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Lea diagrammes suivants iliuatrent la methods. 1 2 3 4 5 6 MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) 1.0 I.I \ 2.8 3.2 3.6 It' I 2.5 22 2.0 1.8 _J /APPLIED IIVMGE Inc ~^. 1653 East Main Street r-S Rochester, New York 14609 USA ^= (716) 482 - 0300 - Phore iSS (716) 288- 5989 - Fox CAS] Hi, CASES IN THE VICE-ADMIRALTY COURT AT QUEBEC y <: 'L CASES 8BLBCTBD FROM THOHK HEARD AND DETERMINED IN THE VICE-ADMIRALTY COURT AT ^. ,(4w.^ 'Ci QUEBEC, INVOLVINO ^mMmt^ of §kdtijj« pw OF FREQUENT OCCURRENCE IN THE TRADE AND NAVIGATION OF THE RIVER AND GULF OF ST. LAWRENCE. AN APPENDIX CONTAINING THE IMPERIAL STATUTES SPECIALLY RELATING TO VICE-ADMIRALTY COURTS, AND THE RULES OF PRACTICE OBSERVED IN THEM, AS ESTABLISHED BY ORDER-IN-COUNCIL. EDITED BY \j WILLIAM COOK, ESQ., Q.C. y ^^ J /.' ( ^'-' JOHN LOVELL & SON, PRINTERS AND PUBLISHERS. 1886. T] from the ^ Hon( 1873 conti Repc Ml Judg Impe as Ji Intt emin Bar- porta unre] licati accon toth are ii ''% PREFACE. The present volume contains a full selection, from decisions in Admiralty causes, rendered in the Vice-Admiralty Court at Quebec, by the late Honorable George Okill Stuart, between the years 1873 and 1884, and may thus be regarded as a continuation of the Lower Canada Admiralty Reports, published in London in 1858 and 1875. Mr, Stuart, who had occasionally acted as Deputy Judge, was, in October, 1873, appointed by the Imperial Government to succeed the late Mr. Black as Judge of the Vice-Admiralty Court at Quebec. In the ten years during which he held this office— eminently to the & y. .faction of the public and the Bar— he was callea upon to determine many im- portant causes, most of which have been hitherto unreported. It is believed that the present pub- lication of some of the decisions of a learned and accomplished Judge will be of advantage, not only to the profession, but to those of the public who are interested in maritime matters. ri PREFACE. While, of l;ite, iiiiirkod chiuigos have taken place ill the character and extent of the trade of the Dominion by the St. Lawrence, even more "*riking changes have occurred in the vessels by which that trade is carried on. Within the last few years, steamers of great power and capacity have in large measure superseded the sailing vessels of former times. Not a few of the cases reported in this volume will be found to deal, accurately and clearly, with many difficult and novel questions, arising from the application and construction of rules, primarily intended for the guidance of vessels at sea, to the navigation of large steamers in the narrow and confined channels of the inland waters of the Dominion. For the convenience of the profession, the Im- perial Statutes regulating the jurisdiction of the Court, and the Rules of Practice recently intro- duced, under the Queen's Order-in-Council of the 23rd August, 1883, are given in an Appendix. On account of this change, which assimilates the practice in Vice- Admiralty Courts, to that of the Admiralty Division of the High Court, it has been considered unadvisable to extend this volume by reporting decisions on points of practice arising under a system which has passed away. It may not however be out of place to express the hope, that rules modelled on the simple and efficient procedure now adopted in the High Court of Justice of England, may before long supersede in PKEFACE. vii iken place de of the 3 "*.rikiiig by which last few 2ity have v'OHsels of lorted in itely and uestions, action of )fve8sel8 rs in the d waters the Im- n of the y intro- 1 of the IX. On Ltes the b of the las been ume by ari-sing It may e hope, ifficient lurt of iede in « the Courts of Common Law of the Province the proMont antiquated .system, which contributes so much to fetter and iini)ede the administration of Justice. The Editor, histly, desires to express his great obligation to Mrs. Stuart, for her kindness in phicing at his disposal all Mr. Stuart's notes and papers connected with these decisions ; thus not only rendering his task an easy one, but enabling him, in almost every instance, to present the judgments in the exact terms in which they were rendered. Quebec, Ul Ootober, 1880. A C C: Q CI Q Q U N, N. Ct Fi R( Hi Fr El La N( EI] Eu Be Ea Wi Cit Cy Ati Go TABLE OF CASES REPORTED. PAGE Agda — Dietriehs •» Clydesdale — Torrance J " . Collision 1 Czar — Scollaw . Collision . 9 Quebec — Bennett ^ Charles Chaloner —Russell J . Collision . 17 Quebec — Bennett . . Collision . 82 Quebec — Thearle . . Collision 37 Underwriter — Kobertson Lake St. Clair— Coffee . Collision . 43 Agamemnon — Maitin Collision . . , r.Oi N. Churchill— lioutch Normantou — Leitcli . Collision . 65. Celeste — Wright . Registrar's Report — Damages . . . 76: Frank — Petersen . Collision . 81 Rosa- Gill Ranger — Topping " . Collision 93; Frank — Petersen . Registrar's Report — Damages 106. Eliza Keith — Healey j Langshaw — Bain ] ' Collision . . . lOT Normauton — Leitch . Registrar's Report — Damages 122 Elphinstone — Beal . , , . Collision . . . 132 Enmore — Ilolman Belle Hooper — Gilkey Collision . 139. Earl of Lonsdale — McKeuna. Collision . . . 153 Commodore — Milne. . . . Collision . 167 William — Samson. Collision . . . 171 City of Manitowoc — Higgle . . Salvage — Necessaries 178 Cybele— McMillan Collision . 190 Attila— Clift Collision . . . 196 Go vino — Scarlett. Collision . 203 Canadieune — Beaudet Mariner's Wages . . 20» TAHLE OF CASES REPORTED. Edward Barrow — Rich. Atalaya — Eve . Oeneral Bircli — Pedersen Progress — Cliabot Princess Royal — Watts") Rubens — Knudsen j ' Bridgewater- Bridgewater- Atalaya — Eve - Dowel 1 -Do well Margaret IVI. — Faquet Ida — Roulstoii Euclid — Anderson . Farewell— Cotd . European — Simpson, Lombard — Stevenson » Farewell — Cot^ ) Botlia! — Hrotherton Nelson — Glaister Barcelona — Anderson Red Jacket — Atkin . Progress — Bernier Barcelona — Anderson Monica — Thacker at a distance variously stated by the witnesses at from one and a half to three cables' lengths, those on the part of the Foil LOWKlt CANADA. 3 A'^ihi Statin,!,' it to ho a cahle (,r a cable and a halfs length, Aoda. and t].o,se on the part of the Clydesdale stating it to have ^''^°'=«"^'"= been at a distance of three cables' lenoth. The vessels liad been riding at single anchor and had swung to the tide clear .•f each other several times without accident, and at the time of the collision Mere heading westward. Both parties agree that the night was rather dark and rainy, the direction of the Willi was n.jrth-east and east-north-east, and blowing a strong breeze. The tide had been ebbing for more than two hours when, at about half past eight o'clock p.m. on Friday, the 30th, a collision occurred, which was succeeded bv another about half an hour or three quarters later. That these two vessels came into collision, and that each of them sustained considerable damage is certain. On the occasion of the first collision, the Clydesdale's jibljoom anth of July, and had passed, they examined the i)lace where the cable hail been fastened, and found it wrenched (.If and gone. ]\Ioreover, the period when this took jilace corre.sjionds with the jieriod when the working of the cable gave out, and, in tlie absence of any other assigned or assignable cause, (here is no doubt that the sub-marine cable was broken by the anchors and chains of the Czar. With reference to the mooring of this shij., her master, Gilbert Christo],her Scollaw, has stat.'d that sIk; was moored at Uockett's wharf, "with live parts of lanyard roj>e, e(|ual to five ropes, a seven inch warj., a ten inch coil hawser, and a one and one-eighth mo.iring chain forward, one one-inch and one-eighth mooring chaiji nii(lshij)s, and a fourteen inch hawser off tlie (puirter ; w(. had also our starboard anchor out, weighing about tw(. tons, crossing the stem to ju.rt with about ninety fathoms of chain. 1 had heard that the tide ran .strong there, and, knowing the; size of my ship, I was determiniHi to make her as fast as jioasible." Cn the morn- ing of the foiirth, the day before the injury to the cable he further states: " 1 left the ship to j.ay my bills, sign bill.s of lading, and clear her at the Custom House ; tin's was about half-i)a.st nine o'clock in (he forenoon. She was thcTi perfectly safe and secure at her loading berth. After dis- '•n )UUT Vtm LOWER CAXADA. 1:5 line cable it is ly liiui iiii olWw tors tliere com- o'clock ill the |iiiS8e(l tlii'oii^fli ;i coiitimit'd to ', wlu'ii it ort, a collmun will he inevitaltle ; and lie says, about two minutes afterwards, he did see the man at the wheel of the Cliarles Clialoner i)ut his helm to ])ort, and then the (Quebec came across the Cliarles Chuloner to pass between her and the Princess Alexandra and his tug. The passage open between the sailing ships this witness believes to have been about four arjients ; that is, about seven hundred and twenty feet. Mr. David John Cil- inour, a witness also examineil for the steamshi]), was on Long Wharf, at Indian Cove, and he has stated that when he first saw her, "the Quebec was a little nearer the north shore than the south, and after tiiat she was about mid- channel, inclining slightly to the soutli chore." The remain- ing tiiree witnesses on this inqjortant ]»oint are pilots who were on board of a jiilot schooner. Their statements quite agi-ee, and a reference to one, that of the master of the schooner, Paul Pa([uet, will sulHce. He was on her deck- steering when the Qu-bec passed northward of him about a mile and a half below the west end of the Island of Orleans. When the steamship so i)assed she was about a mile from the south shore, and about three times her own length to the north of the schooner. That about ton min- utes after the steamship passed him he saw her with her head to the southward and then she was on the south side of the river and among the sailing vessels, that when the Quebec passed the schooner "she was steering a course right u]) the river, and when she had her head to the south- ward she was about four points off that course," and he does not know why the Quebec thus altered her course. He states, further, " that when she passed us she was in the usual course of steamsJups coming up the river, and when I saw her with her head to the southward, she was not in that usual course but four points off it." This evidence, particulariy that of the three pilots, wliose .4 J* .'it JUUUT tilt! man at the Ix'lici'Cit us (no, Uiidonir were tit inevitahle ; and Jid see the man 118 ludni to ])(>rt, It's ('hillolKT to dm and his tug. )i.s this witness ; tliat is, about avid Jolin (Jil- ianishij), was on ;ated that when learer the north vas about mid- The romain- t are pilots who tatenients quite master of the 13 on her declc d of lum about the Ishind of he was about a times lier own ibout ten min- V her with lier . the south side tliat when tlii> ering a course d to the soutli- ourse," and he 'ed her course, she was in the iver, and when slie was not in 6 pilots, whose FOn LOWER CANADA. 23 funiilinrity with the channel as well us the nature of tiieir SS. QuEnKc, callinjr, entitles their evidence to full wei-dit, can leave no /'"ahlkh III,, r^ • (JIAI.DNKK. doubt l)Ut that the steainshiiKS course was not ont; in a parallid line cDnliiiually to jiass between tlie sailing sliips nearer to the Trinoess Alexandra, but was a transverse course, slantwise, as stated by the man at the helm of the Cbarh's ('biil(in(ir. Tbc steanislii]i tht^nd'ore must be eon- sidiTcd as baving liuld a e(jurse, and, according to the pilots, an I iiusuui cunr.se, gi-adually crossing the path of the Charles t'lialoner, and. either before, at the time of, or alter sh(! Iiad done so, a collision with her occurred. The conclu- sion IVoni tiiis evidence is tliat the courwe of the steamsbi]), in approaeliing the .sailing ves.sels, involved risk of collision. Tlie cbaniud wliere the collision took place a])pears by Admiral IJaylield's chart to be live cables in width, a cable btiing l)y bini stated to be one hundred fathoms. Tlie south side, as far diltictilt to ascertain either with strict accuracy. It is certain that the sjjced of the steamship was not slackened until after the Charles Chaloner had })ut her helm " hard-a-port." The words " immcdiutely after" are used by witnesses for the steam- ship, but it was not done, as apjjcars fiom her mate's testi- mony, until after the Charles Chaloner was coming round on her port helm. Her pilot says that she was then twice her own length off, this length by her register being 318 feet. The speed of the steamship had been reduced to about three-fourUis by the letting down of her fires. Her master has stated that it was about nine knots, and that the speed of the sailing vessels was between six and seven when the Charles Chah.ner ported her helm. Their con- joined speed while approaching would thus have been about a mile in four minutes. The time when, and the distance within which, the .speed of the steamship should have been slackened, is a question for nautical skill, and one upon which the opinions of the assessors, whose aid I am favored with, will enable me to decide. Then, did the steamship stop and reverse, so as to avoid risk of collision ? This is also a question for nautical skiU, and upon which similar advice will be taken. Her master has stated that it would take two minutes and a half by reversing from "full-speed ahead," to " full-speed astern," to gain stern-way. Her pilot said that he gave an order " full-speed astern," immediately after the Charles Chaloner ported, the effect of which, so far as he knew, was to bring her to a dead stop or to very little headway. This order, he further states, was the only one given by him between the Charles Chaloner's porting and the collision with her. Witnesses vary in their statements as to the effect of this order ; those for the steamship say somewhat like her pilot, that h( the otl after si struck kiiuLs. found Princes tlie Ch of dam be cont veys of Princes have be former survey extent, the sixt feet fro] wide at blow wi cargo ol carried i did not ened he Some ic formed i of timbe became sunk if 1 the Que her. Hi tliird pic fourth ai indented the stem plates fr the tentl ■"MP^'^I >URT ip in approach- 80 as to avoid li article. The s coni])Osed, as It to ascertain it the sjjeed of er the Clmrlea The words for the steam- ;r mate's testi- coming round as then twice tor being 318 n reduced t' 'stop,' mil tlien tlie •e could tober, 1874, were the sfeamsliip (,»iiebec and tiie Charles (Mialoner, a Siiiling slii]), jiroceeding iu such directions as to involve risk of collision, and, if so, wlien did such risk commence, and did the steam- ship keep out of the way of the sailing ship, aud if she did not, what course shoidd she have taken to do so ? 2. Wlien tlie steamshii) was a.])])roaching the s;uling ship and the Princess Alexandra and her tug, Wiis it necessary to slacken her speed, and if so, did she do it in pixjper time ? 3. Should the steamship have slackened lier speed before the Charles Chaloner ported or befon; jier helm was put " hard a-port," so as to avoid risk of collision ? 4. When the steanishij) was approaching the sjiiling ship was it necessary for her to stop and reverse, so as to avoid risk of collision ? A H.sH't';' to the jird.~T\\(i steamship and the Charles Cliidoner, on the 30tli October, were proceeding in such directions as to involve risk of collision. The risk com- menced when the steamship altered her coui"3e to go to the southwartl, and she was then distant three-quarters of a mile or thereal)outs from the Charles Chaloner, that is, when the latter ported her hebu. The steamship certainly did not keep out of the way of the Charles Chaloner. She should have kept her course stmight up the river passing to the north of the Charles Chaloner, when she would have had more than half of the channel cleai-. 28 SS. Quebec, Chables CH A LONER. CASUS IN THE VICE-ADMIRALTY COURT Ansiver to the second.— The steamship, when approach- ing the two ships, should have slackened her speed, but she did not do so in proper time ; she slackened it when too late. Ans^ver to the third— She ought to have done so, and if she had there would have been no collision. Ansiucr to the fourth.