpose of a continuous survey, as I understand it, constitutes a thorough and complete check of all the ship's engines, boilers, running parts etc.: carried out over a period of four/five years, parts of this Survey being done as and when convenient. Hong Kong has a justifiably high reputation in the Far East in this type of work and it was therefore practical and convenient that this Survey should be carried out during the period the OCEAN TRAMP intended to remain in Hong Kong waters. The Survey had been commenced on the 31st of August, prior to the vessel going into dry docks, and on that day, the 31st of August, various parts of the engines and boilers had been stripped and prepared for survey and examination by the Bureau Veritas' surveyors. The OCEAN TRAMP was in dock from the 31st of August to the afternoon of the 2nd of September. Whampoa Docks, where the vessel was in dry dock, did not permit independent work to be carried out on board the vessel by any other contractors whilst the ship was in their dry docks, so that the work of Wang Tak Engineering Company was necessarily suspended during this period. On the late afternoon of the 2nd of September the vessel, its engines immobilised, was towed out to Buoy A.11, a typhoon buoy. On the 3rd of September the Engine Survey by Bureau Veritas continued and was completed. The Loadline Survey was held on the 4th of September.

25.Mr. Sze-To Kwan, a Director of Wang Tak Engineering Company who were carrying out the engineering repairs required to be done, was present at the Engine Survey and, on its conclusion, he removed the pistons of the Stand-by Lubricating Oil Pump. This pump is essential for starting the ship's main engines, although it is in itself a separate piece of machinery. There are two pistons, and two rings on each piston. Mr. Sze-To Kwan had been present during the earlier part of the Survey on the 31st of August when the Stand-by Lubricating Oil Pump had been opened up, and it was then apparent that all four piston rings were broken and unserviceable and that new ones were required. Mr. Sze-To Kwan said that moulds for the making of the new piston rings were started on the 1st of September. He said that he had not taken the pistons themselves ashore on the 31st of August for the good reason that they were required to remain where they were pending the completion of the Survey. He took the pistons ashore about 1 p.m. on the 3rd of September after the completion of the Survey. He said that the pistons were required to be taken ashore for machining grooves so that the new piston rings that were to be made could be made to fit exactly so as to give the maximum efficiency to the working of the pistons. The machining of the pistons themselves was completed the same day, the 3rd of September, between 9 and 10 p.m. The making of the new piston rings, however, was a very much longer process: they were not completed until 4 a.m. on the morning of the 5th of September and they were then required to be fitted to the pistons, which took to about 8 a.m. that same morning, the 5th of September. Mr. Sze-To Kwan described in some detail the manner of making these rings, the moulds which had to be prepared and the time required for the completion of the work. It is sufficient to say at this stage that other witnesses called during the period of the trial expressed the opinion that such work would, or ought to, take a good deal less time than Mr. Sze-To Kwan estimated.

26.The real question is, however, whether, on the 3rd of September, having regard to the existence of Typhoon Ruby in the offing, the pistons themselves should ever have been taken ashore. Mr. Cockburn, the new Chief Engineer, was signed on on the 2nd of September. Remarkable though it may sound, he did not know that the pistons were missing until 11 a.m. on the morning of the 5th of September - half an hour after No.9 Storm Signal had been hoisted - and it was thereafter that he imparted this information to Capt. Evans, who was at that time wholly ignorant of the fact. Mr. Sze-To Kwan said in evidence, and there is no reason to doubt his word, that when removing the pistons he had informed the engineer then on duty, the Second Engineer, what he was doing. The Second Engineer has not been called as a witness and it would seem apparent that he did not pass on this information to Mr. Cockburn.

27.Capt. Evans said in evidence that on the 2nd of September he knew that Tropical Storm Ruby, although a very long way away, was a possible threat to Hong Kong and, indeed, that that was one of the reasons why he had had the OCEAN TRAMP towed to a typhoon buoy. The following day, the 3rd of September, as a precautionary measure, Capt. Evans said that he gave instructions to box up the main engines.

