The Attorney General v Anglo-American Oil Co Ltd, The “FJ Wolfe”

 

The Attorney General v Anglo-American Oil Co Ltd, The “FJ Wolfe”

SHIPPING

COURT OF APPEAL

SCOTT, DU PARCQ AND MORTON LJJ

26, 27, 28, 29 NOVEMBER 1945

Shipping and Navigation – Collision – Convoys meeting on a crossing course – Crossing rule – Duties and obligations – Regulations for preventing collisions

at sea, rules 19, 21, 22.

In a convoy of eight columns, the ES, a vessel laden with war cargo, was leading the third column from the port side. In a separate convoy consisting of two

columns, the FJW was the commodore ship leading the port column. The convoys were unlighted and were proceeding towards each other on a crossing

course. That course if continued by both convoys, would bring into collision the ships in the convoy of the FJW with the leading ships on the port column of

the larger convoy. Under art 19 of the collision regulations the ES was the give-way ship, and, though she sighted the smaller convoy from a distance of three

miles, she continued on her course until she was about two cables distant from the FJW. The ES then put her wheel to starboard. The FJW starboarded her

wheel at about the same distance and reversed her engines, but her stem struck the ES on the starboard side at a right angle, and the ES sank in consequence:—

Held – Although the collision regulations as such did not apply, the requirements of good seamanship depended on the application of the crossing rule, as

embodied in the regulations, when two different convoys of ships approached each other on a crossing course. On the facts here, the ES, as the give-way ship,

was not justified in continuing on her course, nor was the action taken by the FJW premature. The blame for the collision, therefore, rested solely on the ES.

Notes

The question discussed in this case, for which there is no direct authority, is whether the regulations for preventing collisions at sea apply to vessels sailing in

convoy. The Admiralty Notice of 1942 applied only to a single vessel coming into the vicinity of a convoy, and it is argued in the case under consideration

that the crossing rule does not apply where both vessels are in convoy. It is held, however, that the regulations form a recognised code which all seamen

observe, and that this question is really one of fact involving the test, what did the rules of good seamanship require?

As to the “Crossing Rule,” see Halsbury, Hailsham Edn, Vol 30, pp 746–748, paras 967, 968; and for Cases, see Digest, Vol 41, pp 741–744, Nos

5923–5954.

Cases referred to in judgment

The Gulf of Suez (1920), 37 TLR 60, 41 Digest 745, 5965, on appeal [1921] P 318.

Kitano Maru SS Owners v Otranto SS Owners, The Otranto [1931] AC 194, Digest Supp, 100 LJP 11, 144 LT 251.

Heranger SS Owners v Diamond SS Owners [1939] AC 94, Digest Supp, 108 LJP 12, 160 LT 241.

The Scottish Musician [1942] P 128, 111 LJP 65, 72 Ll L Rep 284.

HMS Sans Pariel [1900] P 267, 41 Digest 746, 5977, 69 LJP 127, 82 LT 606.

SS Albano v Allan Line SS Co Ltd, Union Dampfschiffsrhederei Act v SS Parisian [1907] AC 193, 41 Digest 742, 5935, 76 LJPC 33, 96 LT 335.

The Etna [1908] P 269, 41 Digest 747, 5978, 77 LJP 138, 98 LT 424.

􀂭 359􀀉

Appeal

Appeal by the Crown from a decision of Pilcher J, dated 29 June 1945, in which it was held that the loss of the ES, a vessel laden with war cargo, by reason of

a collision with a motor vessel, the FJW, was due solely to the fault of the ES. The case raised the question of the duties and obligations of a ship in convoy

approaching a ship in a different convoy on a crossing course.

K S Carpmael KC and Owen Bateson KC for the appellant.

R F Hayward KC and Waldo Porges for the respondents.

Cur adv vult

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29 November 1945. The following judgments were delivered.