— When the Charles Chaloner's helm was ported the steamship should have stopped and reversed " astern full-speed " continuously, and thereby the collision with the Charles Chaloner would have been avoided. E. D. AsiiE, Commander R. K F. GouRDEAU, Harbor Master. I concur in these opinions, and find that the course of the steamship was one of risk and danger, and that prompt and efficient action to meet and avoid it was wanting. Her ease is based upon the assumption that she was on a course that she had a riglit to take, and one which, continued, would have carried her safe through. The weight of testimony is against her upon tliis, but had she been so, it would have made no difference, because, even then, she should have slackened her speed and reversed in time ; and although it is possible, perhaps probable, that if the Charles Chaloner had not ported, the steamship would have gone cleai:. still she was running a hazardous risk in contravention of the fif- teenth regulation, and for this the probabihty of a success- ful experiment furnishes no excuse. When the joint speed of the approaching vessels, a mile in four minutes, is con- sidered, it should have occurred to the pilot of the steamship that some derangement in some one of their courses might occur from accident or error, and it has so happened that there is evidence to be found in the deposition of the master of the Shannon, adduced for the steamship, that the con- tingency of a collision of the Charles Chaloner's porting her helm was foreseen by him as the steamship approached, and there is no reason why her pilot should not have anticipated a possibility of the same event. FOB LOWER CANADA. 29 a approach- eed, but she it when too le so, and if Chaloner's stopped and thereby the have been lev R. N: Master. »urse of the irompt and ting. Her )u a course ued, would istimony is ^ould have ould have liough it is aloner had r still she of the fif- a success- oint speed eg, is con- steamship 'ses might ened that he master J the con- 's porting proached, not have I now proceed to the case of the Charles Chaloner against SS. Quebec, the Quebec. Chablkh It was her duty no less than that of the steamship to adhere to the regulations. Those that concerned her are the following : — Art. 18. When by the above rules one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the foUowincr article : Art. 19. In obeying and construing these rules due regard must be had to any special circumstances which may exist in any particular case rendering a departure from the above rules necessary to avoid immediate danger. The stand taken by the Charles Chaloner is, that " she kept on her way on the south of the channel, and a few minutes before the collision she put her helm " hard a-port," and that, by doing so, she did ivhat ivas required by law and the rules of navigation, and all that was in her poiver to keep the channel clear for the steamship. It will be observed that she does not justify under the 19th article by stating a necessity for a departure from the rule. On the contrary, she asserts a right to adopt the regulation appHcable to sailing vessels meeting "end on" or nearly "end on," when port is the rule. The pilot, most unfortu- nately, mistook one rule for the other, or, if he did not he certainly misapplied it to the case of a steamship meeting a saihng vessel. Notwithstanding this, I have felt anxious that the Charles Chaloner should have the benefit of the 19th rule if, under the circumstances, porting, instead of keeping her course, was justified by any special circum- stance, or necessary to avoid immediate danger, and have submitted to the assessors the following questions : 1. The sailing ship Charles Chaloner being bound by the 18th sailing regulation to keep her course, was her departure from the rule by " porting her helm," and putting it " hard a-port " afterwards, necessary at the moment of time it took jilace to avoid immediate danger and collision ? Chalonkk. 30 ss. quebkc, Charles Chalonek. CASES IX THE VIGE-AUMIHALTY COUItT 2. Was tlie povtiiij,' of the holm of the Charles Chalouer and the putting of it "Juml u-port" reasonably calculated to avoid tiie danger of collision which took i)lace ? The following are the answers : To the 1st— She should have kept her course and not ported her helm. To the 2nd — No. E. D. Ashe, Covimuvder R. N. F. GouiiDEAU, Harbor AI aster. In these opinions I concur also. Mutual error has caused this collision. The sterinship assumed the duty of the sail- ing ship by keeping her course, and tlie sailing ship that of the steamship, the keeping of the cliannel clear, and the consequence was the collision which has given rise to these suits. In sucli cases the rule of Admiralty law would have divided the damage, but tliis has been changed by the Dominion Act 31 Vic, c. 58, s. 6, which has enacted "that where the sailing regulations are infringed in cases of collision, tlie party infringing them shall not be entitled to any recompense whatever." A corresponding provision in the Mercliant Shipping Act was repealed in England, and the rule tliereby revived. Not so here {a). This leaves me no other alternative than that of giving eflTect to the law, which directs tliat both these suits must be dismissed with- out costs to either party (/;). I have gone more into detail, perhaps, than was strictly necessary in giving my reasons for these judgments, but I have done so not only because the amount involved in them and in the case of the Princess Alexandra, also before me, is of considerable magnitude, but because it is desirable that the severe losses which must necessarily attend a disregard of the sailing regulations should be known and felt; and at the same time I cannot refrain from mentioning that these {a) See cases of the Arabian-Alma. 2 Stuart's Adm. R. 81 • also of the Germany-City of Quebec— lb., p. Ifi6. (*) See the case of the Agra, L. R. P. C, vol. 1, p. 501. ? I, FOR LOWER CANADA. 31 es Chaloiier J calculatt'd e? I'se and not • R. N. aster. has caused of the sail- hip tiiat of .r, and the se to these vould have :ed by the cted "that 1 cases of entitled to rovisiou in gland, and 'his leaves to the law, ssed with- 1 cases are characterized ])y the most flagrant errors of tlie s^S. Qui.bec, pilots of these vessels— the one for not kc'L-]iinjn and Chauveau, for the Charles Chaloner. ('/) See StuarfH Ad. R., vol. 2, p. 230. V>) lb., vol. 1, p. 75. Chaulks That-onkh. 'as strictly mts, but I 3d in them before me, irable that , disregard It ; and at that these R. 81 ; also CASES IN THE VICE-ADMIRALTY COURT SS. Quebec Friday, 20th August, 1875. SS. QUEBEC— Bennett. Held: In the Vice-Admiralty Court, that, where a steamer having a clear course altered it, to go to the south, and pass between two vessels, and m attempting to do so collided with both, the fact of one of such vessels having improperly altered her helm, and con- tributed materially to the collisions, will not relieve the steamer from the liability of making good the injuries sustained by the sailing vessel which did not contribute to the accident ; and By the Judicial Committee of the Privy Council, That the finding of the Court below was, upon full consideration or the evidence, correct. The Judicial Committee is strongly disinclined to reverse the dehberate opinion of the Court below, when sustained by the advice of nautical assessors, and founded upon a view of the whole of the evidence. This was a suit brought by the owners of the ship Prin- cess Alexandra, of 1370 tons, for damages sustained by her from the steamship Quebec having come into coUision with her. The collision occurred between the Island of Orleans and Indian Cove, on the morning of the 30th of October, when the steamship was coming up and the Princess' Alexandra was going down tho river, alongside of the ship Charles Chaloner. The Princess Alexandra was struck amidships, and so much damage done to her that she became waterlogged in about twenty minutes, .ad would have sunk but for her timber cargo. The defence of the steamship M-as that the cause of coUision was the act of the ship Charles Chaloner, which vessel, by porting her helm and not keeping her course, had come into collision with the steamship, which was the cause of collision with the Princess Alexandra; and that it was owing to the neglect and misconduct of the Charles Chaloner that it occun-ed. Tliis defence involved several questions under the sailing ruh's, V she cuu] lish thai it was li the saili Tliu C collision lieeii set had ,siil)i 1. W( Alt'xaiid ber last, collision, 2. l)i( Alex!"i(h have i.illi 3. Wli andra an slacken h 4. \V1, Ale.xaiuh'i r>3V(ii'.se, a eieiitly ? And til To tlie steaiii-iliip .she was t 1 tlie ri'iucG J jioi'ted he] -> keej) out o I liave kept I north of tl ^ moro tl an '^ To tlie 'z i rest of this To the li _ i.'i'0]ier tini( FOIi LOWER CAXAD.V. 1 consideration rules, vlii, h reiideml it iiecossavy tliat tlie Quebec, before SS. Qi-hiikc. Hhe couM iivuil Jierself of tlie defence set ui., should estab- ^ lish that, if she were on a course involvinj,' risk of collision, it was her duty to keep out of the way, and on approaching the sailiu- sjiips slacken or reverse her engines if necessary" The Court, after observiTig that the merits of the cases of collision between the Quebec and the Charles Chaloner had l)een settled in the suits between them, intimated that it had sulimitted the following questions to nautical assessors : 1. AVere the steamship (Quebec and the ship Princess Alexandra witii her tug, on the morning of the 30th Octo- ber last, i)roceeding in such directions as to involve risk of collision, and, if so, when did such risk com?nence ? 2. J)id the Quebec keep out of the way of the Princess Alex .Ira and her tug, and, if not, what course should she have , Jlowed to do so ? 3. When the Quebec was approaching the Princess Alex- andra and her tug, was it ueitessary for tlie Quebec to slacken her speed, and, if so, did she do it in i^'oper time ? 4. When the Quebec was a].piN.uching the Princess Alexandra and her tug, was it necessary fur her to stop and reverse, and, if «„, did she do it in pr.^per thne and suffi- ciently ? And timt the following are the answers:— To the 1st.— Tliey were; the risk commenced when the steamship altered her curse to go to the southward, and she M-as then distant about three-quarters of a mile from the Prmcess Alexandra, tliat is, when the Charles Chaloner ported her helm. The steamship Quebec certainly did not keep out of the way of the Princess Alexandra. She shouhl have kept her course straight up the river, passing to the north of the Charles Chaloner, where she would have had more tl au half the channel clear. To the 2ud.— She did not keep out of her way The rest of this question is answered, in the previous answer. To the :-lrd.— It was necessary, and she did not do so in projier time. I) I ^•i CASES IN THE VICE-ADMIRALTY COURT ss\^rEBKc. To tlie 4th.— Whon the (Charles Chalr.ner's hdm wa,s first parted the stciunshi]) sliould have stopjied and reversed astern full-speed continuously, and thereby tlie coHiHion as well with the Charles Chulcj-ier as with the Princess Alex- andra would have been avoided. She did not reverse iti projier time. E. D. Ashe, Commander R. N. F. OoURDEAU, Harbor Master. Per curiam.— The collision with the Trincess Alexandra originated and terminated in the acts and conduct of the steamship. In taking a course attended with risk and by not keeijing out of the way of it afterwards, she was guilty of a breach of the sailing rules establishetl by law, and it is not for her to say, under such circumstances, that because anotl or vessel either met or interfered with Iicr course, and more or less c utribnted to a collision between themselves, she can be relieved from her responsibility towards the Princess Alexandra. She was, therefore, to blame ftjr the collision, and a decree accordingly will issue with costs. The damages to be settled upon the usual reference. This case was appealed to the Privy Council, where it was argued at length. Mu. Butt, Q.C, and Mii. Cl.vkkson^ for the aj)pellants, and Mr. J. Benjamin, Q.C, and Mr.' BoMPAS, for the respondents. In the result, the Lords of the Judicial Committee of the Privy Council sustained the decree of the Vice-Admiralty Court, in the following judg- ment delivered by Sir Robert Piiillimore : This is an appeal from a decision of the learned Judge of the Vice- Admiralty Court of Lower Canada in a case of collision. It appears that a vessel called the Princess Alexandra, a large sailing ship of 1,370 tons, about 11 o'clock in the forenoon of the 30th October last, was proceeding down the river St. Lawrence in tow of a tug, and that ahead of her at first ( 'halont river, a Ajipella I)ort bov off, and the Cha The vess took plai the Prin stem, ha Charles i It is a two coll Chaloner occupied or, at the The ca was to bl force her of room ti that cours secondly, Chaloner, ping and i vented th( The lea Charles C had follow her course tributed to Lordships was or wa case of the The Apj of the case repeat wha 'UT r's holm was I and reversed lie collision as 'rincess Alex- ot reverse in der R. N. • Muster. iss Alexandra )ndiict of the 1 risk and by 10 Avas guilty law, and it is tliat because r course, and 1 themselves, towards the lame for the ! with costs, rence. cil, where it {. Claukson C, and Mr. the Lords of ustained the lowing judg- arned Judge . in a case of Alexandra, a ilock in the ng down the head of her FOK LOWEU CANADA. 35 at first was another sailing shin of 78'J tons, the Charles SS- QuEBEr Chaloner ; that as those twc .ssels were going down tho river, a large steamship, the Quebec, whose owners are tho Aj.pellants in this case, was coming up the river on the port bow of the Princess Alexandra, and about half a milo ..If, and that there was botw- .n the Princess Alexandra and the Charles Chalonor a distance of about a cable's length The vessels proceeded, and the result was that the collision took place in this way : tlie steamship, the Quebec, struck the Prmcess \loxandra amidships on her i)ortside, with the stem, having previously struck the smaller vessel the Charles Chaloner. ' It is admitto.l in this case that the interval between the two collisions, namely, that first of all with the Charles Chaloner, and, secondly, with the Princess Alexandra occupied a very short time indeed, either a few seconds' or, at the outside, a few minutes. ' The case of the Charles Chaloner was that the Quebec was to blame upon two grounds : first of all, for trying to force her way between these two vessels, she having plenty ..f room to go to the northward, and that, if she had adopted that course, the collision would not have taken place • and secondly, when she saw that the other vessel, the Charles Chaloner, was porting her helm, in not immediately stop- ping and reversing her engines, which also would have pre- vented the collision from taking place. The learned Judge in the Court below found that the Charles Chaloner was to blame for porting, because if she had followed the rule of navigation she would have kept her course, and, therefore, that she had by that act con tnbuted to the collision which happened ; but what their Lordships are concerned with to-day is whether the Quebec was or was not to blame upon the grounds stated in the case of the Princess Alexandra. The Appeal is entirely upon the finding as to the facts of the case m the Court below. It is hardly necessary to repeat what often has been said in cases of this description sc> CASES IN Tin; VICK-ADMIUALTY COl'UT SSMji-Kmoc. that tliis lioard ulways ciitcrtaiiis a stroii;,' ilisiiiflination to revowe a .seiitutico IniiiKlcd ,>n the duHhuratu opinion id' thu Judge of the Court lu'low, when that oi.inion has been entirely su.stainod by the advice of his nautical assessors, and when it has been founded ujjon a view of the whole of the evidence. Their Lordshi]iH, after listening to tlio able arguments whicli have been addressed to tlieni, and after careful consideration of all the evidcuio in this case, have arrived at the o]iiiuon that the sentence of Die Couit below ought to stand. With regard to the conduct of the Qiudjcc in passing between these two vessels, their Lordshijis are of opinion that there is quite sulhcient evidence to justify the Court below in finding that the (^)uebee, lieing on the north side, aud having a cleai' coui'se to the north, alteied her course to go to the south and to pass between the two vessels, the Charles Chaloner and the Princess Alexandra ; aud althou'di It may be true, and imjbably was true, that the ' 'harles Chaloner did wrong in ]»orting her helm at the time, yet such au opinion is perfectly consistent with finding that the Quebec was to blame for the alteration of her course described, which must Jiave tended to embarrass and confuse those on board the Charles Chaloner. Vv'itli regard to the second j)oint, their Lordships are also of opinion, looking especially to the evidence of the engineer, which is of the most contradictory and confused character, and looking to the variety of (jrders which it appears were given, that the Court below was justified in find- ing that for not stoi)piiig and continuously reversing her engines the Quebec was to blame, that she did not execute this manoeuvre, which it was her duty to execute, in the proper time and in the proper way. Their Lordships are therefore, on the whole, of oi)inion that it will be their duty humbly to recommend Her Majesty to affirm the sentence of the Court below, and to dismiss this Appeal with c i..ts. r I'liimtion In iliinu of tlu! II liiis bei'ii isessors, and iinlu of tliu uryuinents 'tor ciu'cful II vu arriviMl t)\v oiigliL to in iia.s.siiit^' of ojiiiiioii ' the (j)urt north sidi', jr courso io vensah, tlie 1(1 iihh(ini- ,u,„l]„.r strninHhi,. i,, a shnlUnv ohanncl .,. iho Rivur St. Lawrc.ic ■ niul ji eollisi,,!, ensMcl ; hold, tliat th.' lorin.r for not ke.