Chan Chung-fai v. The Pilotage Authority

HCMP000064/1979

-- Section 20 of the Pilotage Ordinance --

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Coram: Yang, J. in Court.

Date of Judgment: 4 April 1979

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JUDGMENT

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1. The Appellant was a licensed pilot. On the 22nd January, 1979, the Pilotage Authority cancelled the Appellant's licence upon the recommendation of the Board of Investigation.

2. The Board found that at about 18.05 hours on 27th March, 1978, "President Roosevelt", piloted by the Appellant, left Container Berth No. 4 at Kwai Chung and proceeded in a southwesterly direction, generally following the course of the prohibited anchorage leading to and from the Rambler Channel. When the vessel reached a certain point between No. 10 Buoy and No. 12 Buoy, she altered course to port, gradually changing heading continuously and passed eastwards of Buoy No.12.

3. The Board also found as a fact that a Thai vessel "Chamnarn Samut" (having been boarded by a pilot Mr. Kwok Tai at 18.12 hours well to the west of the normal pilot boarding ground) was heading north slightly across the prohibited anchorage area towards No. 12 Buoy. "President Roosevelt" was sighted by Pilot Kwok at about 18.21 hours, when "Chamnarn Samut" was passing vessels at anchor in, or on the edge of, the prohibited anchorage. At the time "President Roosevelt" was north of No. 10 Buoy proceeding in a southwesterly direction. She was later seen by Pilot Kwok to alter course to port to pass eastwards of Buoy No. 12 and "Chamnarn Samut" subsequently stopped engines with the two vessels in an end-on situation. "President Roosevelt" continued to turn to port; "Chamnarn Samut" turned hard starboard and was full ahead. The vessels collided, resulting in one death and one person being seriously injured, and also in extensive damage to both vessels. The collision took place at about 18.26 hours and in the vicinity of about half a mile south of No. 12 Buoy.

4. Visibility at the time was two to three miles and was not contributory to the accident.

5. As to passages in the prohibited anchorage, the Board said that it "is not a fairway, however the purpose of such an area was made clear in the promulgating Notice to Mariners, namely, 'in order to maintain a clear passage to and from Rambler Channel and south Tsing Yi Island' and the ordinary practice of seamen dictates that vessels should keep to the starboard side". It is argued on behalf of the Appellant that the evidence does not support the Board's view that ordinary practice of seamen dictates that vessels should keep to the starboard side whilst proceeding within the prohibited anchorage. It is further argued that if vessels should keep to the starboard side, then the anchorage becomes a fairway. The significance of the question whether or not the anchorage was a fairway is indicated in Rule 9(a) of the Collision Regulations and Distress Signals Order 1977, which provides that a vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway which lies on her starboard side as safe as practicable. As the prohibited anchorage is not a fairway, vessels are not obliged to keep to the starboard side. Indeed in his evidence the Chairman of the Hong Kong Pilots Association, Mr. Tong Ching Wan, spoke of the prohibited anchorage in these words: "On a fairway, you have some rules to follow, but on this (i.e. the prohibited anchorage), people can go that way and go this way." Mr. Tong was questioned about the route he would take in proceeding to and from Kwai Chung:-

In my view Mr. Tong's evidence is not inconsistent with the Board's opinion, which was that the "ordinary" practice of seamen is to keep to the starboard side. A seaman therefore has a discretion within the limits of safety.

6. On the evidence, the Board found that the Appellant had failed in his duties as a pilot (vide section 19(2)(b) of the Pilotage Ordinance) in the following respects:

7. On (1), it is contended on behalf of the Appellant that the speed of "President Roosevelt" was not in the circumstances excessive. It would appear that the distance covered by the vessel from the time she left Container Berth No. 4 at 18.05 hours to the time of collision at 18.26 hours was about two and a half miles. By 18.14 hours her speed was seven and a half to eight knots, and by 18.18 hours ten knots. By 18.22 hours, she was travelling at twelve knots and very near to Buoy No. 12 which was about half a mile from the point of collision, At the time of collision her speed was reduced to about three knots. The average speed from 18.22 hours to 18.26 hours was therefore about seven knots. At the time of collision the speed of "Chamnarn Samut" was six to seven knots. The Board did not analyse the speeds of the two vessels, but in my view they were entitled to come to the conclusion that the speed of "President Roosevelt" was excessive in relation to the circumstances prevailing at the relevant time i.e., that her speed was unsafe. The members of the Board included two Master Mariners. Their knowledge and experience ought to be respected, unless their findings are inconsistent with or otherwise not supported by the evidence.

8. On (2) the congestion in the area is not really in dispute. All the evidence points to vessels anchored and small craft travelling in that area. The Appellant's reason for turning "President Roosevelt" to port to the eastside of Buoy No. 12 was that there were vessels on the westside of the Buoy. The Board was entitled to reject the Appellant's reason and come to the view that they did.

9. On (3), once it is accepted that "President Roosevelt" got into congested waters, then it must follow that there was little or no room to manoeuvre. Again the Board was entitled to their opinion here.