SCOTT LJ. This appeal has involved some interesting discussion about the crossing rule where a single ship finds itself involved in what I will call a

“foreign” convoy with the possible complication that that ship is also in its own convoy. It arises out of a collision in the North Atlantic near Newfoundland,

on 16 September 1942, at about 1.44 am ship’s time, equivalent to 4.44 am GMT. The ships were the Empire Soldier and the FJ Wolfe. The starboard side of

the Empire Soldier in the way of the bridge and the stem of the FJ Wolfe were the points of impact. The Empire Soldier sank in a short time, fortunately

without loss of life, but the cargo of war stores laden on board her, worth some £600,000, was totally lost.

The action was brought by the Attorney General, the stores being the property of, and the ship presumably requisitioned by, His Majesty’s Government.

We were informed that the proceeding was by Latin information, an archaic form of procedure which the Crown Proceedings Committee of twenty years ago

recommended should be abolished. Pilcher J held the Empire Soldier alone to blame and the Crown appealed. That judge delivered a carefully considered

judgment. I agree so completely with it that I should have been content to adopt it as my own with only slight exegetic comments on one or two incidental

sentences which may be slightly ambiguous; but as the case raises certain general questions of seamanship, if not also of law, as to the bearing upon the

Collision Regulations of the fact that one or both ships in collision were sailing in convoy, I will state the facts so far as material for the consideration of these

questions. I would add that if I omit to express any opinion upon any question which has arisen during the discussion, I refer to the judgment of Pilcher J

which I think covers them all.

Each of the two vessels was in convoy but not the same convoy. That of the Empire Soldier was a large one of about 36 vessels of eight columns, five

cables between columns and two or three cables between ships, eastward bound. At the time in question that convoy was on a course of 25 degrees true, that

is to say, roughly NNE. The Empire Soldier (of about 4,500 tons gross, heavily laden with military stores, draft 23ft 6ins forward and 26ft aft) was leading the

third column from the port side, the commodore ship being at the head of the fifth column. The FJ Wolfe’s convoy consisted of only four ships, similarly

spaced, the FJ Wolfe being commodore and leading the port column, with the SS Daghild behind her, the Pachesham leading the starboard column, with the

Marit II behind her. This small convoy had been formed unexpectedly at sea after an enemy attack by torpedoes which damaged the FJ Wolfe, the Daghild

and the Marit II and caused them to be sent off to St John’s for repairs. The Pachesham had not been attacked and apparently was a single ship which, being

bound for St John’s also, had joined the small convoy. The FJ Wolfe had broken plates projecting out of her port side, which interfered with her steering and

necessitated some continuous starboard wheel to counteract the interference. She was of about 12,000 tons gross, drawing 22ft forward and 23ft 10ins aft. At

the time in question the small convoy was on a course of 262 degrees true, or about W3/4S. It was accompanied by two naval corvettes as escort, their normal

station being some half a mile 4 points off the bow of the port and starboard leaders. The courses of the two convoys, therefore, crossed at an angle of

intersection of 57 degrees. If the crossing rule No 19 applied, either as a regulation in the strict sense or “as a guide to seamen,” the duty of the Empire

Soldier, having the FJ Wolfe on her starboard hand, was to keep out of the way of the FJ Wolfe and, under rule 22, to go under her stern; and the primary duty

of the FJ Wolfe was to keep her course and speed under rule 21, unless the note to that rule came into operation.

The night was fine and clear and northern lights enabled an unlit vessel to be seen from the south at a distance of three miles; but from the north the

visibility 􀂭 360􀀉 was limited to one mile. Neither convoy was exhibiting lights. At about 1.30 am, when still some three miles to the southward of the small

convoy, the second officer of the Empire Soldier in charge on the bridge, observed the loom of two or three ships 2 to 2 1/2 points on his starboard bow. Their

bearing did not change. When about one mile or three-quarters of a mile away he saw that there were four vessels still on the same bearing, and observed that

their course was west or a little south of west. After that, according to his evidence in the box, three of the ships broadened a little on his starboard bow but the

bearing of the fourth continued the same. The fourth ship was the FJ Wolfe. The judge’s finding is this:

‘When the vessels were a little under half a mile apart the F. J. Wolfe switched on first her red and shortly afterwards her masthead and green lights.