^pin^' out of tlio way of thu lattor. by a.lontinir a safu uoiu'Ho, was in fuiill, JroGMKNT.— /To;/. G. Okill Stuart. This suit arises from a collision that took place at about fivt- minutes before midnioht on tlie 19th of July last, between tlie mail steamshij) Nova Scotian, carrying a gene- ral cargo and ].assengers— a vessel of 2081 tons, drawing twenty feet three inches of water, and the steamshii) Quebec" of 1903 tons, belonging to the Mississii)pi Dominion Steam- slup Comiuiny. The weather apjiears to have been clear M itii a bright moonlight. They had sailed from Liverpool, and, in the early part of the day, hail each taken a pilot at Father Point and i)roceeded up the St. Lawrence. The Quebec had passed Father Point first and continued ahead of the Nova Scotian, but the speed of the latter being about thirteen knots an hour, while that of the Quebec was but twelve and a half, she gained uj.on the latter gi-adually until after the Quebec had reacheil a narrow part of the channel designated by a black buoy at the east end of the Beaujeu bank, off' Crane Island. The channel there is some- what over half a mile in breadtli, and, at low water, the depth is from three and a half to four fathoms. According to the statement of the pilot of the Nova Scotian, it was then low water. As the Nova Scotian \\as passing the buoy the Quebec was about a quarter of a mile ahead of her and bore about four points on her port bow. The course of the Nova Scotian had been, and continued to be, S. W. i W., and QrKHi;*'. 38 QtTKnEC, CASKS IN THK VICE-ADMIUALTV COUKT tho Quebec, whidi Inid been steering on a siniilttr course. anJ had, neariii;r „„„•« to the bunk, touched the uTomul tvice, chauKed hers to S. W. by W., into deeper water ; and then tho two vessels, about 500 feet apart, came to be, not upon i.arallel btit upon approximate courses, the distance between tlieni beeoniiiifr momentarily less. They thus con- tinued along the Ueaujeu bank— the Nova Hcotian next to it and the Quebec outside of her. They seem to have kc|)t their respective courses without deviation for a couple of miles, i.erhaps more, and then the Nova Scotian, being in tho act of passing the Quebec, the starboard bow of the Quebec took her at the fore part of the mizzen rigging, rubbed along aft, teaiing away the mizzen chain-plates, bending the davit of one of the boats, and ripping the half-round on the port (luarter. For this damage the i)resent suit is instituted by the owners of the Nova Scotian. Which of these steam- ships was to blame, is the question in the case. For t!ie Nova Scotian, the evidence tliat she kept her course, steadily until abreast of the Quebec, is conclusive. Her officers say that she did so, as does also a master mar- iner, one of her passengers, who had been a few minutes before the collision in consultation with a passenger upon a bet that the Nova Scotian would pass the Quebec before midnight— a circumstance which particularly directed his observation towards the course of the Quebec. The master of the Nova Scotian also states that her course was not altered until he ported lier helm just at the moment when collision vas inevitable. It has been proved for the Quebec that she changed her course, when not far from the buoy, from S. W. | W., to S. W. by W., and that she did so from having touched the ground twice in shallower water. That as the two vessels were approaching she starboarded her helm twice, and so much so as the fear of again touching the ground would allow, and then reversed her engines full-speed astern, and that it was when falling astern that her bow scraped along the port quarter of the Nova Scotian. FOR LOWEU CANADA, It ia qiiito true that there is conflictinj^ testimony as to the coiirsH of the two vesHcls when uhnosfc at the point of uontiict; tlio witnesses for the Nova Scotian, iuchidiiifr thtt tniister miiriuor, wlioso testimony has bettn alluded to, express their opinions that the Quebec appeared to lia ve come round upon her port helm just then; and, on the other hand, the persons on hoard of the Quebec, who had the opportunity of knowing, state positively that she did not, but that she starboarded her helm twice, just as the danger of collision was impending, confirmation of which is tolje found in the evidence r)f the boatswain of the Nova Scotian, who says that her master hailed the Quebec to i)ut her helm " Hard a-starboard ; " that he himself repeated the hail, and heard the response from the Quebec—" Our holm is hard a-starboard." Witnesses from the Quebec state that the Nova Scotian, just before the collision, seemed to sheer round uj.on a starboard helm, and they think she did so. These discrepancies as to the one or the other sheering over may, possibly, be reconciled by the fact that these vessels were approaching with great rapidity, and as their hows were converging to a point, their approach to it, in the momentary excitement on each side, may havo 1. d each to suj.pose that the one was sheering over upon LLc. other. Be this, however, as it may, there is evidence, irrespective of this conflicting !,;,.cimony, to settle the question at issue. A chart ui.(,a record shows the depth of water along the Beaujeu bank, opposite to the jdace wliere these ships held their respective courses, and at the i)lace of collision, to be from thr.. fathoms and a half to four fathoms. Where vessels f,t the speed and dimensions of the Nova Scotian and Quebec, run at the rate of eleven to twelve knots an hour, in very dangerous proximity, with from three to four feet of water under their keels,— their safety and the safety of the Uves of those on board require a strict com- pUance with the sai "ng rules, a departure from which neci3.ssarily renders the party chargeable with it answer, able for the consequences. QlTKMEC, 40 QtrEBEC. CASES IN THE VICE-ADMIKALTY COUUT On bclialf of the Nova Scotian, the 13th licfrulation has been cited as jtistifyinfr her course previous to the collision; one M-hich proviiles that " when two vessels imdcr sleain are' crossing so as to involve risk of collision, the ship \\hioh has the other on her own starboard sid(! shall keep out of the way of the other." It is therefore sui)posed that it was the duty of the guebec to stop and let the Nova Scotian pass; but this is not a case of crossing; in the sense of the rule. The Nova Scotian did not intend to cross the course of the Quebec— unless it is to be presumed that she intended to run ashore in the narrow cliainiel-and on beiii i)ass the irrow ])art as (lan^'cr a iScotian the Nova than she n in (inie, )ul(l have ho Nova ng before Foil LOWER CANADA. 41 it ; or could slie have kept out of the way when overtaking Qi-F.iu:r. tiie (^)iieliec in any other manner ? ^' Answer.— l\y slowing her engines just before she reached the (^)Mel)ec, until afler she had ])as.sed the narrow j.lace and the shallow water where the collisit)n occurred, and this would have kejjt her out of the way of collision. 4. Did the Quebec do all in her power to avoid the col- lision ? AnxvYr.—Yon, by starbouJ'ding her helm and stop])ing and reversing her engines fuU-spee.l, and she could do no more. In adojiting this view of the case, expressed by the asses- sors,— Commander Ashe, of the lioyal Navy, and .Mr. tJourdeau, Harbor Master at Quebec, I must, at the same time, state that the (^)ue])ec was justified in keeping her course so long as she did; that when she altered it by star- boarding and reversing her engines, she relieved the Nova Scotian from a dangeroiis jiosition into which she had forced herself by persisting in the course that she had adopted, for if she had not done so the Quebec very possibly would hav(^ striu'k the Nova Scotian aniidshi]is ; the result of which might have been attended with disastrous consociuences to tile Xova Scotian. The (^)tu!bec, moreover, com].lied with tlic lillli Kide, which recpiirtis due regard to be had to any special ciivumstances in j.articuhir cases whieh renders a departure from the rules neces.sary to avoid immediate dan- ger when she reversed her engines. Hut had there birn no sailing regu';.tions at all, the residt of modern ex].erience and necessity in navigation, the jirinciple of law by which the decisi(.n in this case is to be controlled and governed, has been adopted Iioth in the Com, »on Law Courts and the' Courts of Admiralty in England and here also. In tlu' case of Mayhew r.v. Hoyec! it was held that "if the driver of a carriage upon a public road-way adopt either of two courses, one of which is safe and the other hazardous, aiid lie elects the latter, he is responsible for the mischief which ensues; and he cannot, in such case, insist upon the fact 42 Quebec. CASES IN THE VICE-ADMIRALTY COURT that he kept to his own side of the road;" and Lord EUen- borough then said, "if it be practicable to pursue a course which is safe, and you follow so closely upon the track of another that mischief may ensue, you are bound to adopt the safe course. This is the principle which is always acted upon in cases of injuries done at sea" (a). In this Court the same principle was followed in the case of the John Munn (6), and it is the duty of this Court to adopt it on this occasion by stating " that if it be practic- able for a vessel which is following close upon the track of another, to pursue a course which is safe, and she adopts one which is perilous, then if mischief ensue she is answer- able for aU consequences." This suit must consequently be dismissed and with costs. William Cook, for the Nova Scotian. Andreius, Caron d; Andrews, for the Quebec. («) I Starkie's R. 42;{. ('') 1 Stuart's Ad. R., p. 2G5 ' a ? f,. ' FOR LOWER CANADA. 43 lowed in the of this Court it be practic- . the track of [1 she adopts le is answer- consequently B., p. 265 Friday, 12th November, 1875. UNDEEWEITER.-EOBERTS0N. LAKE ST. CLAIR.—CoFFE :. AVTiere there were two sailing ships, one on the starboard and the other on the port tack, and th.; former by a rule of navigation having the right to keep her luff ; Held, in the Vice-Admiralty Oourt, that she was, notwithstanding, in a ca-ne of imminent danger, bound to give way ; and for not doing so condemned in damages and costs. But held, on appeal, by the Judicial Committee of the Privy Council :— AVhen a \y tacked vessel ha.s thrown herself into stajs and becomes helpless, she ought nevertheless to execute any practicable manoeuvre in order to get out of the way of the starboard-tacked vessel. A starboard-tackjd vessel when apprised of the helpless condition of a - , 1 which, by the ordinary rule of navigation, ought to get out of ? i; , is bound to execute any practicable manoeuvre which would f- • iivoid the collision. Both vessels were held to blame for the collision, and the damages ordered to be assessed according to the Admiralty rule. In such a case each party must bear their own costs, bjth in the Court below and in appeal. Judgment.— ^ow. G. Okill St 'art. Two ships, the Lake St. Clair, an iron .ship of 1061 tons, laden with a general cargo, with a crew of 31 persons,* bound for Montreal, and the Underwriter, a ship of 1439 tons, in baUast, with a crew of 23 persons, bound for Que- bec, at half an hour after midnight on the 26th of July last, were off Cape Rosier, in the Gulf of St. Lawrence. The hght at the Cape bore about N.W., and was distant somewhat more than ten miles, the wind was north of west and the night clear. A colUsion then took place between these vessels while the Underwriter was on the starboard tack and while the Lake St. Clair was, as is contended for the Underwriter, on the port tack ; but while, as is said for Under- WRITEIl, Lake St. Clair. 44 TJndkr- WUITER, Lake St. Claiu. CASES L\ THE VICE-ADMIItALTY COURT the Lake St. Clair, she was iu stays. Tlie rate at which tlie Underwriter was sailiiijr at tlio time of the collision was from four to five knots, and that of the Lake St. Clair had been about three and a half. The Lake St. Clair was struck at about right angles, sixty feet from her stern, on her starboard side, abaft the main rigging, by the bow of the Underwriter, which i.assed between her back-stays doing serious damage. In this damage is included the bulg" ing in of seven plates, the breaking of twelve rivetr breaking of the upper plate and another in the bulwf The Underwriter also sustained considerable damage, iu which is com].rised that done to the facing i)iece in front of the stem, wliich was torn oft' from 24 down to 8 feet, the breaking of the bowsprit short oft' at the kniglitheads,'and the tojigallantmast sj)rung. For these injuries suits have been brought by the owners of these vessels respectively to recover an indemnity for the loss sustained, and the question in each suit is, wlio was to blame ? The cliarge of negligence made against the Underwriter by the Lake St. Clair is preceded by a state- ment iu the libel of an occurrence which took place an hour before the collision, and from which an intent to do a malicious injury to the Lake St. Clair has been inferred. At that time, it is said, the Lake St. Clair was on her pre- vious tack, the starboard, and as the Underwriter was then on the port tack and was approaching, but not giving way, the Lake St. Clair, to avoid a collision, had to put her helm down to go about, and, missing stays, hailed the Underwriter to keep away, and, after so hailing, the answer received from her, while passing close to the port-(iuarter of the Lake St. Clair, was, " Look out, I will do for you next time." This libel then goes on to assert the facts attending the collision as follows : — " About a quarter of an hour after midnight, the wind having fallen quite light, the Lake St. Clair put her helm dow!i and went round on the port-tack and had not gathered headway when a flaw of wind took her almost aback, and IT ite at wliicli collision was t. Clair liad I" was struck ;ern, on her bow of tlie stays d()iii. irse of ves- ; the vessel n the star- the Under- i the Lake smpting to latter only but if the lation of a ne tack to being able mes to be ' willingly i Lake St. iderwriter i minutes id it took and that les ahead Lake St. her sails the bows ^here are ister, the 'o of her !t. Clair, ;estify to 30, while :iter was ters dis- Lake St. to keep she also ker, but In the FOR LOWER CANADA. meantime the Underwriter was standing up under the lee of the Lake St. Clair when the helm of the latter was put down (starboard) to keep her to the wind if she got way. In weighing this testimony it is certain that the powers of observ.ition of jjcrsons on board the Lake St. Clair were better, as to what was passing on board of her, than the opportunity had by persons in another ship somewhat dis- tant. Then, in point of numbers, the weight lies with the Lake St. Clair, and I have not been able to come to any other conclusion, subject of course to such influence as the opinions of the nautical assessors may have with me, than that the Lake St. Clair had gained no headway on the port tack, and had it not ^n her power to give way to the Under- writer, wliich she would otherwise have been bound to do under the rule of navigation which has been stated. This aspect of the case would dispose of the responsive allega- tion of the Underwriter to the libel of the Lake St. Clair. In coming to this conclusion I may say that I have not omitted to notice the testimony of the Port Warden at Quebec, somewhat in the nature of that of an expert, who was brougiit v:p to state liis opinion from a certain abrasion on the mizzen -mast and from the way in which the bowsprit of the Underwriter was broken it could not have been so broken by the rigging but by the mast, an indi- cation that the Lake St. Clair was in motion. For this evidence to have been of use it should have gone a step further, and if tb.e Port Warden had said that the mark in the mast and the way in which the bowsprit was broken were sure indications not only that the Lake St. Clair was in motion, but that she was so much so as to be under obedience to her helm sailing on the wind, it would be quite a different matter, but even then such an opinion would be received with great caution in opposition to positive testimony of eye- witnesses. I now approach the consideration of the serious part of these cases wherein a charge beyond negligence has been made against the Underwriter, inferentially, by inserting 47 U.vnKR- WRITKR. Lake St. Clair. 