10. On (4) it is argued that there was never an end-on or head-on situation. The evidence shows that "President Roosevelt" was taking a curved or curving course, so an end-on or head-on situation did not arise. Whilst there might have been a momentary head-on position vis a vis "Chamnarn Samut" the two vessels were not meeting on reciprocal or nearly reciprocal courses. It was not a Rule 14 situation under the Collision Regulations and Distress Signal Order 1977. Rule 14(a) provides that when two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision each shall alter her course to starboard so that each shall pass on the port side of the other. Though Pilot Kwok referred to a nearly end-on and head-on situation, Captain Jordon's evidence was that "President Roosevolt" was gradually changing heading to port continuously. It might be thought that Captain Jordon contradicted himself when he said his vessel "was going left in easy stages", but it is I think commonsense that an ocean liner such as "President Roosevelt" with an overall length of 203.61 metres and carrying a deadweight of 20,190 tons is incapable of negotiating a series of short straight lines. It would therefore appear that the Board's finding of an end-on situation was not supported by the evidence. It was not a Rule 14 situation. The Board's opinion under this head (based as it was on a finding of a head-on situation) cannot stand.

11. The Alcoa Rambler Case⁽¹⁾ was cited, but the facts of that case are different from that in the present case. There the "Alcoa Rambler" was involved in a collision with a Norwegian ship called the "Norefjord". Lord Wright (at page 249 and 250) observed:

"There is, however, a more general question which has to be considered in this case, namely, whether what the Norefjord was doing was being on a 'course' when she was making what the pilot called a curved course. The ordinary idea of a course is a sufficiently constant direction of a ship on the same line or heading. This will enable a navigator when he sees the other vessel to know if she is on a crossing course. He can often only become aware of that if he can keep the other vessel under observation for sufficient time to ascertain if she is or is not changing her heading. In the open sea this is the usual procedure: as, for instance, in the S.S. Kitano Maru v. S.S. Otranto [1931] A.C. 194. In that case the navigating officer of the Otranto, the stand-on ship, watched the give-way ship, the Kitano Maru; he first saw the latter vessel when 6 or 7 miles distant, a little before 8.30: he took a compass bearing and then took another: at 8.40, finding she was not altering her bearing, he sent for the captain; then at 8.45, as her bearing still was unaltered, the situation was considered so dangerous as to justify and require the Otranto to take action for the other vessel. This was held to be correct to that extent, though she was the stand-on ship. But the helm action which he took was the wrong action: she should have stopped and reversed. This case is cited here as an illustration of the critical test for inferring that the vessel is on a course, that her bearing does not alter. It may often not be possible in narrow or congested waters; in the present case it could not be applied in regard to the Norefjord. If however, it had been possible to watch her movement for some time, the manoeuvre would not have shown that she was keeping a steady course: her heading would have been altering to port. A curved or curving course, constantly changing under a port helm would not have enabled the give-way vessel to decide how to act for her."

12. On (5), it is clear from the evidence that the Appellant gave contradictory orders at a very crucial moment, i.e. about half a minute or so before collision. The Master of "President Roosevelt" Captain Jordon, whose evidence the Appellant relied on, had this to say:

"When we got the crossing signal, my pilot blew one blast and then he ordered hard right and immediately he said hard left and I saw the Samut began to turn this way and then apparently back the other way a little bit. I don't know exactly why, she is a kind of made a wag and then began a sharp right turn and then I said at that point, there is no good, go hard right and full astern, and then I went over to make a telegraph jangle to indicate an emergency to the engine room, and we did not succeed in bringing my ship back to the right. We did give to swing to port and it was going steady at the time or the last half minute prior to the impact, but we did not manage to swing to starboard. The Samut continued to turn and I assumed crabbed somewhat, her bow cleared our bow and the stern came up against the stem."

13. It will be seen that the Appellant ordered hard right and then hard left, and then Captain Jordon took over and ordered hard right and full astern. The Board was of the opinion that when reaching the point of imminent collision the Appellant became confused and he failed to take remedial action; if the hard to starboard action ordered by Captain Jordon had been taken fractionally sooner collision might have been avoided." Their conclusion is in my view unassailable.

14. It remains for me to consider whether cancellation of the Appellant's licence is excessively harsh. The decision of the Divisional Court in The Empire Antelope⁽²⁾ has been cited in support of the contention that the cancellation of the Appellant's licence is too severe a penalty. It was held in that case that a condition of unfitness from incompetency implies a certain clement of duration, and, although conduct on a particular occasion may be such as to lead to the conclusion of incompetency, the circumstances must be quite exceptional to justify such a finding against a master with an unimpeachable record in relation solely to an isolated incident. The Appellant's misconduct is of a different nature but the decision is nevertheless helpful in that the Board should consider most carefully whether an isolated incident which amounted to a failure in the pilot's duties justifies a cancellation of his licence. Here we have an isolated incident consisting of a series of failures, and there may well be occasions when an isolated incident is sufficiently serious to warrant such an extreme penalty.

15. In the light of my judgment I think the best course is for me to refer the case back to the Board to reconsider the appropriate penalty and I so order.

Representation:

Mr. Nicholas A. Philips, Q.C. and Mr. William Waung (Wilkinson & Grist) for Appellant.

Mr. John Harte, S.C.C. and Mr. R. McCallough, C.C. for Respondent.

(1) (1949) A.C. 236.

(2) (1943) Probate 79.