No helm action was taken by the Empire Soldier until the vessels were so close that it was apparent that the F. J. Wolfe was going to strike the starboard

side of the Empire Soldier stem on. At the last the wheel of the Empire Soldier was put hard-a-starboard in order to throw her after-part away from the

advancing F. J. Wolfe. From first to last the engines of the Empire Soldier remained working to give her the convoy speed of 6 1/2 knots. If the Empire

Soldier ever sounded a series of short warning blasts, I am satisfied that she did not do so until a late moment and at a point of time well after the F. J.

Wolfe was committed to her hard-a-starboard wheel. I find that the Empire Soldier went off about a point to starboard under her hard-a-starboard wheel

at the last and did not switch on her lights till a late moment.’

It is common ground that at some time (although at what stage of the story was in dispute at the trial) the Pachesham and the Marit II starboarded and

eventually got away northwards on to a course parallel to that of the big convoy, that is to say, 25 degrees true, but that the Daghild ported and passed

southwards between the third and fourth columns of that convoy. This operation of the Daghild escaped the notice of the second officer on the Empire

Soldier. I will revert to these vessels in a moment, but I will first state the findings of the judge about the FJ Wolfe. He said:

‘I find the following facts with regard to the navigation of the F. J. Wolfe. When on her convoy course of 262 degrees and making her convoy speed

of 7 knots with her convoy in reasonably good formation, the loom of an unlighted vessel, which was at first taken to be an escort vessel, but which

proved to be the Empire Soldier, was made out about three points on the port bow at a distance which I find to have been about half a mile, the

helmsman of the F. J. Wolfe was ordered to starboard 5 degrees. This order was carried out, but very shortly afterwards Mr. Salmond [the second

officer of the F. J. Wolfe] appreciated that what he had seen was not an escort vessel but a cargo vessel on a northerly course crossing his own. He

immediately ordered the wheel to be put hard-a-starboard, blew a short blast on his whistle, put the starboard engine full astern and switched on his port

sidelight. I think he took this action when the vessels were about 3 cables distant from each other. Shortly afterwards, seeing that the Empire Soldier

was apparently taking no action to keep clear, Mr. Salmond rang the starboard engine full astern and switched on his masthead and starboard lights. By

this time the vessels were only about 2 cables apart, and collision was virtually inevitable. It occurred in the manner already described, the stem of the

F. J. Wolfe cutting into the starboard side of the Empire Soldier in the way of No. 2 hatch. I am not satisfied that the F. J. Wolfe went off quite as much

as 50 degrees to starboard before collision and I think that the collision took place at about a right angle.’

The evidence of the second officer of the F J Wolfe, who was in charge on the bridge from midnight until after the collision, was that at about 1.15 he

saw flashes from about 4 points on the port bow, which had been reported to him by the look-out, and that they continued for about a minute. He thought it

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was one corvette signalling to the other. Checking back from the engine room times later, he thought that it must have been about 1.40 when he saw a dark

shape 3 to 4 points on his port bow, about half a mile away. He assumed that it was the corvette. He saw also about then what he thought was the other

corvette, half a mile off the starboard bow of the Pachesham. Under the impression that the corvette off his port bow was “rather too close” he went into the

wheelhouse and ordered a change of course to starboard of 5 degrees in order, as he said in the box, “to give the corvette more room”; but he did not give any

short blast on his whistle. From the commodore ship such a signal would have been an order to the convoy, whereas his purpose was limited to what he said.

He had not then realised it, but the dark shape was not the corvette, 􀂭 361􀀉 but the Empire Soldier. Counsel for the appellant made much of this starboarding,

but it could not have affected the action of the Empire Soldier as it was not, and could not be, observed by her. It is in my view irrelevant on the issue of

liability. We are advised by our assessors that if the dark shape had been the corvette it would have been a legitimate movement in case the corvette was

intending to cross the path of the FJ Wolfe some distance ahead. It is also, for a reason which I will state later, important to observe that the 5 degrees

starboarding was unknown to the other members of the FJ Wolfe’s convoy.