4,S CASKS IN THE VICE-ADMIIJALTY COURT rxDKR- WKITKII, Lakk St. Cl.Ain. a throat in the libel and, directly, at tlie argument by the counsel for tlie Lake St. Clair, who submitted tliat the collision was not only the result of negligence but the wilful act of the person.^ who had the command of tlie Underwriter. Before adverting to the evidence on this head it is proper to state how the rule of navigation upon which the Under- writer lias relied, and under which she was rigidly guided upon the occasion, is to be construed in cases of risk and danger. In a case of collision tried in the High Court of Admiralty Ijetween two vessels, one of which was on the starboard and the other on the port tack, the right of the vessel on the starboard tack to keep her course was fully admitted ; but, said Dr. Lushington, " I have yet to learn that, if there be' any possible means of avoiding a collision, it is not the duty of the vessel on the starboard tack also to port her helm. The rule has been laid down, over and over again, that if two vessels were approacliing each other, it was the duty of both to prevent a collision if ])ossible. Xo doubt there are certain rules as to what they ought to do untler particular circumstances, but the first and primary rule is to avoid a coUision and the hm of proi)erty and life, if it can be effected with safety." (>) The Hope 1 W., Rob, 1..; ^guinent by inittcd that lice but the mnd of tlio I it is proper the Under- idly guided of risk and ' Admiralty ii'board and issel on the itted; but, if there bo is not the to port lier Dver again, it was the No doul)t 3 do under ' rule is to i, if it can urt, it has not to be incur the t adhe.-.iun the testi- )r to keoj) ■ect to the ssed each ast. She ity of the Rob, I,j7. FOR LOWER CANADA. Underwriter to give way, but in doing so it apiX3ars to have been done so closely as within twenty-four feet of the port qtiarter of the Lake St. Clair; and to avoid the danger attending such close tixiarters the helm of the Lake St. Clair was put down i > go about, which occasioned her to miss stays ; and then, as deposed to by persons on board the Lake St. Cliiir, the master of the latter hailed the Under- witer to " keep otf," the answer to which was, " Take your damned ship out of the way ! " " You are a Glasgow clipper; are you ? " " Look out, and I will do for you next time." Tliis was replied to by the master of the Lake St. Clair by the observation, " My friend, you might find we are as hard as you are." " Go to bed, and take a sleep till you get sober." The spokesman on this occasion from the Underwriter appears to have been Mr. Breeze Williams, the chief mate, then in charge of her, who, on his examin- ation, while denying the language attributed to the Under- writer, has stated what he did say, and also what he meant, in those terms. The words I used were, " Never mind, I 'Will have the next tack." I meant that being on the port tack I had kept away from him, but that on the next tack he would have to keep away from me ; that when on the starboard tack I would not give way at aU unless I was certain that he would not give way or keep away at the same time." Twenty-five minutes after this occurrence the Underwriter was ordered on the starboard tack, and it took fifteen minutes to bring her about upon it. The Lake St. Clair was then ahead of her, between two and three miles • and, shortly after, she was ordered on the port tack, and,' wlule endeavoring to come round the red light of the Under- writer was seen approaching and bore about half a point or three-quarters on her starboard bow, and then distant about a-half or three-quarters of a mile. Presuming that the Lake St. Clair was then in stays, as I have already had occasion to say that the weight of testi- mony shewed she was, I shall advert to the testimony on the one side and on the other to determine whether a knowledge ■O 49 Under- WUITER, Lake St. Clair. 60 CASES IN THE VICE-ADMIRALTY COURT Under- WUITEK, Lake St. Clair. of the lielpless condition of the Lake St. Clair was convoyed to the Underwriter in sntHcient time to make it imperative upon her to yield and },nve way by starboarding her helm, or by adopting,' any other course by which tne collision could have been prevented. The evidence for the Lake St. Clair upon this part of the case is, that wliilc attempting to come round on the port tack, and so soon as the red light of the Underwriter was seen, the helm of the Lake St. CI lir was immediately put " hard a-port," in order to keep her away and pass astern of the Underwriter, her after-yards wore sciuared and her spanker brailed in, but she had no steerage-way and would not " pay off'." In the meantime the Underwriter was standing up under the lee of the Lake St. Clair, when the helm of the latter was put down (starboard) to keep her to the wind if she got away, the after-yards were braced up, the spanker was hauled out and set so as not to undeceive the Underwriter, and to give her an oppor- tunity of keeping away— the only means of safety antl of preventing a colHsiou. When the Underwriter had approached within a quarter of a mile or less the master of the Lake St. Clair hailed her in these words, " put your helm up and keep away a little, our ship is not steering and won't keep away." To this the first answer was " Go to hell," and upon a repetition of ths hailing a second answer was, " not a damned inch." The chief mate of the Lake St. Clair then ran down to the starboard waist and hailed the Underwriter three or four times to keep away and he received the same answers. Instead of starboarding as requested, the Underwriter continued on her course, and when within about fifty or sixty feet of the Lake St. Clair, perhaps more, she ported her helm, luff"ed up and struck the Lake St, Clair, as already stated. As the Underwriter was approaching some one on board of her said " you will see who is the hardest," and again, after she was struck, '• now which do you think is the hardest ? " alluding, accord- ing to the master of the Lake St. Clair, to his answer when the vesse I^ake St. out to th( that had "I have The Und three o'eh the Lake the watch why he h answered the Lake t This testii officers an St. Clair; the exact the inqjort moniover, Would hav Underwrite before the further, if moment, tl would have as to say tl Iia^-e cleare httle damaj It therefi from the La avoid coUis the opportu these warni treated with To oppos not includin deck but a and second FOR LOWER CANADA. the vessels first met. After the collision the master of the Lake St. Cliiir, with the view of cleariii},' the vessels, called out to the Underwriter to back her yards, when the voice that had previously come from the Underwriter called out: " I have done for you now, you are goinj^ down easUy." The Underwriter kept by the Lake St. Clair until after three o'clock, when her second mate was sent on board of the Lake St. Clair, and there stated that he had been on the watch at the time of the collision; and when asked why he had not put his helm up when hailed to do so, answered " that he was afraid by doing so ho would strike the Lake St. Clair further forward and do more damage." Thi8 testimoTiy is to be found in the depositions of the ofiicers and of eleven other persons uu board of the Lake St. Clair; their testimony is concordant and varies only in the exact words attributed to the Underwriter, but is, in the import of it, uniform. From the same testimony it is, monsovor, apparent that three minutes after the hailing would have sufficed for the starboarding of the helm of the Underwriter, and that there was double that time to do it before the collision and for her then to go clear; and. further, if instead of luffing, which was done at the last moment, the Underwrit.ir had starboarded, even then she would have gone clear, and some of the witnesses go so far as to say tliat, if ahe had kept her course, she would either ha^■e cleared the Lake St. Ckir or done but comparatively httle damage. It therefore appears that repeated warnings were given from the Lake St. Clair to the Underwriter for the latter to avoid coUision, that the time to do it was ."ufficient, that the opportunity was not wanting for her to do so, and that these warnings to keep away were not only neglected but treated with contempt. To oppose this testimony there is that of four persons not including the master of the Underwrit, r, who came on deck but a minute before the collision ; these are the first and second mate, Sullivan, the man at lu-r wheel, and a 51 Undkh- WRITER, Lake St. Clair. 52 Undeh- WKITKR, IiAKK HT. Cl,Ain. CASES IN THK VICE-ADMrRALTY COURT seaman iiamod Olson, on the Iwk-out. Tl.e Hrst and secon.l mates state thoy did not hear the hailing/ tmrn the Lake St Chiir, and so also does the look-out. except after it was Uu, late they heard the cjill to starboard, that is, after the onlei to port was given hy the first and second matt;, Jiut this negative testimony is most materially weakened, intrinsi- cally, by a contradiction between the mau at the whed and the testimony of the second mate, according to whicji it is apparent that the second mate, who was in charge, not o.dy heard the call to starl>oard from the Uke St. Clair, but liad made up his mind n..t to con.ply with it, as the foll„wing questions and answers, to and frojn tin; man at tlie wheel, show :— Question.— You have statiid that the second mute told you to keep the ship on the course you had got by the wind, and not to mind what any one else said. What did any one else say? Answ, -They were singing out on board the other ship for us to put our helm to sturboard they were singing out forward, but I cannot say wliether it was on board the other ship or not. Question.— About e.;rht or ten minutes previous to the collision did you hear much hailing from the Lake St. Clair or forward of you ?-Answer.-Yes, I heard some shouting out to put the helm to starboard. This man, previous to giving these answers, had stated that he had received orders to keep the ship on the wind, from the second mate, who, as the first mate has said, was enjoined by him, when he gave up his watch, to do so, and after the light of the Lake St. Clair was visible. So deter- mined was the second mate not to change his course that he went aft and repeated the orders while the caU to star- board was coming from the other vessel ; he had time not only to do this but to go forward and return to the wheel before the vessel ported her helm. It is needless to say that the caU to starboard could not have come from the Underwriter as the two mates and the look-out ignore having heard the call at all until after the helm of the Underwriter was put hard a-port. If the man at the FOR LOWER CANADA. wheel heard the evil to slurboiirtl eJKht or ten nuimtes before the collision, no doubt exista but both the second ftud first mute who gave orders simultaneously to port, must have heard it also. A knowledge of the condition of the Like Ht. Clair has been brought home to the second mate by the evidence of several i-ersons, who havo given his answer shortly after the collision when on board the Lake St. Clair, and when the etlect of it was not, perhaps, apparent to him, not that he did not hear tlie call to star- board, or that it was too late, but that he was afraid of striking the Lake St. Clair further forward. And, again, on his cross-examination he has been asked if he heard shouting fn.m tlie '-ke '-i. -l-iir, and, after admitting that he did, l)eing furthf c ;;3ked n he did not answer his rej.ly was, "Probably ] dal, but ' don't remember," an answer that can bear but o-u; constru ; lion. These witnesses are five in nund)er; their e-..v'er.ce is negative in character, they did not hear. Opposed to them is the evidence of witnesses whose statements are positive, and say they did hear the several caUs from the Lake St. Clair, and the answers from the Underwriter, and if this evidence were untrue it is scarcely credible that no one witness out of the three and twenty persons on board the Underwriter would not have been examined to say so by declaring that during the eight or ten minutes before the collision he was in a position to hear, and that no such calls came from the Lake St. Clair, and that if they had, the night being clear, there being but little wind and the sea smooth, he would have heard them. This negative testimony, jiarticiUarly of the two mates whose conduct is in question, affected as it is by the testi- mony of the man at the wheel, leaves no doubt as to the fuU credibility of the persons examined on behalf of the Lake St. Clair, and I find myself compelled to sanction the opinions of the nautical assessors which are to be found in the following answers to questions which have been sub- laitted to them, which apply to each suit ; 63 Under WHITKH, Lake St. Claik. Undku- WRITEn, Lake St. C'LAin. CA8KS IN TIIK VICE-ADMIRALTT COUHT 1. Was the Tjike St. Clnir in stay.s, holplcs.s and iininan- nKoal.le, at and Leforo the time of colli.sion, and how l,.n- ? 2. Was the Undorwritor notified in sudicient time of (he Lake St. Clair beinjr i,, .stay.s, helpless and nnInana^'eal.le, and, if so, could .she liave taken any and xvliat .steji.^ whereby the collision con.j.lained of in this case could and would have l)een prevented ? S. Was either, and which, of the above vessels to blame for the collision ? ANSWKIJS. Tothefimf.—iilM was, and, according,' to the evidence, froni ten to fifteen minutes before the colUsion. To the «mm judgment of their Lordships was delivered by Sir Robert Phillimore. Jl'DliMENT OK TIIR LORDS OK THK JirDICIAI, OO.NfMITTKK OF TIIK I'RIVY i;otlN('IL. This is uu api)eal from the A^ice-Admiralty Court of Quebec in a case of collision which took i)laee between twelve and one o'clock in the morning of the 2(ith of duly in the year 1875. The place of the collision seems to have iK'on off Cape Hosier, in the Gulf of St. Lawrence. The sliips that collided were two large vessels, the I^iko St. Clan-, an iroji ship of I, (Kit tons, with a general cargo and a crew of 31 hands, bound for Montreal, and the Under- writer, a full-rigged ship of 1,481 terns, in ballast, with a crew of 23 hands, bound for t^uebec. The nature of the 66 Undkb- WBITEK, Lake St. Claib CASES IN THE VICE-ADMIRALTY COURT damage inflicted was this.