JUDGMENT

Mya Bu, J - This case relates to the collision between the appellant company's steam launch, "Hardayal" and the respondent company's steam launch "Padu" in the Kaladar river on the night of 4th March 1932. The collision took place about midnight near Nataw Khali village, which is on the west bank of the river. It is common ground that somewhere opposite Nataw Khali village there is a shoal and that the navigable channel between the west bank of the river and the shoal is about 250 to 300 feet at flood tide. Although there is soma variation between the evidence tendered by one party and that tendered by the other as to the fullness of the tide at the time, it is not disputed that two launches of the sizes of those in question could pass each other, leaving plenty of room between them.

2. The collision took place while the "Padu" was going from north to south and the "Hardayal" from south to north. The "Padu" was carrying mails and passengers from Kyauktaw to Ak-yab, whereas the "Hardayal" which had been hired from the appellant company by one Mon Mohan Das at Rs. 250 for the first two days and Rs. 100 for every day beyond the first two days, from the evening of 3rd March, for the purpose of travelling in connexion with his taking possession of some grant land at Taungchaung, was proceeding from Taungchaung to Kyauktaw. According to the rules of the road two vessels passing each other in opposite directions must keep to the right; so the "Padu" should have been nearer the west bank of the river, while the "Hardayal" should have been nearer4'the shoal. The damage sustained by the "Padu" was on the port side of the prow, and the "Hardayal" had her front stem-piece bent.

3. Upon the evidence the learned District Judge found that the collision was due to the negligent navigation of the appellant company's launch, "Hardayal" by its serang, and assessed the damage sustained by the respondent company at Rs. 3,305. With reference to the finding of the negligent navigation of the "Hardayal" the learned Assistant District Judge held that the evidence in the case established that the two launches approached each other from opposite directions on a dark night in a wide navigable channel of the Kaladan river; that the "Padu" was steered close to the west bank of the river on her right; that when the two launches came to close quarters the 'Hardayal" failed to keep to her starboard side; that instead she kept her course directed to her portside and in consequence collided with the "Padu," her stem striking the portside of the prow of the "Padu" and that as a result of the impact the "Padu" was pushed on to the bank on her right.

4. If this view of what actually occurred is justified by the evidence, the validity of the finding of negligent navigation of the "Hardayal" by her serang as the immediate cause of the collision cannot be doubted. Although the correctness of this view of the facts is challenged by the memorandum of appeal, scarcely any argument regarding the facts was addressed to us by the learned advocate for the appellant company at the hearing.

5. Conflicting versions are put forward by the respective parties. The allegation made on behalf of the respondent company is that the "Padu" was at the time steaming close to the bank on her right and that the collision took place while she was as close to the bank as was considered safe. According to the story told on behalf of the appellant company the collision took place while the "Hardayal" was so close to the shoal on her right that at the time when the two launches approached each other the "Hardayal" had no more room to move further to the right, and so she reversed her engines, whereupon the "Padu" came upon her, and owing to the impact the "Hardayal" was pushed on to the shoal, while the "Padu" took an oblique course towards the bank on her right. Both sides adduced evidence of their respective serangs and some members of the crew and of some of the passengers on board the r