1. This is an appeal by the defendants in a suit described in the plaint filed in Court as a suit for compensation on account of the plaintiffs' cargo boats having been broken and sunk by a steamer owned by the defendants. The case of the plaintiffs, a firm carrying on business in the name and style of Ram Kanai Madhab Chandra Pat Radha Krishna Pal, Gobinda Chandra Pal, Krishna Kumar Choudhury Srinath Talukdar before the Court, was that in the month of December 1927, goods specified in detail in the plaint, belonging, to them, were being carried from Calcutta to a place named Kalaiya Bandar in a boat (Narain Majhi's boat), which reached the river to the south of a village named Karmakati, on 16th December 1927, a little after dusk, and lay at anchor beyond the usual track of steamers passing by the river there, with lights on it, visible from a distance. On that night between 9-30 and 11 p.m. the steamer 'Brahmin' of which the defendants the R.S.N. Co. Ltd., and the I.G.N. and Railway Company Ltd., were the owners, while on its journey from Patuakhali to Barisal, deviated from the usual route and collided with the boat and broke and sunk the same. The breaking and sinking of the boat, resulting from the collision, caused damage to the plaintiffs' firm, and compensation for damages and loss sustained was claimed. The claim was for recovery of Rs. 5,946-7-9, with interest from the defendant-companies.
2. The defence in the suit was that there was no negligence on the part of the master or Serang in navigating the steamer; that the steamer was following the usual steamer track and that the boat in question was in the deep navigable channel of the river and carried no light as required by the Government Regulations. The defendants pleaded non-liability for damages as claimed in the suit on the ground that the boat was kept in deep and navigable water channel, without any light on it. On the pleadings of the parties bearing upon the main case before the Court, a number of issues were raised for determination. The decision of the learned .Subordinate Judge in the Court below, on the three of these issues requires consideration in the appeal as the decree passed in favour of the plaintiffs in the suit for the amount of Rs. 4,995-7-6, against which this appeal is directed is based on the decision of those issues.
3. Issue 4. Whether the accident was due to any negligence or rashness on the part of the master and senior Serang of Section Section Brahmin in navigating his vessel.
4. Issue 5. Whether the accident was due to Narain Majhi keeping his boat in the deep navigable channel and not exhibiting any light as required by law?
5. Issue 6. Whether the plaintiffs are entitled to any damages from the defendants? If so, what is the amount of such damage?
6. The findings on evidence in this case documentary and oral, so far as they are material for the purpose of this appeal, may be summarised under the following three different heads: I. The Serang allowed the steamer to go beyond the usual track and got into the places used for the mooring of boats, and collided with the boat in question. The Serang or master of the steamer was not fully acquainted with the usual tract of steamers in the Patuakhali line. II. There were lights before the collision in the boat in question as also in other two boats, lying close by, as required by the Government Rules. III. The steamer clerk went to the upper deck; and he and the Serang were conversing with each other, and the talk in which they were absorbed went on until black things, i.e., the boat in question, along with other boats, were seen on the river, at a distance of 10 to 15, or 15 to 20 cubits off from the prow of the steamer, when they were first seen by them. On the evidence coming from the defendants' side, there was no fog in the river at the time of or before the collision, and that there was negligence on the part of the Serang not to see the boats when they were 300 feet or so off from the steamer. Witness 1 for the defendants deposed to the fact that things up to 200 cubits were visible; according to witness 2, things up to 150 to 200 cubits were visible. Mr. Dunn, the Marine Assistant of the defendants at the time of the accident, and who was on board the steamer at the time, deposed to these facts: There was no fog till after midnight, i.e., till after the steamer had left the place of accident. It would not be correct for anybody to say that at that time of accident there was fog. Owing to darkness objects on both sides of the river could not be seen clearly but they could be seen from 300 feet at most from the steamer.
7. On consideration of the evidence in the case, the whole of which was placed before us, the conclusion arrived at by the Judge in the Court below mentioned under I and II above, does not appear to us to be justifiable. The evidence in the case does not make out the position that there was any usual track or route which had to be followed on the part of the river where the collision took place, in the Patuakhali line, nor could it be said, on the evidence before us that the Serang of the steamer was not acquainted with the track to be followed by a steamer in the Patuakhali line. The materials on record do not further establish the fact on which great deal of evidence appears to have been adduced on both sides, that there were lights on Narain Majhi's boat, the boat in question, as was asserted by the plaintiffs. The presence of lights on the other boats lying close by was not of much importance or consequence in view of the definite case before the Court as to lights having been exhibited by Narain Majhi's boat, which was sunk as the result of collision. The other findings arrived at by the Court below as mentioned in III above, appear to us to be amply supported by the evidence in the case. The evidence in the case establishes that there was negligence on the part of the Serang, that the collision was not an inevitable accident, inasmuch as he could have but had not seen the boat with which the steamer collided when it was at a distance of 300 feet from the prow of the steamer; that a competent Serang could easily have averted the collision by the exercise of ordinary care and skill. The evidence in the case indicates further that the absence of light on the boat was not the cause of collision, seeing that the Serang and the steamer clerk who were on the upper deck together saw what according to the clerk was a 'big black heap' and according to the Serang, two or three black marks like jungles' or 'black things'. On the materials before us, we have no hesitation in coming to the conclusion, in agreement with the Judge in the Court below, that both the Serang and the steamer clerk were unreliable witnesses, so far as important facts arising for consideration in the case go, and that there was clear indication in their evidence, taking he same with other evidence, that their endeavour throughout was to clear their own conduct and exonerate the defendants from liability if possible. 'The big black heap' and the black marks like jungles' or black things' in their evidence were the boats lying at anchor, which according to unimpeachable evidence on record were visible from the upper deck of the steamer from a distance of 300 cubits, and the absence of light therefore could not possibly be taken to be the cause of collision, which could very well have been averted but for the negligence of the person entrusted with the navigation of the steamer. The collision was due to negligence and failure on the part of the Serang to use ordinary care and skill, and not to the fact of there being absence of light on the boat with which the steamer collided. On the facts of the case as established by evidence dealt with above, the law applicable to the case before us may be briefly reviewed, with reference to the authority of decided cases bearing upon the questions arising for consideration.