-the Lake St. Clair was struck at about right angles, 60 feet from the stem on the star- board side abaft the main-rigging, the bowsprit of the Underwriter passing between her main topmast backstays and mainmast stays. Both these vessels were on tacks beating up the River St. Lawrence, and the learned Judge of the Court below, after consulting his nautical assessors m a judgment which bears the marks of great pains and care, came to the conclusion that the Underwriter was alone to blame for this collision. With that judgment their Lord- 8hi])s are unable wholly to concur. In the judgment which their Lonlships are about to deliver, they are disposed to assume generally the facts stated on behalf of the Lake St. Clair as the foundation for that judgment ; that is to .say, they are of opinion that she had not any way upon her at the time of the coUision. though they are also of opinion that the Underwriter could not see the state of her canvas, or so discover that she was m that condition. It is unnecessary to go into an earlier part of the history of this case, upon which, though much discussed in the Court below, the determination of this Api,eal, It is now admitted, does not depend The vessels had tacked shortly before the occurrence which led to the collision. At that time the Lake tt. Clair had come round ui.on the port tack, and the other vessel, the Under- writer, was upon the starboard tack, seeing the gi^en light ot the St. Clair. N^w there is no doubt that, according to the geneml rule of navigation, it is the duty of the port- tacked ship to get out of the way of the starboard-tacked ship; but her defence in this case was that she had thrown herself into stays, and that she was helpl. , and unmanage- able at the time of the collision ; and, tlierefore, that the other vessel, though, according to the geneml law, it was Her duty to keep her course, seeing, as she ought to have seen, and knowing, as she ought to have known, the help- less state of the Lake St. Clair, ought to have executed some manaaivre herself,-the nature of which ^^•ill pre was struck on the star- sprit of the at backstays re ou tacks Lined Judge al assessors, it pains and ir was alone , their Lord- 's about to y the facts ndation for im that she le collision, Titer could r that she go into an ch, though lination of nd. The which led had come he Under- [i-een light cording to the port- ■rd-tacked id thrown timanage- that the ■V, it was ' to have the help- executed -vill pre- FOR LOWER CANADA. sently be adverted to,— which would have prevented the coUision. In this case some nautical questions of considerable diffi- culty and nicety are raised, and their Lordships have thought it proper to consult very carefully with their nautical assessora and to put to them certain questions, the results of which I am about to state, so far as they have been adopted by their Lordships. The first question which requires to be decided appears to be the following :— Was the Lake St. Clair, in the cir- cumstances of the case, and having regard to her position relatively to the Underwriter, justified in tacking at all in the face of that vessel? After consultation with the nautical assessors, this question must be answered their Lordships tliink, in the affirmative. They think there was then no reason to apprehend that anything would prevent her safely executing that manoeuvre at that time. The next question is whether, if the Lake St. Clair had come round so as to be fairly on the port tack, and had seen tlie red light of the Underwriter, which is admitted to have been the proper light, and which, according to her own statement, was seen by her at the distance of half to three quarters of a mUe, she was right in the manceuvre which she adopted, or whether she might not have taken steps, which would have enabled her to get out of the way of the starboard-tacked vessel. Their Lordships, after consultation with their nautical assessors, are of opinion that the Lake St. Clair ought to Lave braced her head-yards abox, and not to have hauled her fore-yard, as it is admitted she did, and thus she would have been enabled to give herself stern- way; and, moreover, would have allowed^the Underwriter to go safely ahead. For these reasons their Lordships think the Lake St Clair is to blame. In these circumstances their Lordships have to consider whether the Underwriter was not fairly apprised of the condition m which the Lake St. Clair was, and whether on 57 Under- WRITEK, Lake St. Clair. 58 Undke- WRITEB, Lake St. Clair. CASES IN THE VICE-ADMIRALTT COURT being so fairly apprised, there were not mauceuvrea which she could have executed which would have, on her part, prevented the collision; it being perfectly clear that, though the port-tacked vessel is to get out of the way of the star- board-tacked vessel, and the starboard-tacked vessel is to keep her course, that rule of navigation does not mean, and never has been construed to mean, that the starboard- tacked vessel is to obstinately continue on her course when she sees that, in the particular circumstances, by a variation from it she can avoid a collision. It has been already mentioned that their Lordships are of opinion that the Lake St. Clair did not apprise the Underwriter of her incapacity to take the proper raanreuvres incident to a port-tacked ship by the state of her canvas ; for the fair result of the evidence appears to be that the state of her canvas was not visible on board the Underwriter. But it seems to be a fact in the case, which is well established, that those on board the Lake St. Clair did hail to those on board the Underwriter at a sufficient distance to apprise them of the condition they were in ; this hailing took place when the vessels were, in their Lordships' judgment, so far apart as to allow a sufficient interval of time to warn the Under- writer, if she had attended to the hailing which reached her. It has been suggested that the Underwriter ought to have starboarded her helm, and could so have avoided the colhsion. Their lordships, after consultation with their nautical assessors, are cf opinion that that would not have been a proper mana!u\Te, but that the Underwriter ought to have executed another manoeuvre, namely, to have put her helm down at an earlier period than she did, that is, at the moment when the hailing first reached her, which it is clear she did not do, and which, if she had done, would have avoided the collision,— she would have brought her head to the wind and there would have been no collision. Their Lordships are therefore compelled to find that the Underwriter w: o also to blame for this collision ; and the decree which they will humbly advise Her Majesty to FOR LOWER CANADA. make ^vill be as follows : To reverse both the decrees of the Court below, there being cross-suits in this case, and to declare in both suits that both ships are to blame ; that the damages be assessed according to the Admiralty rule ; and that each party must bear their own costs in the Court below and of this Appeal (a). Langlois, Angers and Colston, for the Lake St. Clair. William Cook, for the Underwriter. 59 UXDER- WRITEK, Lake St. Clair. («) Reported, .36 L. T., n. b. 155. L. R. A, C. vol 2, p. :i8'J. 60 CASES IN TITE VICE-ADMIRALTY COURT Ft-idmj, 25th Fehraanj, 1876. AGxVMEiATXON.-.-MAKTiN. To H'lpport a plea <,f inevitable accident the burden of proof rests upon the pnrty plead'ii- ;>; and he must show before he can derive any beneflt fru; it that '.':,i 'Imnage was caused ir:mcdiately by tbo irre- sistible force of the winds nnd waves ; tbit it was not ..riioe'.Uil by ahy fault, act or omission on i !h par., as ih.j pciacipal or 'iudirp.ot cause; and that uo < uort to counteract ! h.e iiiHuence of iht fucoe was uf.uting. SOS. ^'^^^ ^^^ 3, cause ot collisir.n, jiromoti I by the owner of '•'■^■--■'^ j,h(, i^iarion, under circumstances that occurred iu the harbor r.f Quebec. The foUowing judgment was this day pronounced in the case : Judgment.— ZToTi. G. Okill Stuart. On the 28th September last, fclie Marion, a barque of 703 tons, was ready for sea on a vnyage to Greenock, and came to anchor in sixteen fathoms water, nearly abreast of the church at Levis. She continued there in safety until the morning of the 30th. On the 29th of September, the Agamemnon, a ship of 1,047 tons, likewise ready for seu on a voyage to Greenock, was brought to anchor about half a mile below the Marion,' which was then to the nortli north-west of her. The tide was on the ebb wlien the Agamemnon was so brought to anchor. The depth of water at the place she anchored was about ten fathoms, and the quantity of chain given to her anchor was about thirty fathoms. At about eleven o'clock in the night of the 29th, the pilot in charge of the Agamemnon perceiving that the wind, which had been from the west, had changed to the north- east and began to blo^. strong, had the crew called to give FOR LOWER CANADA. more chain upon the port anclior, by wliich slie was held and in attempting to do so it was found that she would n..t take chain, because, as the pilot at that moment supposed the cable was broken. Her sbirboard anchor was then ordered to be let go, and, after some little delay from the chain not being arranged, it Maa let go ; but ,so soon as the shackle indicating the thirtieth fathom was reached the main pawl of the windlass, followed by the others, broke, the chains became foul, and no more chain could be given to tlie starboard anchor. At the time the starboard anchor was let go the Agamemnon had begun to drift with the rising tide and to cant toward the south. She conUnued to do so for about a quarter of a mile, and then held on to her anchor or anchors untU abort half-past eight o'clock in the morning, when it was slack water. The chains were then cleared so as to give more cable io case of need. The master had been, during the night, and was then, on shore ; a tug steamer, returning from towing a vessel down the rivor, was hailed by the pilot of the Agamemnon, and a note sent him to inform him of the condition of his ship of the necessity of repairing the windlass, atd of the danger of the ship's running aground. The carpenter went in the tug with a letter to the master. At this time the Marion lay about n quarter of a raUe off from tlie Agamemnon riding upon her port anchor to the !:orth of her, and the \essels remained in these positions until ten or half-past ten o'clock. The tide being then upon the ebb, and the wind strong, the Agamemnon began to drive again, and, after doing so for about a quarter of an hour, she 'came down upon the Marion, striking her with her bow on the port quarter, and then both ships went adrift, and after the Marion had let go her starboard anchor, continued to drag their anchors for some time, when they held, but for about two hours they remained in collision, and the Marion appears to have sustained very serious damage, an indem- nity for which is the object of this suit The plea of the Agamemnon is inevitable accident, the action of wind and weather, a via major. Gl AOAMKM- N0.\. r.2 A(;amem- NON. CASES IN THE VICE-ADMIRALTY COURT The facts, aa they have been stated, are taken from testi- mony adduced for the Aoameuinon, and it may be here noticed that there is no discrepancy of moment in the statements of witnesses, except as respects one. vi^., that the Marion drifted upon the Agamemnon, but this was abandoned at the argument. From the evidence derived from the same source, it appears that the wind, before, and at the time of the coUision, was not blowing a gale but was a very strong breeze, yet not so strong but that a ship could ride safely upon a single anchor. It was not so strong as to prevent the towing of a vessel, supposed to have been the Dagmar, which had been towed down the river by the returning tug already mentioned. After the vessels were separated it was discovered that the Agamem- non had lost her port anchor, and her windlass wal found to have been so defective that the pilot broke out rotten pieces from it with his fingers. To support a plea of inevitable accident the burden of proof rests upon the party pleading it (a)-and in this instance it was for the respondent to shew before he could derive any benefit from it : 1. That the damage was caused immediately by the irresistible force of the wind and waves. 2 That it was not preceded by any fault, act or omission on his part as the principal or indirect cause, and 3. That no effort to counteract the influence of the force was wanting (6). If the persons in charge of the Agamemnon failed in any one of the. above particulars, she is liable for the consequences of this collision, as no fault is to be imputed to the Marion. Before deciding upon these points several questions have been submitted to the nautical assessors with whose assistance the Court has been favored. The questions and answers are as follow : (a) The George, 9 Jurist, 282. 220, 1 L. C. Adm. R. The Cumber. 4Notesof cases, 161. i„nd tk Th Tho w ia tt /•A^ TT,„ r» \ -L. „x „. ' ' ^°' "*® Harold Haar- (*) The Despatch, 3 L. T. (N.8.) fager. lb. vol. 2, p. 208. FOU LOWER CANADA. QnesHon. Was the selection of the berth given to the Agamemnon l.efore she began to drive a proper one and consistent witli her safety. A nswe.r. It was. question. Was tlie quantity of chain allowed to her port anchor, before and after she drove, sufticient, and what may have occasioned the loss of her jiort anchor? Answer. Before she began to drive it would have been prudent to have had more than the thirty fathoms, and as much as sixty. When she began to drive, the second anchor should have been let go with sufticient cable to stop her. From the evidence, we believe that the port anchor was parted at the time or before it was attempted to give her chain cable on it, because she would not then take cable. This was about midnight, before the collision Question. Did the breaking of the windlass cause or contribute to the collision, and how ? Ansicer. It did, as it prevented enough cable on the starboard anchor being given to prevent the Agamemnon irom driviiiy. Question. Considering the position of the Agamem- non between eight and nine o'clock on the morning of the cohsion, when in her power to employ a tug. should the pilot m charge of her, as a matter of prudence, have done so, and thereby could the collision have been prevented? Answer. Between eight and nine o'clock in the morn- ing, before the coUision, the Agamemnon being too near the south shore, the windlass disabled, and her cables foul the person in charge of her should have employed a steamer to stay alongside untU her anchor was weighed, and until she was towed by the steamer into a clear berth. E. D. Ashe, Commander R. N. F. GouEDEAU, Harbor Master. Under each of the three foregoing propositions the Aga- memnon appears to have been in fault. It has been said that the state of her windlass was not visible and was 6;! AOAMKM- NO.N. 64 AtlAMtlM- NON. CASES IX THE VICE-ADMIHALTY COURT unknown to the persons in charge of her. If such were the fact it would afford no legal excuse, but there is strong TPn.-on for the belief that they did know it. It had been ut, i: ,.utly repaired, and if its insufficiency was not kiiown, the persons who repaired it would, most probably, have been called to prove it, whicii was not done. The case of the Massachusetts (a), determined in the High Court of Admiralty, may be referred to where the insufiiciency of weight in au anchor led to a condemnation in damages in a suit of colV: .a. i l,c -ase of the Peerless, where the catch- ing of a cable in a windlass and the non-employment of a tug were questions, in connection w ith a plea of inevitable accident, might also be consulted (6). A decree must therefore go against the Agamemnon as alone to blame for. the damage done by her to the Marion to be settled by the Registrar and Merchants, and costs. Cook, for the Promoters. Holt, Irvine and Pemberton, for the Kespondenta. (a) 1 W. Lob, 371. (*) I" bli.a. 30. FOB LOWEB CANADA. 65 Friday, 28th ApHl, 1876. N. CHURCHILL-RouTCH. NOIiMANTON.-LEiTcii. which wa« then keeping her courHe nLtL ^ u ,""'" °* *^' '''""«'• ing her «pcc.l, which br , -ht he l;rosI1h '^'^'" 7'^''°"'^ «"^>'- helm of which was shortly IfT ^ °"'""'"' °^ ^^^ ''»'q"«. the occurred- "^ "" '"""'^^ starboarded, and a collision bro^Iht the'baC Shlttr^^' ^7°'*'''^ »>" •>oln.. having into in«unt and 1st hl,n to^ "^^^^ ^*"^ ^«P* '^"^ <'°»»e) %; and the ^^Ze TZV^TT'"'^'''^''''^^^^ i-^volviu, risk of collis.^n!!U t!.' ^^'"^ Proceeding in a direction over, to stop and rev rsTw^H'^^P °"' "' '''' '''''' *''^' '»°'«- for the collision. °*" """ imminent, was responsible 4er i^l7i:X„ra;^^^^^^^^^^^ ^ -^'-es . oonsiderabi, JuDOMENT.-^cn. (?. OyfciW ^<„ar;. AcilisioTi between two vesspl<» nnn » * other a sau.ug ship. occuLd Tn i I '^""" ^""^ '^' ^^ *^'"'-'«-'- ft ha, rivvn ° i ."""'"^ "' *" »«* November 1.,, steamship of 543 fr,n, Vv. f Nornianton, u uoe 0, p.rc.: t= ::a"::iir adon w.th a cargo „, ,^, ,. „„, ^^^ second\a,Tl t«' e«W by Robert Curwen and oti™, owner, of e ba™ne' N. thurehm, a vea.1 of 59s tona. laden wia a ca^ o^ F OG CASES IN THE VICE-ADMIlULTy Col HT ^' ^ll"'^" 8^"'"- ^" ^''•^'*"'' ""'ts the parties inturested, respect ively, NoBMANTON. ""P"te fnult the ono to the other, and dciimiid cuiniteii- satidu in damages. The Ndriiiauton sank in deep Mater within twenty iniuuteH after tlie eollisidn, and is a total loss. The N. Churchill liad barely tini(( to reach the harbor of Little Metis, without sinking also, and there she wufl ])eached. The magnitude of the amount involved renders these cases a matter of more interest than usual in such matters, and no pains have been sjiared in order U> arrive at an accurate determination nf eacli case. Before adverting Uj the points on whiih the parties are at issue it is fitting to state facts admitted by each ; or, if not admitted, so plainly proved as to allow of no question. These are, that on tiie morning of the sixth of November, the weather was moderate; there was no diffi- culty in navigating the St. Lawrence where the collision occurred ; its breadth there was about 25 miles, afi'ording ample sea-iiujm upon its entire breadth ; the barque N. Churchill was descending the river on a course east by north, under all jdain canvas, at tlie rate of four knots an liour ; at the ^ame time the Normanton, upon an opposite Course, was ascending the river, under a full head of steam, at the rate of between eight and nine knots an hour ; the combined speed of the two vessels thus exceeding twelve knots : the Normanton when between a quarter and half a mile of the N. Churchill, which was then keeping her course, ported her helm without slackening her speed, which brought her across the course of the barque ; th(! N. Churchill, shortly after, starboarded her helm, and her starboard bow struck the Normanton on the port side for- ward of the bunkers with the result already stated. The principal difficulty has been in relation to the green or starboard light of the N. Churchill, anil all other ques- tions in these cases are in a measure involved in it. For the Normanton, it is said that the N. Churchill's green light •was invisible and that she shewed a white light only, before the collision. If this be true and that the Normanton was led into ( for which which W(i N. Churc conse(iuei The qui N. Churcl: board and 'iistance I hiive port the helm and, if it justified a danger ? The evi mucli pap( Upon the been exam N. Churchi N. Churchi collision hi that her grc a chimney, while there leading to tl tliis white and not th( persons wlu aniined ; Ko of her, and a wliite ligh out a "ligh and when tl of these thr the Normani of her omitt( evidence to I Iu(i int( FOIt LOWER CANADA. » onor 1111(1 mistook the siiiliiiL' sli 67 . , . , « 1- .or a steamship, N. ohurch- for wh.eh H n,a.thoml whit, li^ht wan the ,.ro,>er o„o. and xcL^.'