28.A great deal of evidence has been given as to the time required by the employees of the Wang Tak Engineering Company to re-assemble the main engines after parts had been taken ashore for repairs and then returned to the ship. It was said by Mr. Sze-To Kwan that in anticipation that the typhoon would not hit Hong Kong until a later time, his firm had undertaken to have all the machinery boxed up by the evening of the 5th September, and that this undertaking could have been complied with had not the typhoon come several hours earlier than expected, thereby preventing the firm's fitters from remaining on board and completing the work on the morning of the 5th. Mr. Sze-To Kwan said that on the 3rd of September, apart from the Stand-by Lubricating Oil Pump pistons, all other parts of the ship's engines which had been repaired had already been returned on board and that no item was put on board on the 4th of September. His brother, Mr. Sze-To Hon, said that all parts requiring remetalling and machining had been returned to the ship by the 4th of September with the exception of the Stand-by Lubricating Oil Pump pistons and rings. Whichever evidence is correct, I am impelled to the conclusion upon the evidence that with a greater sense of urgency the work in boxing up the main engines should have been completed before the full effect of Typhoon Ruby started to make itself felt in the morning hours of the 5th of September. There is no doubt in my mind that the Sze-To brothers, Capt. Evans, and many other persons, were deluded by the unexpected change of course and the accelerated speed of the typhoon in its approach to Hong Kong. Indeed, the unexpectedly sudden approach of the typhoon was referred to by the South China Morning Post in its leading article for Monday, the 7th of September, in the words: "...... Ruby, so innocent on the weather map the day before, will be remembered for the way she rapidly intensified and "homed" on Hong Kong". A further indication of other interests taking precedence over interest in weather conditions is shown in the matter of clearing out dunnage planks and mats from the Deep Tank. It was of course of vital importance for the safety of the ship that this tank should be filled, yet clearing out the dunnage - left "in situ" after a cargo of sugar - did not commence until 1800 hours, on the 4th September, almost 12 hours after No. 1 signal was hoisted.

29.The attitude of the Sze-To brothers, Directors of Wang Tak Engineering and Shipbuilding Company, to the possibility of the storm developing into a typhoon was, I think, illustrated by a question put to Mr. Sze-To Kwan in cross-examination and his reply thereto. I quote from my abbreviated notes. He was asked:

30.Again, Mr. Wong Ping Yue, Engineer and Marine Superintendent of the Ocean Tramping Company, who was responsible for making arrangements regarding the carrying out of repairs on board the OCEAN TRAMP, by his evidence left me with the clear impression that it was only after the No.1 signal had gone up on the 4th of September that he took any interest in expediting such repair work as was still necessary. Despite the fact that Capt. Evans was aware on the 2nd of September of the existence of the storm, albeit, still several hundred miles away, and knew that it might constitute a possible threat to Hong Kong, a Load Line Survey of the ship was carried out on the 4th of September by Bureau Veritas. In answer to a question put to him in cross-examination - and again I quote from my abbreviated notes, Mr. Wong said: "Yes, the OCEAN TRAMP had a continuous survey. Yes, if because of nearness of a typhoon we would have to re-assemble the engines, etc. before the Survey was completed, that would be a waste of the Company's money."

31.I am impelled to the conclusion that because it was generally considered - if, indeed, it was considered at all - prior to the 4th of September, that Typhoon Ruby was unlikely to strike Hong Kong and, in any event, finally approached Hong Kong at an unexpectedly fast rate, the assembly of the main engines - and, indeed, the making of the new piston rings - were not carried out at as expeditiously as they should have been.