It was immediately on coming out of the wheelhouse after ordering the 5 degrees change of course to starboard that the second officer of the FJ Wolfe

realised that the dark shape was not the corvette but a merchantman crossing his bows from port to starboard, in direct breach of the crossing rule. He at once

realised, with this other ship so near, the absolute necessity of the FJ Wolfe as the stand-on ship taking action under the note to art 21. He immediately

ordered the helm hard-a-starboard and, to help that helm action, reversed the starboard engine full speed astern. He came out on to the port side of the bridge,

saw that the crossing ship was not giving way but continuing without change of course, rushed back into the wheelhouse and put the port engine also full

astern and switched on his lights, or at any rate, as the judge stated, his red light.

I have now stated the essentials of the problem we have to solve. Upon those facts the judge put to the Elder Brethren the following questions:

‘On the facts as found; (i) Was the Empire Soldier justified as matter of seamanship in standing on until she was between 2 and 3 cables distant from

the F. J. Wolfe? (ii) Was the situation such when the F. J. Wolfe took action that it could reasonably be anticipated by the F. J. Wolfe that collision

could not be avoided by the action of the Empire Soldier alone? (iii) Could the Empire Soldier have starboarded sufficiently to clear the F. J. Wolfe

without incurring risk of collision with the leader of the fourth column?’

The Elder Brethren answered these questions as follows: (i) “No”; (ii) “Yes”; (iii) “Yes.” The judge continued:

‘They point out that while, in their view, good seamanship demanded on the particular facts of this case that each of the vessels involved should act

in accordance with the requirements of the crossing rule, they would not be prepared, again on the facts of the present case, to condemn a vessel which,

like the Pachesham, took early action to get on to a parallel course with the approaching convoy, provided always that the units of such convoy were

observed at a sufficient distance to enable the turn to be made in reasonable safety. Whilst adding this rider the Elder Brethren are clear that the best

course in this case as a matter of seamanship was to take action in accordance with the crossing rule.’

On that I just observe that the turn to be taken by these two vessels in order to get parallel was necessarily 123 degrees (in order to make up the 180

degrees with the 57 degrees of intersection), that is to say, substantially half as much again as a right-angle. The judge added:

‘With this conclusion I am in complete agreement and I accordingly hold the Empire Soldier to blame for standing on in the way she did.’

Our assessors (before Captain Townshend had unfortunately to leave for domestic reasons) agreed with those answers, but, for reasons which I will state

presently, did not express any opinion about the rider. Since Captain Townshend left, Admiral Hamilton has, with the consent of both counsel, acted as our

sole assessor.

I will now state certain supplementary facts which are not material to the main issue, but call for consideration because of certain arguments of counsel

for the appellant. The chief of these arguments was that the Pachesham and the Marit II had acted as they did because they had seen the large-convoy and that

that action was in accordance with the duty of a prudent navigator of a ship in a small convoy; and on that contention he submitted that, if the crossing rule had

any application, the F J Wolfe ought, as a matter of seamanship, to have done to same in order to obey the note to rule 21. This contention rests on an

erroneous foundation. On 22 September 1942, only six days after the collision, the master of the Pachesham made a protest at St John’s in these terms:

‘That the Pachesham was in the same convoy as the motor vessel F.J. Wolfe. 􀂭 362􀀉 On Wednesday, Sept. 16, I was called to the bridge at 1.25

a.m. by the second officer who informed me that another convoy was crossing our track. I could see quite a number of ships. The night was clear and

calm and there were northern lights in the sky. At about 1.35 a.m. the F.J. Wolfe switched on her navigation lights and gave one short blast on her siren.

This was a signal to go to starboard. I ordered that my ship do the same and it was done. Shortly after the F. J. Wolfe switched on her light and gave a

blast on her siren, another ship, which was deeply laden and which was not seen by me up to that time, switched on her navigation lights. I could see

immediately that a collision between the two ships was unavoidable and in fact they did collide at about 1.45 a.m. As the ships of the other convoy were

bound north, they should have seen us before we could see them. They cut across our track. Before altering the course of my ship our course was 262

degrees true and the course of the other convoy was 025 degrees true. I did not know at the time what was the name of the ship with which the F.J.