^to. which would havo ,justitie.l lu-r ,,.,rtiMK her hell., then tho '"■"•^'"^•^''• W. Churchill w..uld be t.. blame and au^.wurablB for tho conswjiiences of tlii.s collision. The .luestions raised by the plea. lings are : 1. Had the N. C lurchill the rcKulation side liKhts. the green on the star- hoard and the red on her pnrt si.le. visible at the proper 'ItHtarice before the colliHi,,., ? 2. Should the Normanton li'tve ported her helm ? And 3. Had the starboarding of the helm of the N. Churchill any eflect upon her course, HUd, If It had, were there any special circumstances which justihed a departure from it in order to avoid immediate danger ? The evidence which is common to the two suits covers much paper but may be compressed into a small compass, tpon the side of the Normanton twelve witnesses have been examined, seven taken by iicr from tho crew of the N. ChurchiU and five from her own crew. Those from the N Churchill, including her mate, who at the time of the collision had her ia charge, liave for the most part testified that her green light was defective because its burner wanted a chimney, because the green glass was cracked and dim while there was a white light used in the cook's gaUey- leading to the inference, without it being expressly said, that this white light was the one seen from the Normanton and not the green. To strengthen this statement three persons who were on board the Normanton have been ex. smined ; Koy, her " look-out ;" Normand, the mate, iu charge of her, and the man at the wheel. These testify to seeing a wlute light only just before the collision when Roy caUed out a "light ahead," when the mate answered "I see it" and when the helm was instantly ported. The testimony of these three ignores tho fact that a light was seen from the Normanton before that, of which the person in charge of her omitted to take the ben, ngs or even to notice The evidence to this effect is to ba found in the depositions of 68 CASES IN THK VICK-ADMIKALTY COUKT N. Church- the reirmiiiiiig two witnesses brought up for tlio Normanlon. NoRMANTON. i't'o'iin'i'; » seiiiiiaii, WHS juiciiig her deck forward of the blinkers, and about ten minutes or a (luarter of an hour be- fore tlie look-out lioy hailed a " liglit ahead " and saw what he took to be a bright white light. He has furtiier said that he heard the "l(K»k-out " hail sonietliing to tlie ])ridgei which he could not understand in the Frencii liiiiguago, but he looked over the port sitle and saw the liglit aliead, tiis- tant about a mile and a half or two miles and iieuid no answer from the bridge, JJrown, the cook, iieard also the first hailing from tlie " look-out," but heard no response either. The " look-out " must have ^ecn this light and sup- pressed this fact, whicli light, unnoticed further, was allow- ed silently to apju-oacii, until a collision was imminent, and then the steamship p(»rt(Hi lier helm. Again, tlie evidence of the seven witnesses already referred to jilainly shows tliat the statement of the three witnesses from tiie Norman- ton, so far as it goes to pnn'e that then! was only a wliite light to be seen from the X. Cliurcliiil inimediately before the collision, is not to be credited, because tiiey iiU say tliat the gi'uen and red lights were in their jJaces, and could be seen, some say half a mile and others a mile oil". One of tliem, Thompson, wlio was ou the " look-out," and was sent from the forecastle to the foreyard U) look at the light of the Normanton when first seen, to ascertain whether she was a steam or sailing siiip, was in the best {losition to see the lights ; his own language is, " they were both burning brightly when I saw them that morning, as well as ever they did, 1 am sure they could both be seen more than a mile off. I know that our starboard light was not as bright a liglit as the port one, because a green light will never burn as brightly as a red one. The green liglit shewed a good light, as good as 1 have seen on a good few V(^ssels that I have been on. I never noticed there was anything wrong with it." If the evidence of these twelve witnesses be alone taken into consideration it is sullicieiit to d. termine that the gi-eeu light of the N. Churchill was visible so as FOB LOWER CANADA. 69 to Ix" swn from the Normantoii, a milo distant, and that the N. Ciinm h- pcrsons on hoard of the latter were culpahle, eitli.'r ior not nob!!ianton seeing it or for not ascertaining,' what it was. This would preclude tiie slightest idea that a small l.and-liKht in the cook's galley, kept hehind the huhvarks and hehind the sid(i-lights, could he taken for a masthead light of a steamer. But the evidenc*^ adihioed for the N. Ciiurehill iu the matter of the lights is most conclusive, as shewing that her gnuTi and red lights are i.f the very hest descrij. tion; that they \\ere so is j.roved hy a certificate from the Secretary of the Hoard ,.f Trad., at Liverpool, and apart from tiie testimony of persons on hoard of lier it is estahlished hy witnesses indifferent to the parties that these hghts wen. seen at a distance of five miles from the pilot sdiooner which took off h.-r pih,t the evening i,rec...iing tlie collision. There can he no douht, tlierefor(>, hut that the question as to the lights of the N. Clnirchill heing suflicient, must he decided in the afhrmative. The N. (Jimrchill, now heing on lu'r course with her side Ughts hright and visihle, the rules of navigation made it tlH! duty of tiie Normanton, a ateamsliip, wliile proceeding ni a dn-ection to involve risk of collision, to keep out of her way. Slie was as much as three points upon the starhoard bow of tlie N. Churchill when she jiortod her helm, a fact sworn to hy witnesses for the Normanton, and one which would induce any one to say that if she had kept her course or starboarded she would have gone clear and free of the N. Churchill. And, again, when she ported iier helm another rule required that, danger heing then iiiimiiumt she should have stopped and reversed. That the Normanton infringed the rules that have been referred U>, rules which are prescribed by our own law and to be found in the Act of the Dominion respecting the navi- gation of Canadian waters, there can be no doubt; audit 13 eciually clear that there was no circumstance which ren- dered a dei.arture from ihein necessary, ami therefore she 18 deemed to have been in fault. But it does not necea- 70 CASES IN THE VICE-ADMIRALTY COURT . • Ch^"««h- sarily follow that this alone would entitle the N. ChurchiU NoBMANTOK. ^ & Compensation for her loss. This will depend upon tlie answer to be given to the third of the questions alrea.iy stated. Her duty was to keep her course, unless special circumstances rendered a departure from it necessary so as to avoid immediate danger; and 'f ,ohe did not do so, and thereby contributed to the collision, she would be in fault also and her owners precluded from recovering in this suit. The evidence on this head is to be found principally in the depositions of the witnesses examined for the Normanton. One of them, the mate of the N. Churchill, after stating that he saw a white light about five miles ahead, goes on to say: "Tlie N. Churchill was then on a course of east by north, the wind wa^ from the same direction as when I went on deck, and we were still under all plain sail. The vessel showing the white light, and which afterwards proved to be the steamship Norraantuu, appeared to be steering west or west by south ; we were making about four knots an hour and the approaching vessel about eiglit or nine knots, I should say. We kept on the same course for five or ten minutes, and during all that time the Normanton shewed us only her white light. When I first saw it, I took it for a light ashore ; about five minutes afterwards I bjcame suspicious of it on account of its altering its bear, ings. A few minutes afterwards I went forward, and think- ing it was a steamer's mast-heatl light, I sent a man aloft, William Thompson, who was on the 'lor>k-out' to ascer- tain the fact. He went on the fore-yard, and had been aloft but a short time when he sang out it was a steamer. I went aft, and by the time I got there, I saw myself that It was a steamer shewing her green and white lights about three quarters of a mile off, and bearing about three points or a little over, on our sttirboard bow. I oI^dered tlie man at our wheel to keep his course, that the steamer was all right. Scarcely a minute or half a minute after that I noticed that the steamer had altered her course and was crossing our bow, or attempting to cross it, shewing her red FOR LOWER CANADA. light and her masthead light. Her hull was thea visible, and she was about four or five lengths off, still on oui- star- board bow. After altering her course, the steamer bore about a pomt and a half on the same bow. As soon as I saw that the Normanton had altered her course, I ordered the man at the helm of the N. Churchill to put our lielm up, that IS, to starboard. Before that we had been steering our course of east by north. The helm was immediately put hard Uy starboard by Peter Johnston, the man at the wheel; it took but a few seconds to put the helm ' hard-a- starboard.' I do not know how many points our ship paid off under this helm. I did not notice that she paid off at all. At this time the Normanton was close upon us and actmg as if under a port helm. She continued to shew her masthead light and red light from the time we starboarded untd the coUision occurred, which was from half a minute to a minute afterwards. It was our starboard bow near the stem that first came in contact with the steamer's port- side forward of midships as near as I could judge." The Tnate of the Normanton also seems to have been of opinion that the starboarding of the helm of the N. Churchill was the proper course, as he says that he called out to her wlien withm a distance of about two hundre.l feet "Hard over on board that ship," and immediately after "Hard a-star board ;" and the " lock-out " of the Normanton has said that after the mate of the Normanton hailed her she did not appear to change her course. There evidently could have been little time to do r as appears from the statement of another witness for tht , rmanton of the name of Hughes who was on board the N. Churchill, who has said that when the Normant(;u came heading on to the N. Churchill she opened out both her side-lights, and afterwards showincr only her red light; and both her side-lights were visible for " only two or three seconds." Considering the velocity with which these two sliips were approaching each other there could not have elapsed more than three minutes from the time that the Normanton ported her helm until her 71 N. Chcrch- IhL, NOKMANTON. 72 CASES IN THE VICE-ADMIRALTY COURT UL. attempted transit across the course of the N. Churchill was NoR«A^TOK. «JWd by the collision. Until within this sliort period, the N. Churchill, as her mate has stated, was pursuing her coui^e m safety, she was then brought into instant and the most imminent danger, and whether she should have then starboarded her helm is a question more for nautical than legal skill to determine. This, with other questions, has been submitted to the gentlemen with whose aid the Court has been favored. The answers to them are as follows :- 1st Queshon.-Tveyions to and at the time of the col- lision, was there on the starboard side of the N Churchill a green light so constructed as to throw an uniform and unbroken light over an arc of the horizon of ten points of the compass so fixed as to throw the light from right ahead to .wo points abaft the beam on the starboanl side and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least two miles, and at «ie same time was there a red light on the port side of the iN. biiurchill of similar construction and power to that above mentioned ? Ansiver.— There was, without the slightest doubt 2nd Qv.estion.~On the morning of the 6th November la^t how far could the green and red lights of the N Churchill be seen by the Normanton when approaching' and at what distance should the "look-out" on board of her, with proper vigilance, have seen either and which of them before the collision ? Answer.- According to the evidence they could be seen at a distance of above two miles in the state of the weather at the time, and, with proper vigilance, her green light should have been seen at a distance of at least two mSes Irom the Norraanton, '6rd Quedion.-At the time when the green light of the iV. Churchill should have been first seen on board the Nor- nianton, what course should the Normanton have adopted so us to keep out of her way, and at that time was there a proper " look-out" on board the Normanton ? irchill was ort periodi rsuing her nt and the have then tical than Jtions, has the Court bllows : — the col- Cliurchil], form and points of ^ht ahead ie and of iitwith a 3S, and at de of the to that bt. ovember the N. 'caching, board of which of be seen weather m light .'o miles t of the be Nor- idopted there a FOR LOWER CANADA. 73 An^er.-She should have starboaitled her helm so as N. CHuncH- to give a M.de berth to the N. Churchill, and we are of , '^''• opinion that a proper « look-out ' was not kept by the Nov. ""^""^"^"^ raanton before the coUision. 4thQuestion.-.When did the risk of collision commence. i V thP^ . ''' '"' "^'' ^'^P^ '^^"^^ ^--"^ '^^^ taken Dy the JSTormanton to prevent it ? Answer^-^The moment the Normanton port<3d her helm Sh/.h t '?r" ^'^'^^^^^^d, and her porting caused it. Sh should at the same moment, have stopped and reversed ImlT ' ''"' "' *'"'• "^"^' ^^ '« P--'^^^ the ^th Question Kai the starboanling of the helm of the N. Churchill the effect of changing her coui.e before the collision so as to contribute towanls it. and were it not for such starboarding would the collision have been avoided ? Answer.-The starboarding of the helm of the N ChurehiU may have slightly altered her course, but not so as to contribute to the collision. The collision would certainly have occurred without the starboaitling m QuesHon.~W^ the starboarding of the helm of the JN. thurchiU a proper course, and would her keeping her course have prevented the collision ? jl««M;.r.- Under the circumstances the proper course wa to starboard, and we are of opinion that if she had ported or kept her helm steady the only difference would have been to strike the Normanton further aft 7th Question.~Bid the N. Churehill stand by the Nor- nianton after the collision so long as a due regard to her own safety would permit ? Anawer.—She did Answer.—She was. E. D. Ashe, Commander M. K. F. GouRDEAU, Harbor Master. 