32.Capt. Evans himself, upon his own admission, knew as early as September 2nd, that what was then a storm might constitute a threat to Hong Kong and, indeed, took precautionary steps on the 3rd of September. However, in my judgment, he failed to impart any sense of urgency into those responsible for the re-assembly of the engines. Had any such sense of urgency prevailed, it seems reasonable to assume that the pistons of the Stand-by Lubricating Oil Pump would not have been taken ashore in the afternoon of the 3rd of September without consultation between responsible persons, Capt. Evans himself, the Chief Engineer, Mr. Wong as Marine Superintendent, and the Wang Tak Directors, as to whether it was necessary to take those vital parts of the pump ashore for at least a period of two days. Such consultation would, by its very nature, have prompted enquiry into whether or not spare piston rings were available on board so that the pump could be boxed up temporarily until the storm had passed. Whether or not spare rings were in fact on board is not established by the evidence. A number of witnesses, including witnesses called for the defence, have said that it would certainly have been a prudent measure to have such piston rings on board. Documentary evidence in the form of two documents named Main and Auxiliary Engines - Spare Part List and produced as Exhs. S.1 and S.2, were produced during a very late stage in the trial. Again, it is by no means clear from those documents whether spare rings were in fact on board, although it would seem that such inferences as may be drawn from the documents indicate that there were in fact, spare rings on board at that time. However, the lack of interest shown in the fact that the pistons had gone ashore on the afternoon of the 3rd of September with no prospect of them being returned before the morning of the 5th of September indicates a very real lack of a sense of urgency amongst those responsible for the main engines. I have already commented upon the fact that it was not until 11 a.m. on the morning of the 5th of September that the Chief Engineer himself, Mr. Cockburn, realised that the pistons were missing and that Capt. Evans himself was totally unaware of this fact until he was told of the position by Mr. Cockburn. In my judgment, had a greater sense of urgency or interest in the storm prevailed the main engines, together with the new piston rings - or possibly spare - would and could have been ready by the morning of the 5th of September and available for use on the ship during the duration of the typhoon. One must have very considerable sympathy with Capt. Evans in the position in which he found himself at this particularly difficult time. He had signed on an almost entirely new crew - certainly in so far as the officers were concerned - on the 1st of November. The new Chief Engineer, a young and, I think it fair to say, relatively inexperienced officer, had joined the ship on the 2nd of September. His Chief Officer and also his First and Second Officers were also newly engaged. To my mind, the misfortune and the cause of all the trouble lay in the fact that although Capt. Evans - if one accepts his evidence, and I see no reason not to do so - appreciated on the 2nd of September the potential threat of a tropical storm hitting Hong Kong within a matter of days and, indeed, gave certain orders to prepare for such an emergency, the urgency of the situation does not appear to have been appreciated further down the chain of command - either by the Chief Engineer himself or by any of his subordinates, or by the Sze-To brothers or by Mr. Wong Ping Yue, the Engineer and Marine Superintendent. Furthermore, Capt. Evans did not take sufficient measures to ensure that his orders were implemented and the urgency of the situation appreciated. For this, Capt. Evans and the owners of the OCEAN TRAMP, must accept responsibility.

33.It was urged, with some force, that since the piston rings were being made ashore it was necessary to remove the pistons themselves and take them ashore in order to have them machined so as to fit the newly made piston rings and ensure a perfect fitting. Under normal conditions, no doubt this would have been an entirely sensible and commendable course. But evidence was given that even though new piston rings might not fit properly so as to give the maximum amount of pressure to the pistons for getting up steam, they would at least provide adequate pressure for this purpose. Furthermore, although no doubt the pistons themselves could be more quickly, efficiently and perfectly machined ashire, the evidence clearly established that it was a practicable proposition to deal with the grooving on board. In my view, and I am so advised by my Assessor, it was imprudent in such circumstances to have allowed the pistons to be taken ashore.