Wolfe collided, but I have been informed since then that it was the Empire Soldier.’

That protest, it is to be observed, was made immediately after the event. He was subsequently a witness at the trial and the judge in his judgment decided

that his evidence as contained in that original protest ought to be accepted. That is a finding which, in my view, is obviously right, and I think anyhow that

after he had seen the witness we too ought to accept it. It is thus clear that it was the short blast given by the second officer from the commodore ship which

caused the starboarding of the other two, and that consequently the argument based upon that starboarding as representing the seamanlike reaction of

presumably competent navigators under the stand-on obligation of rule 19 is misplaced. That is the reason why I venture to say that the argument of counsel

for the appellant in that respect rested on an erroneous foundation. It seems to me that the action of the Pachesham and Marit II has nothing whatever to do

with the merits of this appeal. It was that order from their commodore ship which alone caused them to act.

There is one more fact that I must state. The judge found (and I accept the finding absolutely) that the look-out of the FJ Wolfe was defective in that the

Empire Soldier ought to have been seen at an earlier time. I accept that. But the judge held (and I agree with him) that that neglect of duty had nothing to do

with the collision in the sense of in any way contributing to it, because the ship was then doing what it would have been its duty to do even if it had been alive

to the presence of the Empire Soldier as the give-way ship on a crossing course at an earlier time.

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The arguments of counsel for the appellant amounted to this: first, a contention, which I do not think he really pressed very hard, that the mere fact that

the Empire Soldier was in convoy eliminated all obligations of the rules either as regulations having a binding force or as what I prefer to call principles of

seamanship. In my view, it is impossible to say that about a convoy. I am alive to the warning contained in notice No 7 of 1 January 1942, which in effect

merely applied the recognised views which have been expressed in the courts about convoys—that the fact of a ship being in convoy is a relevant

circumstance and that it is desirable for a single ship if possible to avoid getting mixed up with a convoy. If a ship has got mixed up with a convoy in

circumstances when it cannot be blamed for getting there, then, as it seems to me, it is quite impossible to argue that the fact that the other ship is in convoy

eliminates all necessity of considering the principles of seamanship as embodied in the regulations. Those rules represent the considered views of generations,

almost, of seamen of many nations. To that aspect I will revert in a moment. His second argument was that, assuming that rule 19 either “as such” or as a

principle of seamanship applied in the circumstances of this case, the FJ Wolfe acted prematurely. His third contention was that, if she did not act

prematurely, when she did act she acted wrongly.

On the findings of the judge in this case I have no hesitation in saying that his conclusions were right. The fundamental issue is as to the duty of crossing

ships when the give-way ship is a member of a convoy. In my opinion, since the abolition in 1911 of the statutory presumption of fault it makes, generally

speaking, very little practical difference whether one says that the operational rules for prevention of collisions apply directly “as such” or merely “as a guide

to seamanship.” If one of the ships is under a definite order from its 􀂭 363􀀉 commodore to take specific action, that is, of course, a relevant matter for

consideration; it is one of the circumstances that the navigator has to consider: but the principles of seamanship ought, in my view, always to be borne in

mind, whether you call them “rules” or whether you call them “principles.” Their bearing on maritime duty and fault under the one aspect or the other is

normally just the same. Every skilled and experienced navigator has got the crossing rule at any rate deeply ingrained and reacts to it just as a natural stimulus

from the brain acts on muscles; it is automatic. This view has been strongly expressed to us by Admiral Hamilton since his brother assessor was obliged to

leave.

That being so, I think it is the end of the case and, therefore, I do not discuss the cases decided since 1911 (when statutory fault was abolished) to which

reference has been made, nor those that were decided before. We have carefully considered the cases decided since 1911, all four them; The Gulf of Suez; The

Otranto; The Heranger; and The Scottish Musician. The cases before 1911 were HMS Sans Pareil; The SS Albano, a Privy Council decision; and The Etna.