74 N. CASES IN THE VICE-ADMIRALTY COURT While participating in these opinions and impressed with Chubch- iLL, r . - " NoBMANTON. "^'^ convictiou that proper vigilance and good seamanship 'was manifested on board the N. Churchill, and that the reverse was the case on board the Nornianton, there is a feature in the case of the Normanton which was forcibly- brought under the notice of the Court at the argument, and which this Court cannot pass over without observation. The N". Churchill was forced to abandon the i^.osecution of her voyage, and returned to Montreal. There difficulties took place between her master and the mate, and also with the six of her crew whose evidence has been referred to. Wliile these difficulties were g!»i!igon it was supposed that valuable information could be obtained from them by the Mitchell Line of Steamships Company, and the Hon. Peter Mitchell was induced to enter into communication with them for the purpose of obtaining it. These persons were not only placed out at board at the expense of the Company, at a rate of a dollar and a half a day for up- wards of three weeks, but other expenses were paid, their litigation with their master was encouraged by the payment of their law costs, gratuities and refreshers were given to the men, and, finally, their passages home was paid. These amounts are far more than were allowable to these persons as witnesses, and although Mr. Mitchell has been examined as a witness and sworn that the payments of these sums were not given to pervert the truth, but from the fear of these witnesses leaving the country, and of the Company- being deprived of their evidence if they left, it is to be observed this apprehension was unfounded, as is apparent from the fact that the men were at law with their master, and that from want of means they could not leave. Such is the summary and efficacious mode of proceeding in this Court, that with due diligence at any stage of thti suit the depositions of these witnesses might have been taken with- in four or five days upon a proper application. And if this laatter is now noticed it is to prevent its repetition. In any case coming before this Court such practices will FOR LOWER CANADA. 75 bring such discredit on the testimony as will ranterially N. Church. affect its credibility. Another consequence may be that norI,a''nton the suitor will be led into error by misrepresentation of facts mysteriously hinted at, made to extort money, and not true, as has occurred in this case, and institute a suit upon the belief of them. That in this way the Company have been imposed upon there can be no doubt ; and it is equally certain tliat if they had been aware of the facts that have been abundantly proved they would not have provoked a litigation necessarily attended with very serious conse- quences. The judgment of the Court is, that the suit against the N. Churchill be dismissed with costs, and the suit against the Normanton maintained with costs, the damages of the N. Churchill to be established upon reference to the Regis- trar and Merchants in the customary manner. Andrews, Oaron and Andreivs, for the steamer. Langloia, Angers and Colston, for the barque. Note. In this cause, leave was granted to appeal to Her Majesty in Her Pnvy Council ; but the appeal aeserted was subsequently aban- 76 CASES IN THE VICE-ADMIRALTT COTTRT Celeste. Tuesday, 2nd June, 1876. CELESTE — Wbioht. A ye««el collided with two lighters endeavoring to raise a sunken steam-tug, broke the chains which connected them with the wreck, «ent BuI comsifn ' "''' "" ^°'^'^"^°^' '"^ *'^ "''^•''- --'^"^'^ ^-- On the reference, the Registrar and Merchants allowed the promc ters all expenses incurred in endeavoring to raise the sunken tug, during the four weeks preceding the accident, on proof only that the money had been duly expended. Upon objection the report was overruled, and it was hold that it waa necessary for the promoters to go further, and to establish not only the actual expenditure, but that such expenditure was adapted to the purpose for which it was made, and had enured so much to the benefit or the promoters. O.I?"' '*!,"" '"^ * ''^*™ "'" "^'"P"*^^ *^« principles of evidence appli- cable m ordinary suits come into play. Appeal from a decision rendered by the Registrar and Merchants, on a reference to them ordered by the Court for the purpose of assessing damages. Judgment.— .ETow. G. 0. Stuart. A judgment has been rendered in this court against the owner of the barque Celeste in favor of the St. Lawrence Steam Navigation Company for the damages by them sus- tamed as owners of the steam vessel Arctic while she was lying on the bed of the river St. Lawrence at the depth of 120 feet. To settle the amount of these damages a refer- ence to the Registrar and Merchants was ordered. Their report has been made, and is now contested by the respon- dents. It appears that tenders to raise the Arctic had been advertised for, and that one made by Pierre Fradet was accepted by the promoters. He accordingly commenced work by timber, o were susj of June, auccessfu anchor, a which we so occasi( sideration By an report ger in particu ing to rai four week The obj less, that i that by m the steam tlie mone; vouchers 1 Upon tl The firs labor allov it and, if i Secondl; suitable to The issi upon the p hire and la adapted to of the pron («) The Cla FOR LOWER CANADA. work by placing two batteaux, lashed together with pieces of timber, over the sunken steam vessel from which chains were suspended pa?' " / under the keel. On the nineteenth of June, 1874, abouu lour weeks had elapsed without a successful result, when the barque Celeste dragged her anchor, and, driving across the batteaux, broke the chains, which were lost, and sent the batteaux adrift. The damage so occasioned is the subject of the report now under con- sideration. By an act on petition, objections have been taken to the report generally, and to three items allowed the promoters m particular ; these are for expenses incurred in attempt- mg to raise the Arctic during the period above mentioned, four weeks preceding the collision. They are as follows :— For barge hire $1,118 00 Labor 221 45 Steamboat hire 162 75 Making a total of. Sl,502 20 T he objections to this sum are, that the work was use- less, that it was unattended with any beneficial result, and that by means of it no progress had been made in raising the steam vessel. The answer to these objections is that tlie money was paid for the barge-hire and labor, and vouchers have been filed which establish that it was paid. Upon this contestation two questions arise : The first is whether the steamboat and barge-hire and labor allowed for, has the value which has been assigned to it and, if it had. Secondly, would it be the proper measure of damages suitable to the case. The issue raised by the pleadings made it incumbent upon the promoters to establish that the steamboat, barge hire and labor not only had a given value, but that it was adapted to the purpose and enured so much to the benefit of the promoters (a). Instead of this, the promoters have («) The Clarence. 3 W. Rob. 254. 77 Celeste. 78 Oblestb CASES IN THE VICE-AIJMIKALTY COURT confined their evidence to the actual payment, and for them it wa3 stated at the argument that the allowance of the same by the Kegistrar ami MercHanti uu8 presumptive evidence of it8 value. No doubt it would havr been, if the Items in question bad not been objecte.i to before tli.'m, and in that case they would have been admitted. But so soon as their value was disputed the principles of evidence applicable in an ordinary case came into phiy, and proof of their value before the Kegistrar and Merchants wa« indis- pensable to the success of the promoters. In the absence of affirmative testimony there was evi- dence by the respondents, not ..nly to negative the value of the work, shewing it to have been useless, but also leading to the behef that it would have been better if , ,t done at all. Before adverting to the statements of witnesses for the respondents, some facts stated by Augustiu Gaboury, the secretary of the prom.jters. may be stated. It appears from these that while Fradet, their contractor, was four weeks at work previous to the collision, several of their directors expressed donhts as to his success, that lu that time he had succeeded in passing chiiius under the Arctic and in moving her a little ; that he had used small chains which broke, and then he had to place larger and stronger ones m their place, and that he had made a first attempt to float her and two or three others afterwards, without success. Then this comes to be more fullv explained by evidence of the respondent. Mr. Davie, a ship builder who has b.en for many years employed in raising wrecks' appears to have given particular attention to the work of Fradet; he adverts to the light description of batteaux employed by him (of the burthen of a thousand deals) to the fact that after three weeks he had not been able tJ raise the Arctic to the surface, or to move her in any way perceptible, and, to use his own words : " I always said that the batteaux first employed could not raise the Arctic they were not fit for it, and I considered their labor use' less. I ferry sti knew th lision, ai on the cl batteaux was on." Then t to have 1 employee and then by Frade the batte they beg! position, i that, 1' he she had r direction,' two battt occurred i that collia The ma evidence particular contradict Fradet up beyond th a greater c sanction tl would, in the responi As the I steamboat, lision, it re measure o: not wilful, 1 is to recei\ FOR LOWER CANADA. less. I saw the biuuaux ;if work who n I crosf in the ferry stc nor from Levis, Uiron or four times u iiiv. I know that it was bhiwing a gule on the night of the col- lision, and I believe that if there had been such a strain on the chains as would be reciuired to raise the Arctic, the batteaux would have been swamjMjd with the swell that was on." Then there is the evidence of Claude Oigiu're, who seems to have had some experience in raishig vesselH He was employed by the promoters before they n 1 for tenders, and then passed Uw. first chain under hei h was used by Fradet afterwards. He has sworn as .uws : " I saw the batteaux employed to raise the Arcti., and just after they began I noticed that the vessel was going out of her position, down into deeper water and up the stream. After that, "hen four batteaux were working at her, I saw that she had moved, but I cannot say how much, in the same direction," and, further: "I do not think that if there were two batteaux attached to the Arctic when the coUision occurred she would have been moved at the bottom by that collision." The matters to which these persons have testified, the evidence which they have given where skill in their own particular profession was involved-evidence, moreover, not contradicted— leaves no doubt in my miud that the work of Fradet up to the moment of the collision was useless, and, beyond that, detrimental, as having forced the Arctic into a greater depth of water. If with this evidence I were to sanction the three items which have been referred to, it would, in my.opinion, amount to a gross injustice upon the respondents. As the promoters are not entitled to the three items for steamboat, barge hire, and labor, which preceded the col- lision, it remains to be seen wljat their indemnity is, or the measure of damage to be awarded. When a collision is not wilful, the rule is « that the owner of the injured vessel IS to receive a remuneration which will place him in the 79 Celeste. \ MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) A APPLIED IfVMGE I ^^ 1653 EasI Moin Street S'^ Rochester. New York 14609 USA '-=5 (716) 482 - 0300 - Phone ^= (716) 288- 5989 - Fox 80 Celeste. CASES IN THE VICE-ADMIBALTY COURT situation in which he would have been but for the col- hsion," (a) or "recover so much as will repair the injury sustained by the misconduct of the defendant." (b) Now It has so happened that there has been allowed by the re- port,-upon the evidence of Fradet, who haa sworn that it took eight days to put tJie chains in the same place as they were before the collision, and two days, or four tides or thereabouts, to put the steamship in the position in which she was before-a sum for that very pu^ose, viz., $980.80 to which IS to be added a sum of $309, 35, upon evidence scarcely sufficient, but which cannot be questioned now as no opposition seems to have been taken to it j this last sum IS made up of items allowed for tJie brii^ging the Arctic back into 120 feet of water from 150 feet, into which it is said she was driven by the collision. These sums, with iwo others for chains that were lost by the coUision, and for timber, amounting to S550,52, wiU be aUowed, and the three items already mentioned, which have been con- tested, amounting to $1502.20, must be expunged By the report thus altered, the promoters are aUowed what it has cost to reinstate them. The report is ordered to be modified so far as rendered necessary upon this change with costs of the contestation in favor of the respondents. ' Solt, Irvine and Pemherton, for owners of Celeste. Andrews, Caron and Andrews, for the promoters. Ja^ Pritch, Dig. 694, in Note 61 ,(6). Sedgwick Measure of Dam., FOR LOWEii CANADA. 8J Friday, 10th November, 1876. FRANK.— Petersen. Bid .—l. A ship sailing- seven knots an hour in a fog over flshinir ground on the banks of Newfoundland, without adequate means on deck to prevent accident, Leld to have been in fault, and a plea of inevitable accident overruled 2 Where the blasts of a fog-horn on an American schooner were substituted for the ringing a bell, as required by the sailing regula- tions, a plea that it was done in accordance with a circular from the Secretory of the Treasury of the United States overruled. But the breach of the regulation not having contributed to the accident, the schooner relieved from liability. 3. An omission to ring a bell in a fog. covered where an anchor light was seen in time to avdd a collision. This was a cause of damage, promoted by the owners of an American vessel, against the Norwegian barque Frank under the circumstances noted in the foUowing judgment. ' Judgment.— ZTow. 0. 0. Stuart. A collision between two foreign vessels, the Norwegian barque Frank, of 340 tons, and the America fishina schooner Job Johnson, of 64 tons, upon the Atlantic ocean" has given rise to two suits, promoted one by the owner of the schooner, and the other by the master and several of the crew. Between the hours of two and three on the morning of the 16th of July last, the Job Johnson, about three-fourths laden, lay at anchor on the Grand Bank of Newfoundland in latitude 45' 43' north, longitude 50« ol' west. The wind was moderate and her head was to it S. W. The Frank, on a voyage from Glasgow to Montreal carrying all sail but the fore-royal and the main-top-gallaut staysail, was on the port tack, steering W. N. W. ^ W She then came into collision, striking the schooner with G FBA>fK. 82 CASES IN THE VICE-ADMIRALTY COURT JI2 2 Stuart's Adm. R., App. p. 325. 8S Frank CASES IN THE VICE-ADMIRALTY COUUT lution given below of the Board of Supervising Inspectoi^ of Steam Vessels :— •• Be it resolved, that the President of the Board of Supervisnig Inspectors respectfully requests the Secretary of the Treasury to instruct CoUectors of Customs on the sea- board and lakes to issue to each sailing vessel with its proper regular paj.ers two copies of the fog-horn signal rules adopted by this Board, to be framed under glass and hung m some conspicuous place on said vessels. The rules referred to are as follows : — " 1. Whenever there is a fog, by day or by night, the iog signal described below shall be sounded. "2. Sailing vessels and every craft propelled by sails upon the ocean, lakes and rivers shall, when on the star- board tack, sound one blast of their fog-horns ; when on the port tack they shall sound two blasts of their fog-horns- when with the wind free or running large, they shall sound three b asts of their fog-horns; when lying-toor at anchor, they shall sound a general alai-ni. In each instance the above signals shaU be sounded at intervals of not more tlian two minutes." Mr. Howells. Consul of the United States at Quebec has given a certificate that this circular would be received by any Collector of Customs or similar officer of the Lmted States as a genuine and authoritative oi-der from the Department of the Treasury. He has been examined also to prove the signature of the Seci-etary of the Treasury at Washington, and has said that this regulation was made by a Board of Supervising Inspectors under an Act of Congress, which, he believes, is the same as stated in Nos 4404 and 4405 of the Eevised Statutes of Congress. 