34.In conclusion, I am of the opinion, and I am so advised by my Assessor, that the OCEAN TRAMP (by which I mean the master of that ship) was negligent in that a sense of urgency was lacking in the carrying out of repairs and re-assembly of the ship's engines - including the making, or tracing the existence, of spare rings for the pistons for the Stand-by Lubricating Oil Pump - and as a direct consequence her engines were not in proper working order - as they should have been, for the duration of the typhoon. It was admitted by Capt. Evans - and, indeed, I find it as a fact - that if the engines had been in proper working order the collision with the ILLINOIS - and also with KUNEKAWA MARU - would have been avoided. The comment may well be made as to why the Captain of the OCEAN TRAMP should be considered negligent in having these repairs carried out and in being regarded as having a lack of sense of urgency with regard to the carrying out of those repairs, when the Captain of the DORAR has been absolved from any negligence in regard to what might be considered precisely the same state of affairs. However, in my view, their respective positions are readily distinguishable. With the exception of the replacement of the piston rings for the Stand-by Lubricating Oil Pump, it was at no time suggested that the repairs to the engines of the OCEAN TRAMP were other than normal examination and repairs required to be done as a result of the Continuous Survey carried out by Bureau Veritas. It was at no time suggested that the ship's engines would not function unless these repairs were executed. As to the new piston rings, I have indicated that having regard to the documents, spare piston rings might well have been found on board if records had been consulted or a search had been made, thereby avoiding any necessity for newly-cast piston rings to be fitted at that time. Furthermore, I am satisfied on the evidence that if a greater sense of urgency had prevailed, the piston rings could have been made in such time as to be ready at least by the evening of the 4th of September. However, in regard to the DORAR, upon the evidence, it seems to me manifest that the defective state of the ship's engines and the main boilers and leaking condenser were such that it was essentially a matter of prudence that the Captain of the DORAR, upon arrival in Hong Kong, should at once have taken steps to ensure that they were put in proper working condition. Unlike the OCEAN TRAMP, where these repairs were of a routine nature which it was convenient to have carried out in Hong Kong as a result of the continuous Survey undertaken by Bureau Veritas, in the case of the DORAR these repairs were essential requirements.

35.I turn now to consider the allegation of negligence in the handling of the ship during the typhoon itself and up to the collision with ILLINOIS. It may be convenient to state the relative times of hoisting and lowering of local storm signals during Typhoon Ruby:-

I will refer to all times as at Hong Kong standard summer time. Prior to 1100 hours one shackle only had been paid out on the port cable to the typhoon buoy. The starboard anchor, at that time, had not been lowered at all although it is apparent that No.9 signal had replaced No.7 half an hour earlier, and it was only some 40 minutes before No.10 signal - which denoted hurricane winds - was hoisted. It was only at this late stage - just after 1100 hours - that Capt. Evans decided to slack away the port cable to the buoy from one to two shackles. I am advised by my Assessor that, bearing in mind that the ship was without power on her main engines and was not fully in ballast - the deep tank being in the process of being filled - it is a matter for adverse criticism that only one shackle had up to that time been paid out on the port bow to the buoy, and for further criticism that by that time the starboard anchor had not been dropped to steady the vessel. It is a matter of even greater surprise that after the two shackles had been paid out the starboard anchor was not dropped, at least underfoot, to steady subsequent shearing of the vessel. The evidence given by Capt. Evans was that during this slacking away to two shackles the cable jumped over the gypsy several times and that wire lashings, crowbars through links, and steel wedges in the guillotine bar were positioned to give added security. Thereafter, the situation worsened. At 1115 hours the port cable took charge and commenced to jump over the gypsy and overcome the brake; the guillotine stopper proved of little effect to prevent the cable jumping and running out: the crowbars which the master had caused to be put through links of the cable were bent and dragged right through the hawse-pipe. There was a very real danger at that stage that the ship would lose its port cable altogether. I am advised that the strain on the port cable must have been very considerable at that time and that the bent links to which I have earlier referred - [and in respect of which, it is true, such evidence as there is, is consistent with it being either on the port or the starboard cable] - may well have been the bent links on the port cable. The greatest strain on the links of the cable would be particularly at the outer lip of the hawse-pipe when the cable became taut between the hawse-pipe and the buoy. It was only at this belated and alarming stage that Capt. Evans ordered the helm to be put hard to starboard, and after the vessel had sheared to starboard to the maximum amount he ordered the starboard anchor to be dropped. I am advised that there would have been very much less damaging strain on the windlass and the port cable if this manoeuvre had taken place earlier. Finally, after 8 shackleshad gone out on the port cable to the buoy and 4 shackles had been paid out on the starboard cable, the ship was held.