When there was a statutory presumption of fault, some different considerations may have applied; but I do not think it necessary to discuss either group of

cases.

I would only add this with regard to the phrase in art 4 of the notice of 1 January 1942, entitled “Caution with regard to single ships approaching

squadrons or aircraft carriers,” as to which it is agreed that the word “squadrons” should be treated as including “convoy.” Article 4 of that notice says:

‘In circumstances where a single vessel has not taken early measures to keep out of the way of a squadron or aircraft carrier, the “regulations for

preventing collisions at sea” must be the guide.’

In spite of the argument of counsel for the appellant, “must be the guide” is a phrase which does not seem to me in any way ambiguous. I cannot imagine

any direction more simple or more proper than that mariners should take regulations as their “guide,” always bearing in mind the elasticity of arts 27 and 29 to

which reference was made in the pre-1911 decisions. Whether the regulations are to be regarded as quasi-statutory or as generally accepted principles of

seamanship does not seem to me to make any practical difference on the facts of the present case. So far as my judgment in the present appeal is concerned,

they may be either.

The appeal, in my view, should be dismissed with costs.

DU PARCQ LJ. I agree with Scott LJ that the judgment of Pilcher J cannot really be criticised at all seriously. It has been minutely examined, as was quite

right, and no doubt something may be said by way of criticism which has at any rate some apparent justification; but taking the judgment as a whole, I wish to

express my respectful approval of it.

The first question in this case, it seems to me, is what rules or principles ought to have governed the conduct of these ships, the Empire Soldier and the FJ

Wolfe. The judge puts it in this way

Whilst the collision regulations as such do not apply to the case under consideration, such regulations constitute a code recognised by all civilised

maritime nations as a code well adapted for preventing collisions at sea.

It does not in the end make much difference whether one says that the regulations, or at any rate the regulations as to crossing ships, apply with such

modifications as are made necessary by the fact that ships are in convoy, or one says, with the judge, that the regulations as such do not apply but in fact as a

matter of seamanship what are called the crossing rules must be considered to apply because, as Scott LJ has said, every mariner will properly expect every

other mariner to be acting on them and to be expecting that he himself will act upon them in his turn. If the judge approached the matter in the right way, it

seems to me that this becomes really a question of fact involving no doubt, when once you have decided all the particular facts of the case, the question what

did good seamanship demand? I say that that is a question of fact because that was strongly emphasised by Lord Wright in The Heranger ([1939] AC 94, at

pp 101, 102). He says (at p 101) that precedents are a very doubtful guide and that a question of this kind, a question of good seamanship, is a question of fact;

and (at p 102) that where there are no rules which apply 􀂭 364􀀉 to the particular facts the decision what action should be taken depends, and can only depend,

on the requirements of good seamanship and the application of the ordinary principles of the law of negligence.

For myself, I should not profess to be able to say what the rules of good seamanship demand without expert assistance. Here we have remarkable

unanimity of expert opinion. The Elder Brethren, answering questions which Scott LJ has already read, clearly were of opinion that the duty of the Empire

Soldier was to regard herself as the give-way ship, in the circumstances of this case. Our assessors have taken the same view. Counsel for the appellant

objected that, in the court below, the Elder Brethren had left out of account the Daghild, but we can assure him that, having heard all his criticisms in this

court, our assessors, and certainly the assessor who was able to remain to the end (although I think the observation applies to both of them) did not leave the

Daghild out of account at all. There is unanimity among the assessors, but I think it goes much further than that because, as I read the evidence of the second

officer of the Empire Soldier, who was responsible for the navigation, he does not disagree. Some of the passages in the evidence are of vital importance in

this case and they were properly emphasised yesterday.

I read the witness as agreeing that, though the crossing ships may be in a convoy, as between those two ships the crossing rule will, generally speaking,

apply. Indeed, it cannot be put more strongly than it was by the witness himself when, in answer to the question “You knew they applied both to a single ship

and to your ship?” He said “To any two ships meeting.”