8. The burden of proof, although it loses its importance in a case like the present where all the relevant and material evidence has been placed on record, by one side or the other, in an action founded upon a collision between a vessel at anchor and one in motion is upon the owner of the latter to prove that the collision was not occasioned by any negligence on their part. The defendant has to prove that the collision was due to inevitable accident not arising from negligent navigation: see The Annot Lyle (1886) 11 P D 114. The defendant in the case before us did not satisfy the test by evidence led on their side; and did not discharge the onus that was upon them. The question of onus directly arising for consideration in a case of collision between a steamship and a sailing vessel, which had failed to comply with Admiralty Regulations regarding lights, was considered in Owners of the Steamship Fenham v. Surtees Wake (1871) 3 P C 212, in which the Judicial Committee of the Privy Council, being of opinion that the collision might have been avoided if the sailing vessel had obeyed the regulations, she was to blame for the collision that occurred. It was held in that case, that though the omission to exhibit proper lights might be immaterial where it was shown that absence of such lights was not the cause of the collision and did not conduce to it, the onus lay on such vessel to show that non-compliance with regulation was not the cause of the collision. In the case before us, not only the evidence for the plaintiffs, but the evidence on the side of the owners of the steamer, indicates clearly that the absence of lights on the boat was not the cause of the collision. The evidence coming from the side of the plaintiffs and the defendants points clearly to the fact that the boat at anchor was visible from the upper deck of the steamer, and that the collision was due not to the absence of light on the boat, but to the negligence and want of exercise of ordinary care and skill on the part of the Serang.
9. In the case before us a vessel under steam ran down a boat at her mooring when there was no fog, and when things on the river and on its banks were visible at a distance of 300 cubits from the steamer. That fact was prima facie evidence of fault on the part of the steamer, and she could not escape liability for the consequences of the act, except by proving that a competent Serang could have averted the collision by the exercise of ordinary care and skill: 14 A C 40 The City of Peaking (1890) 14 A C 40. The evidence in this case establishes the position that the Serang concerned could very well have averted the collision with the exercise of ordinary care and skill on his part.
10. The question of contributory negligence does not arise in the case before us on the conclusions on evidence mentioned in different parts of the judgment. There is no doubt about the proposition that the plaintiff in an action for negligence cannot succeed if it is found that he himself has been guilty of negligence or want of ordinary care which contributed to cause an accident. But the proposition is well established that the plaintiff may have been guilty of negligence, and although that negligence, may, in part, have contributed to the accident, yet if the defendants could by exercise of ordinary care and diligence have avoided the mischief which happened, the plaintiffs' negligence will not excuse him: see Radly v. L & N.W. Ry Co. (1867) 1 A C 754. The plaintiffs in this case might have been at fault for not having complied with Government rules for exhibition of lights on their boats lying at anchor; but the collision could very well have been averted by the exercise of ordinary care and skill of the Serang of the steamer, who we have no doubt, on the evidence before us, saw or was in a position to see the boat at anchor from a distance, and could well have by exercise of ordinary care prevented the collision. On the conclusions we have arrived, as indicated above, the decision of the Court below, holding the defendants liable for damages must be affirmed.
11. The quantum of damages has been determined by the Court on evidence before it, regard being had to the claim in suit. Out of the total amount of Rupees 4,995-76, decreed in favour of the plaintiffs, the sum of Rs. 500 approximately was objected on three main grounds. It was urged on behalf-of the defendants-appellants, that the amount of Rupees 287-4-9, representing the expenses incurred by the plaintiffs for sending the goods mentioned in Schedule (Ka) to the plaint, from Calcutta to Kaliya Bandar, should not have been allowed; that Rs. 200 should not have been allowed for miscellaneous expenses ; and that the amount of Rs. 100 for costs of conducting criminal case was not recoverable by the plaintiffs from the defendants. In the matter of costs for sending goods from Calcutta to Kaliya Bandar, it was conceded on behalf of the plaintiffs-respondents in this appeal, that the amount charged under that head could not properly be allowed to the plaintiffs in the suit. In regard to the three items generally it was stated that interest on damages having been disallowed by the Court below, the plaintiffs were entitled to get the amounts under the above three heads, on an equitable consideration of the case before the Court. In our judgment, the Court below was right in disallowing interest on damages in the case before us; and taking all the three items together, it would not be unfair, on the materials on record, to allow deduction in favour of the defendants-appellants, to the extent of Rs. 500, as claimed by them in this appeal from the total amount of damages decreed against them. The amount of Rs. 500 will be deducted from the amount of Rs. 4,994-7-6 mentioned in the decree of the Court below, passed in favour of the plaintiffs-respondents. The decree passed by the lower Court, against which this appeal is directed, is affirmed in other respects. The parties are to bear their own costs in this Court.