36.About 1300 hours a vessel, now known to be the DORAR, struck the stem of the OCEAN TRAMP and drifted down her starboard side. After the impact Capt. Evans went forward to see what damage had been done to the bow of the OCEAN TRAMP, but was unable to ascertain the nature and extent of the damage since, in order to see it, he would have had to climb outside the railing on the forecastle, a manoeuvre that was far too dangerous owing to the very considerable gale force of the typhoon at that time. Capt. Evans said that the impact caused him concern as to his moorings, both as to the port buoy and the starboard anchor because he thought that the DORAR had passed over and struck his moorings before striking the OCEAN TRAMP itself. In such circumstances he considered whether to slack out more cable to the buoy. He said, and I quote from my notes, "I couldn't heave any cable in as the strain was too much for the windlass to bear". I would again reiterate that the greatest strain on the cable would be on the link at the outer lip of the hawse-pipe - which was, in fact, the link which subsequently broke. Capt. Evans said that he considered slacking out his cable to the starboard anchor, but decided against this because he thought such a manoeuvre would put more strain on the port cable. Finally, he came to the conclusion that there was equal strain on both port and starboard cables and therefore decided that the more prudent course was to leave the meanings as they were.

Since Capt. Evans was obviously concerned about his moorings, it would have been prudent, at this stage, to consider preparing his port anchor - which was at that time hanging by a slip wire over the port side of the forecastle - for use by attaching his Insurance Wire to it. His explanation for not doing so was that it would have been a difficult thing to accomplish in the adverse conditions, although he admitted that the wire itself was available. Later, when the OCEAN TRAMP was adrift and dragging beam to the wind, he said that debris - rust and mud - was coming up with the starboard cable as it was being hove out, and, blowing with considerable violence from starboard to port, made work on the port side of the forecastle head dangerous and impracticable. I hope that I do no in justice to Capt. Evans when I say that I think this latter explanation is more probably an afterthought put forward by him to account for his failure to attach the insurance wire and prepare the port anchor during the period between 1130 hours after the port cable had taken charge - or even more so following the collision with DORAR at 1300 hours - and the parting of the OCEAN TRAMP's buoy cable at approximately 1440 hours. I am advised that it would have been a prudent and proper act of seamanship to have done so, if not at 1130 hours then most certainly at 1300 hours - particularly bearing in mind that the typhoon was at its highest between 1100 hours and 1535 hours and Capt. Evans, on his own admission, was concerned about his moorings. I am of the opinion, and I am so advised by my Assessor, that, bearing in mind that the OCEAN TRAMP was a 'dead ship', Capt. Evans was negligent in that no attempt was made to prepare the port anchor for use. It may be asked at this point what effect the dropping of the port anchor would have had. In the first place, while the vessel was still secure it could have been dropped underfoot to reduce heavy sheering which puts varying stresses on the cable in the way of the lip of the hawse-pipe. Secondly, in the event of the ship breaking adrift from the buoy - a matter of obvious concern to Capt. Evans - it would have been of some help in assisting the second anchor to bring the ship "head to wind" which in a ship in ballast. is very important. Thirdly, it would have assisted in slowing down the speed of drift to leeward sufficiently to enable more cable to be paid out on the second anchor in a shorter distance over the ground. In other words it would act as an auxiliary to the second anchor.

37.There is conflicting evidence regarding the extent of cable outside the starboard hawse-pipe when the crew were ordered by the Captain from the forecastle head when collision with KUNEKAWA MARU became imminent. The log-book states that 8 shackles were out; that entry was not made contemporaneously but the following day after the collision.