Looking at the evidence, the fact is that the real cause of the course taken by the second officer of the Empire Soldier was that he had formed on

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inadequate material an erroneous conclusion as to what those ships which he saw were doing.

If, as I think with Scott LJ, the judge has correctly found the facts of the case on which the assessors have based their answers, it seems to me that there is

very little left to be said. Counsel for the appellant, not unnaturally, found something to criticise in the judgment, because it is very difficult to deliver a

judgment which is not susceptible to some criticism. One matter was what the judge said about the failure of the Empire Soldier to switch on her lights. No

doubt it may be said with regard to that with some justification that, even if she had, the FJ Wolfe, regarding herself as the stand-on ship, would not have taken

any other action than she did. Let that be ignored altogether—it does not affect the case. Even supposing the judge to be wrong about that (and I am not

saying that he was because it might have served a useful purpose if the lights had been switched on) it does not affect his main conclusion at all.

With regard to the starboarding to the extent of 5 degrees, again I agree with Scott LJ that that is an irrelevancy. So, I think, is the point which counsel

for the appellant forcibly made, that down to a certain time the look-out on the FJ Wolfe was not satisfactory. It does not avail anybody to say that the

look-out on a ship is unsatisfactory unless the badness of the look-out contributed to the collision, and in this case I do not think that it did.

I agree also with what Scott LJ said as to the criticism that the action taken by the FJ Wolfe was premature, and that it was wrong. There again we are

advised (and I can see no reason whatever to think that the advice is unsound, if I may say so) that on the facts found by the judge the action taken was neither

premature nor wrong. The judge sums it up by saying that the FJ Wolfe took no action until she was distant under half a mile from the advancing Empire

Soldier and thereafter switched on her lights, starboarded, hard-a-starboarded, and put her engines astern in the expectation that the Empire Soldier which was

the give-way ship under the crossing rule, would starboard, albeit belatedly, and thus avoid collision. The judge thought that that was not a negligent course to

take or an improper one and, advised as I am, I agree with him.

I have given no new reasons, but I thought it right that I should say how the case appeared to my own mind. I agree that the appeal should be dismissed.

MORTON LJ. I also agree and I desire only to add a few words on an argument of counsel for the appellant which has not been referred to by either of my

brethren. Plainly it did not suit the argument of counsel for the appellant if the crossing rule ought to have been applied in the circumstances of the present

􀂭 365􀀉 case and, very naturally, he sought to put forward another rule which ought to have been applied when these two convoys were meeting each other.

He suggested that when a smaller convoy meets a larger convoy either the smaller convoy should keep out of the way of the larger convoy or each individual

ship in the smaller convoy should give way to each individual ship in the larger convoy if there is any risk of collision. There seems to me to be strong

objection to the application of any such rule. It was brought to our attention by counsel for the respondents. In the first place, I am not sure what the

suggestion of counsel for the appellant would be as to what is to be the test of the size of the convoy, whether it is to be the number of ships or the tonnage of

the individual ships. In the second place, I should have thought (and this is confirmed as a practical matter by Admiral Hamilton) that it would be often a

matter of the greatest difficulty when two convoys are approaching for either convoy to be sure whether it is a larger or a smaller convoy than the other. This

must plainly be so at night, especially under war conditions, and I understand from Admiral Hamilton that the same practical difficulty would or might well

arise in daytime. If convoys well spread out and of considerable size were approaching each other, it might be said that the commodore of each convoy might

be warned if he was likely to meet another convoy on his journey; but, apart from the difficulty that that information might not be communicated to each unit

in the convoy under war conditions, the convoy might start off with 30 ships in it, and might be expecting to meet a convoy of 20 ships and there might be, for

reasons so obvious that I need not specify them, a very considerable reduction in the number of the convoy which was originally the larger and before it meets

the other convoy it may be the smaller. I cannot see any answer to those criticisms of the suggestion of counsel for the appellant.

I agree that this appeal should be dismissed with costs.

Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

Solicitors: Treasury Solicitor (for the appellant); Thomas Cooper & Co (for the respondents).

C SJ Nicholson Esq Barrister.

[1946] 1 All ER 366