Onus Probandi : [Latin, The burden of proof.] In the strict
sense, a term used to indicate that if no evidence is set forth by the party
who hasthe Burden of Proof to establish the existence of facts in support of an
issue, then the issue must be found against thatparty.
At
Chennai much oil has flown on waters and to the shore as MT BW Maple with flag
of Isle of Man was leaving after emptying LPG and MT Dawn Kanchipuram loaded
with petroleum oil lubricant was on its way to berth at Kamarajar Port – an incident
caused by “human error” as stated by the State Fisheries Minister. Collisions do occur at Sea :and who
is to blame, if one vessel collides into another, which stationed; though it
may look too obvious, there is so much that does not meet the eye– and here is something interesting on a collision between a steamship and
Italian barque on 12th
Feb 1875, tried before High Court of Judicature at Fort William in
Bengal and subsequently appealed before the Privy Council. The facts of the
case have been extracted from ‘Judgements of Privy Council’ – digested by D Sutherland in 1880 !!!
Collision titled ‘tbone’ – from cargolaw.com
A privy
council is a body that advises the head of state of a nation; "privy" means "private"
or "secret"; thus, a privy council was originally a committee of the
monarch's closest advisors to giveconfidential advice on state affairs. The Privy Council in England was a judicial
committee to advice/recommend the British Crown i.e. British King /Queen, also
called as His/Her Majesty-in-Council, in the matter of law. The Judicial
Committee Act of 1833 introduced certain reforms in the King’s Privy Council.
Later on, the Appellate Jurisdiction Act of 1876 was passed making House of
Lords as the final Court of Appeal in England. The Abolition of Privy Council Jurisdiction Act,
1949 abolished the jurisdiction of Privy Council in England to entertain
appeals and petitions from any judgment, decree or order of any Court or
Tribunal in India.
The appeal before
the Privy Council on 2nd May 1877 before Sir James W Colvile, Sir
Robert Phillimore and others was the
collision by the stern of ‘Dacca’ running amidships into the port side of
‘Michelino’ whilst at anchor – it was sought to check
whether the collision was any consequence of negligence and bad
seamanship. The appeal itself had
been placed against the decree of High Court of West Bengal which reversed a
decree of one of the Judges of the Court of Vice-Admiralty.
The
facts of the case are fully stated in the judgment of their Lordships delivered
by Sir Robert Phillimore. "Michelino"
was an Italian barque, lying about three miles from the fairwayHart buoy of the
pilot's station near the entrance of the Rangoon river. She had been at anchorage there in Feb. The collision took place by the stem of the
"Dacca" running amidships into the port side of the other vessel
while at anchor. The burden of proof, therefore, lied very heavily upon the
"Dacca" to show that the collision so caused with a vessel properly
at anchor in a proper place was not the consequence of her (the "Dacca’s)
negligence and bad seamanship.
The defence tried
to portray that the barqueMichelinohad not, at the time, a proper light, in the
sense of not being sufficiently bright,
and that the light was not placed in a proper place. Those who appeared on
behalf of the " Dacca" relied
very much upon a rule of the port of Rangoon, which provides that all vessels
in the port and in the roadstead there shall carry a light upon their starboard
foreyard-arm. However, there was the light hanging on the fore-stay about 19 or 20
feet from the lower deck. There was no
dispute at all that this light was carried in that place, and was burning,
howsoever, at the time of the collision.
Their Lordships by
no means satisfied that, in the circumstances of this case, the rule which has
been referred to was binding upon the barque. She appeared to have been
anchored, perhaps in a fairway, but certainly on the high sea. Their Lordships,
therefore, opined that it would be a
question deserving of very great consideration whether, in the circumstances,
the rule which was binding upon her was not rather the sailing rule, which is
of international obligation, and which enjoins that the light shall be carried
where it can be best seen, not higher than 20 feet. It was also interred by the Lordships that the barque did carry a light
of such a quality and so placed as to apprise approaching vessels that she was
lying at anchor.
The question, thence,
was how dacca on way in the early
morning in Feb did not see the vessel lying at anchor, with a light
burning. The reasons assigned were :
-
there was a kind of haze upon the
water, which prevented the light being as well observed as it otherwise would
have been.
-
the pilot vessel, called the
'*Spy,*' which lay behind the barque at the entrance of the Rangoon river,
threw up a blue light ; and the "Dacca" having replied to that light,
another blue light was thrown up,; possibly the blue light might have been either
in one line with the light of the barque, or that it might have dazzled the
eyes of those on board dacca (Lordship consulting nautical assessor opined that
blue light would not have such effect)
An evidence
consisted in a remarkable letter addressed by the Captain of dacca to his agents on the morning of the collision, in
which he described the disaster as being attributable to the ship being directly anchored in a line
with the pilot schooner, and in the very track of our mail steamers,'' and in
which there is no reference, from beginning to end, to the accident being
attributable to the absence of light or the improper position of the light on
board the barque. The other evidence admitted by consent had been taken before
the Court of the Recorder ; and upon that evidence the Appeal Court came to a
very clear opinion that while, on the one hand, the negligence of the "
Dacca " was clearly made out, in running into this vessel, lying in her
proper anchorage water, there was no contributory negligence on the part of the
barque.
Court was of
opinion that the " Dacca" was to blame on various grounds : for
having gone at too high a rate of speed, for having put her helm a-starboard,
and for not having a proper look-out.
Their Lordships were of the opinion that the sentence of the Court of
Appeal must be sustained and the appeal before them was dismissed.
With regard –
Sampathkumar
28th Mar
2o17.