Capt. Evans himself said that at about 11.15 a.m. he personally let out 4 shackles of cable on the starboard anchor and that he ordered more to be let out after they had broken adrift and that he did, in fact, see more cable running out. Capt. Poser of the ILLINOIS calculated that only 3 shackles would have been out. Considering all the evidence, I am of the opinion - and my Assessor takes the same view - that not more than 6, and possibly only 5 shackles were out. I am advised by my Assessor that 5 to 6 shackles paid out at that stage when the ship was already adrift from her buoy would have had little effect except to slow down the speed of drift to leeward. What was required at that stage was that every fathom of cable on the starboard anchor should be paid out in order to check her drift to leeward and bring, if possible, her head into the wind and thereby reduce windage.

After the OCEAN TRAMP had broken from her mooring at about 1440 hours, she drifted broadside to the wind, with wind and sea on her starboard side, and at about 1500 hours collided with the KUNEKAWA MARU, the bow of the OCEAN TRAMP striking the port bow of the KUNEKAWA MARU and causing her to break adrift from her buoy. However, the KUNEKAWA MARU, by the use of her engines, was able to manoeuvre clear.

After striking the KUNEKAWA MARU, the OCEAN TRAMP continued to drag rapidly to the north west, broadside on to the wind, and within a period of 2 to 3 minutes she collided with the ILLINOIS moored at Buoy A.14, the OCEAN TRAMP's port bow striking the bow of the ILLINOIS and then dragging down the starboard side of the ILLINOIS doing further damage to the bridge and the starboard quarter of the ILLINOIS.

38.It now becomes necessary to consider the position of the ILLINOIS and whether any fault or negligence can be attributed to her for the collision or series of collisions that took place. She was moored to Buoy A.14 with one shackle in the water on her starboard cable.

It was led through a fairlead on the stem. Her port anchor was dropped underfoot with one shackle on deck. Her main engines were available and used as required. As far as port regulations went in 1964, those arrangements were entirely adequate and, in fact, it is manifest upon the evidence that, in conjunction with a satisfactory draft and powerful engines, the ship was riding out the storm without apparent difficulty and would have continued to do so if it had not been struck by the OCEAN TRAMP. It was put to Capt. Poser in cross-examination that, in accordance with recommendations made in the "NOTICE TO SHIPMASTERS" the buoy cable should have been led through the anchor's hawse-pipe rather than through the fairlead on the stem. Capt. Poser disagreed with that suggestion. No doubt, it would have been better if the buoy cable had been led through the hawse-pipe, which is specially constructed for this purpose, rather than through the fairlead. The better lead through the hawse-pipe would indeed have tended to put less strain on the links of the cable, but it is important to emphasise that the cable did not part at this point of contact. Again, it was suggested that the fact that there was only one shackle of cable out to the buoy was inadequate and that there should have been at least 2 to 3 shackles out, the reason being to enable a greater catenary in the chain. It may well be that there is some substance in these criticisms, but I am fully satisfied that, with the use of her powerful engines, the ILLINOIS, despite her shortened cable and the fact that the lead to her buoy was through the fairlead instead of through the hawse-pipe, was in no way a contributory factor to the series of collision that took place or that these minor matters for criticism were responsible, either directly or indirectly, for the ILLINOIS breaking adrift from her buoy. After she had struck the ILLINOIS the OCEAN TRAMP dragged down the starboard side of the ILLINOIS, her starboard cable overriding the buoy chain of the ILLINOIS and dragging across from port to starboard until, in due course, the OCEAN TRAMP's starboard anchor, with its flukes down, came up and across the ILLINOIS's cable riding up the cable chain and causing the ILLINOIS to break adrift from her buoy. There is conflicting evidence regarding the respective positions of the two ships at the precise moment when the anchor appeared across the chain. Capt. Evans of the OCEAN TRAMP said that, although he could not himself see the anchor, he was of the opinion that his ship was about 200 feet astern of the ILLINOIS when the anchor rode up the ILLINOIS cable causing it to part from its buoy. That information must in part be based upon the fact that he considered he had 8 shackles paid out on his starboard cable. On the other hand, Capt. Poser of the ILLINOIS claimed that he actually saw the OCEAN TRAMP's anchor ride up his buoy chain and that shortly afterwards, when the OCEAN TRAMP was between his bridge and the stern of his ship, the ILLINOIS's cable to the buoy parted. It was upon this fact that he based his calculation that the OCEAN TRAMP only had about 3 shackles out on her starboard side. In view, and I am so advised by my Assessor, the Evidence of Capt. Poser is more consistent with the realities of the situation, and I am unable to accept that the OCEAN TRAMP had any more than 6 shackles, at the most, paid out on her starboard cable.

Meanwhile, the ILLINOIS had stopped her main engines and during the next ten minutes or so, with the vessels either in contact with, or closely adjacent to, one another, the OCEAN TRAMP changed her position around the stern of the ILLINOIS and came up on the port side of the ILLINOIS. striking her with the OCEAN TRAMP's stem against the port after-deck of the ILLINOIS and causing her the further damage which forms the subject of part of the plaintiffs' claim. It can only be conjecture as to what complicated forces of wind and current brought the ILLINOIS across the stem of the OCEAN TRAMP. But the position taken up by them was obviously the resultant of many forces acting in concert. Thereafter, the two ships continued to drag before the storm towards Ching-I Island, maintaining their positions relative to each other, that is to say, the ILLINOIS across the cable and bow of the OCEAN TRAMP with little or no contact between them. Eventually, the Master of the ILLINOIS took what must have been a desperate step, considering his unguarded propeller aperture, of going full ahead on his engines and hard a-port on his rudder, and got clear of the OCEAN TRAMP. The ILLINOIS was then brought safely to anchor.

39.It is suggested that if the Master of the ILLINOIS had re-started her engines after the initial collision and had gone full ahead or full astern, he could at least have averted the damage caused to the ILLINOIS both on the starboard side and later on her port side. I do not agree. No foreseeable improvement can be visualised from such a dangerous manoeuvre. It is a fact that after the initial collision and when the OCEAN TRAMP dragged down the starboard side of the ILLINOIS and appeared on his port side, Capt. Poser would have had very justifiable reason to believe that the OCEAN TRAMP's starboard cable was somewhere underneath his hull, and if he started his engines there would be every possibility that the cable would foul, and consequently ruin, his propeller.

Indeed, the survey subsequently carried out in America showed that, in addition to the propeller blades being chipped, there were unmistakable chafing marks on the hull below the waterline consistent with the action of a chain cable, and there is no reason to believe that such chafing marks on the hull and chipped propeller blades could have been caused in any other manner than by contact with OCEAN TRAMP's cable as it passed under the hull of the ILLINOIS from stem to stern.

On the evidence, I am fully satisfied, and I am so advised by my Assessor, that no negligence can at any stage be attributed to the Master of the ILLINOIS, either for the initial collision or for the series of impacts that subsequently took place causing damage both to the starboard, and later to the port, side of the ILLINOIS, and that the responsibility for all such damage must lie with the Master of the OCEAN TRAMP.

40.In conclusion, I find:-

41.I have reached all these conclusions on my own assessment of the evidence I have heard. I have, however, had the very great benefit of the invaluable assistance of my Assessor, Captain Torrible, a seaman of long navigational experience, and furthermore, of experience as to the port and harbour practice of ships in Hong Kong waters. The effect of the advice I have received from Captain Torrible is to confirm and support the decisions which I should have reached independently of that advice and assistance.

42.In the result, the plaintiffs' claim against the first defendant for damages occasioned by the collision which took place in Hong Kong harbour between the OCEAN TRAMP and the ILLINOIS on the 1st September, 1964, must succeed in its entirety.

The plaintiffs' claim against the second defendants must be dismissed, and the first defendants' claim against the second defendants by way of Third Party Proceedings for an indemnity or contribution must also be dismissed.

At the request of Counsel for all parties I have reserved the question of costs for further consideration and argument.

Representation:

Plaintiffs (Illinois)

Basto, OC & Mills-Owens (Hasting& Co.) for defendants (Occantramp).

A Zimmern (F. Zimmern & Co.) for 3rd party (Judgment handed down)