1873-4. I have looked at this citation, and do not find any power there delegated to inspectors to alter the sailing regulations established between England and the United States, but I see there a power given to inspectors to regulate steam vessels. I do not think, therefore, that the schooner Job Johnson was relieved by this circular from I FOB LOWER CANADA, the ringing of a bell. Great Britain and the United States, as well aa this Dominion, have adopted the sailing regu- lations. They have been made to ai)[>ly not only to sea- going vessels, but also to the great lakes bordering on the United States and Canada. Norway has assented to them, Mith many other European powers ; and it is very much to be regretted if the fishermen on the banks of New- foundland have been misled by the circular. It has been proved in this case that the fog-horn is in use on the banks, and men of long experience there, as fishermen, say that they have never known the bell to be used. The term "general alarm" directed by the circular, as applied to a small fishing schooner, to be created every two minutes upon the Atlantic Ocean, is a tenn of doubtful meaning. I should hardly imagine it to be a fog-horn, unless accom- panied by other sounds, perhaps not within the power of a small vessel to make. If I have particularly alluded to this part of the case, it is because a departure from any one of the sailing regulations, no matter what, whether for a better one or an equivalent, may mislead other vessels. If other vessels are misled, and it is easy to conceive such a case, where a bell is not rung and a blast of a fog-horn substi^ tuted, the deviation may have a disastrous effect upon important interests. A more lamentable case than tlie present cannot be found, if the persons interested are to be deprived of their remedy in consequence. If there is a class of men whose industry, attended with constant ex- posure of their lives, furnishes an indispensable articleD food to a large portion of the human mce, who require protec- tion, it is the fishermen of Newfoundlan;! • and it is to be hoped that if they are laboring under juurance of the law that they will be informed of it. If the use of the fog-horn contributed to the collision, the loss would be divided. But the second mate of the barque has said he mistook one signal for another, while he states that the course which he would have followed in the one case and the other would have been identical. 81» Fka.nk. 00 CASES IN TUB VICE-ADMUtALTY COURT j^iANK^ Unfortiinatt'ly, ho adopted noither The .schooner was iihead of the 1 the one nor tlie other. >mi\u', and liis (hity wun to rut the liehn to iKjrt, und yet he .starhoar,h,d. I e:imu,t see, therefore, that the soundinK of a fog-horn instead of th<^ ntiKuiK of the hell made any dilference. or in the least degree oontrihiited to the eolhsion. Bnt could rh.iiht he entertained as to this view of the case, there is another asj.ect nnder which it may r.e regarded as c.nclusive, iiTespective of fog-horn or hell, and that is tinder the sailing reguhition resi>eeting lights. The 7th article provides that a white light, not exceeding twenty feet ah..ve the hnll, sliall designate u vessel at anchor. It IS proved that the .schooner liad a white light, as pre- 8crihe to the master's cuhin and return to the helm, finding the schooner even then half a ship's len^jth otV. This con- firms the testimony for the sehcMtner that the lijrlit from her could Ih) st!cn half u mile distant, or, if not so far, quite far enough to steer clear. It is in evidence that the haniue yields very readily to her helm, and a very slight turn of the wheel at that distance, the light being " right ahead," would have sjjared the schooner. If any errtjneous impression rested on the second mate's n)ind produced by the fog-horn, there was reasonable time, if he had been e(iual to the occasion, for its removal after the light was seen. He was then in the i»osition that he would be in clear weather, and by not steering clear of the schooner, the barcjue on this ground alone would be liable for the con.sequences. The following questions submitted to the nautical asses- sors, Commander Ashe, K. N., and Mr. Gourdeau, the Que- bec Harbor Master, enable me to dispose of this case in accordance with the views which I have expressed. 1. Was the quantity of sail carried by the barque Fmnk and her speed before the collision with the schooner Job Johnson, on the morning of the 16th of July last, too much, considering the state of the atmosphere, and the place where the collision happened ? An8wer.~We think it would have been prudent, as the weather was foggy, for her to have shortened sail, there being usually fishing schooners on the banks of Newfound- land. 2. After the fog-horn from the Job Johnson was heard ou board the barque the first time, or after it was heard the second time, or after the Job Johnson's light was seen from the barque, was there sufficient vigilance shown on board Fkank !)2 Pbank. CASES IN THE VICE-ADMIRALTY COURT of the barque under the circumstances ; and could any pre- caution required by the ordinary practice of seamen, or by the speed circumstances of the case, have been adopted on board of her so as to prevent a collision ? Answer.-No, there were not proper precautions taken. When the fog-horn of the schooner was heard the first time the watch of the barque should have been called on deck to Shorten or trim the sails. When the schooner's fog-horn was heard a second time ahead, the helm of the barque should have been ported, and after her light was seen, her he.m should have been kept " hard a-port.» After the light ot the schooner, which designated a vessel at anchor was seen there was time to have avoided the collision by port- ing her helm. J f^ ^ 3. Did the use of a fog-horn instead of a bell on board the schooner cause or contribute to the collision ? Answer.-m, if there had been a bell rung and heard ahead or « nght ahead " the course of the barque should have been the same, comsi^T "" ^'"""^ ^ ^^"""^ '"'^""^^ ""' ^" P^^'*^ ^«^ "»« An.wer.-.The barque Frank wa^ entirely to blame for the collision. Per Cvriam. I agree with the opinions thua expressed and pronounce for the damage sustained by the promoters in each ease with costs. M. J. Bradley, for the Job Johnson. Jt. Alleyn, Q.C, Counsel. BUincM and Pentland, for the Frank. FOR LOWER CANADA. 93 Friday, loth December, 1876. EOSA— Gill. RANGER— Topping. 1. A steam tiigr proceeding the river St. Lawrence met two barques, and, in passing between them, came into collision with one, which ported her helm. Held, that the tug was in fault for not keeping out of the way :— And the barque to have been to blame for not keeping her course. 2. Admissions of a master of a ship respecting a collision being per- tinent 10 evidence against Iha owners, although mad» after the colli- sion and extra-articulate ; but the party .ffected i give counter evidence. Judgment.— Fow. G. Okill Stuart. A collision between the twg steamer Ranger, of 152 tons and 75 horse-power, owned by the St. LawTence Steam Navigation Company, and the Rosa, a Norwegian barque of 710 tons, belonging to Andreas H. Kiar, has occasioned cross-actions now to be decided on their respective merits. On the 3rd of June last, between five and six o'clock in the afternoon, the Ranger apjiears to have been in search of vessels from sea to tow them. With this object, proceed- ing under steam at the rate of between seven and eight knots an hour, she was about a mile alwve the St. Lawrence Point wharf, about nine miles below the city of Quebec, on the south side of the Island of Orleans. The wind was strong from the N. E., the tide was flood in the stream and had begun to ebb along the shore. Two barques were, at the same time, sailing up the river, and were about the same distance below the wharf as the Ranger was above it. They had all their sails set, and, with a fair wind, their speed was from ten to eleven knots an hour. One of these banjues, Rosa. Ranoku. 94 CASES IN THE VICE-ADMIRALTY COURT Rosa, Ran«er the Svadnfare. was in advance of and nearer to the shore about half a cable's length abreast of her, and continuing her course about the fourth part of a cable's length, until about opposite the wharf, her stem came into colliL; with the por bow of the Rosa, the result of which was that both bows of the Ranger were carried away, and an openin. made m the bow of the Rosa 9 feet square. The Lmer C °^^\^"\^^^-« «'- «-W reach, the shore, but the latter reached the city of Quebec. The damage done was so senous as to make the decision of these suits of con- siderable interest to the parties. The Rosa is said to have been damaged to the extent of 812,000 and the Ranger perhaps more, if one may judge from the report of survey upon her after the coUision. ^ bee?ir'' '' """^""^ "P'" ''' '^' ^'-^"^^-^ ^^' *hat she had been put upon a course to pass between the two barques where there was sufficient room for her to do so. but that the Rosa, when bearing several points on her starboard bow and several cable's lengths off. suddenly changed her course to the north, and was crossing the Ranger's bow. when the colhsion occurred, which was caused by the Rosa's not Keeping her course. The case as stated for the Rosa is. that the two vessels were each keeping a steady course, the Ranger down, and he Rosa up the river; that for a distance of about two iiles the Ranger bore straight upon the Rosa's bow until, when between twoor three of her own lengths from the Rosa, the pilot of the latter, to avoid immediate danger, ported her he m. but befoi. she could pay off two poinl. 'th^ Zigt wi hout slackening her speed or reversing her engines, .^th full steam ou ran into her. an accident which could have been avoided if the Ranger had passed to the port side of tan Rosa to the south. 7 ^^^^^^^^^^^^^^^'^ the parties to these suits then are: 1. That the Ranger did not keep out of the way of the Eosa. which, as a steamship, she should have done and 2 tT to the shore e Svadilfare continuinir ength, until llision with IS that both in opening rhe former re, but the i done was its of con- lid to have he Ranger of survey ■t she had barques », but that oard bow, ber course when the Rosa's not vessels own, and wo miles til, when Sosa, the Tted her Ranger, les, with lid have t side of len are : r of the and 2. FOR i,ow CANADA. 95 That the Rosa, a sailing vessel, did not, as was her duty, keep her course, which would have avoided the collision. In the first proposition is involved the case of the owners of the Ranger; and in the second, that of the owners of the Rosa. One of the rules of navigation imposes upon a steamship the duty of keeping out of the way of a sailing ship when proceeding in such directions as to involve risk of collision. As the mode of doing so cannot be prescribed for every case, the responsibility of adopting the proper one must rest with' the steamship. Another rule is, that every steamship, when approaching another ship so as to involve risk of col- lision, must slacken her speed, or, if necessary, stop and reverse. Upon the observance or non-observance of these rules the suit against the Rosa must depend. Then there is a third rule applicable to the suit against the Ranger : that, where, by the above rules, one of two ships shall keep out of the way, the other shall keep her course, and upon the application of this rule the suit against the Ranger will depend. I shall apply the two first rules in the case against the Rosa, and the third in that against the Rajiger. The result will be the judgment in each case. The witnesses of the Ranger, fifteen in number, for the most part persons on shore, have expressed opinions as to the bearing of the Rosa upon the Ranger when she ported her helm, the critical moment which preceded the collision They vary in their statements, not only as to this but also upon the distance between the two vessels at the time. The persons on board of the Ranger may be suppcs^d to be most accurate upon these points, and therefore their testi- mony requires particular attention. The master has said that he saw the Rosa a mile ahead about four points on his starboard bow, he was steering a straight course down the river to pass between the barques, that, when four cable lengths oft; the Rosa steamed a little to the south, when the Ranger's hel a was put a little to the north ; the Rosa then Rosa, RANf;i;R. 96 CASES IN THE VICE-ADMIRALTY COURT ^ tU ?1 rfu T ''^^' P"'"'' ''^ ^'' «*^^boaTd bow. that the helm of the latter was then put " hard a-port," and her a he deck and called out to the ongineer. "donneztoute la steam ; put on all the steam. The statement given by the pilot of the Eanger is, that the Eosa when a httle less than a cable's length off (720 feet), and the length of a cable and a-half to the south came up as on a port helm, in his opinion, bearing four or' five points upon the Ranger's starboard bow. when her master rang to stop, and not a second after, to reverse This witness also ran to the opening over the engines and called out to the engineer to put them back, the answer to which was. we are backing aU we can." Then the action of the engines reversed neutmli2ed the power of the helm, which had been nut "hard a-port." and the head of the Ranger did not vary until the collision. The second pilot of the Ranger has testified that he was at her wheel, that she was steaming from seven to eight knots an hour, that before her helm had been placed so that he might go to the north of the Rosa, as the master has sad, the pilot was desirous of going to the south, and ordered him to go to the south, in other words, to por his helm, which he did ; that with the sea going she would not steer so as to go to the south ; that she steered very badly that afternoon, owing to the swell that was on; that it was next to impossible to steer her with two men at the wheel After he received the order to go to the south, and before the masters order to go tothe north, the pilot had ordered the course stmight between the two barques; that when the master ordered the course of the Ranger to the north the Eosa was about two arpents (360 feet), half a cable's length from the Kanger. and then her wheel was put completely to he north, which would be hard a-starboanl ; immediately afterwards the Rosa took a sheer to the north towanls the Eanger. then about an arpent (a quarter of a cable's len^tli •le's lengths bow, that t," and her m opening nnez toute ler is, that h off (720 ;he south, Qg four or when her erse. This md called to which on of the tn, which e Ranger it he was to eight d so that .ster has uth, and port his )uld not y badly ■t it was ! wheel, fore the ired the fien the rth the length pletely diately ds the length / i m LOWER CANADA. distant), .„d the,, U,e ,„a,ter ordered the engines to stop and back at the moment of coUision Oi^osedto tljis testimony is that of the persons in charge of the llosa. Her master ha. said that he did not take much not.e of the Ranger, until within a ^il, coming bow on. as neai- as he could see. He kept his eye on her because she was sheerin, about, either from steering badly or from bemg badly steered. She would steer a little to port, come up again, and then sheera httle to starboard and and this witness was expecting that the Ranger would keep' instead of that she kept playing before his bow rather a little on his port side as if she wanted to speak him. "Seeing hat a colh^ion was likely to take place if we both continu d ou r spective courses," he has said, "I considered that the ship up to the north by porting our helm, as the Ranger did not por her helm." Tliis done he has added: "We had hardly time to sheer two points to the northward when ZtTrrrT ^^ — ---tion he has sa that If the Rosa had not ported her helm the two vessels would have met " bow on." distant ''!r '''"' ""7 '"' "" ''^ ^'"^^'^ ^^-^ - -iie distant ; the course of the Rosa was then west, she was about 110 fathoms from the shore. The Ranger appeared to be coming down at the rate of nine or ten knots an hour hen a point on the Rosa's port bow. Previous to the o"' hTRos! Vf' "' '" " ''' ^^' ^^^^^- ^^ ^he sail of the Rosa, and lower m the water. If the Ranger had con- tmued her course, as when he first saw her, she would W gone three arpents clear to the south of the Rosa, where there was a good half mile of channel for her to do ;« The man at the wheel also lost sight of the Rosa a short t^me before the coUision; the order to port he received u 97 Rosa, Ranuee. 98 CASES IN THE VICE-ADMIRALTY COURT ROHA. Ranoer. "just previous to the collision ; it was obeyed some seconds, not quite a minute, before the collision." Before this the Eosa was steering straight up the river, and did not sheer. Upon a comparison of these conflicting statements the truth can be so far discovered, that when at a distance of about a mile apart the safest and best course for the Kanger to adopt was to port her helm and go to the south ; that her pilot endeavored to do so and could not, that for the purpose her helm was unmanageable ; that the master then deter- mined to starboard her helm to pass to the north, and after- wards almost simultaneously, the helm of the Eosa was ported. The evidence of the second mate of the Eanger, who was at the wheel, which is a m'edium between extreme state- ments, appears to have been given with impartiality, so much so that, although in the employ of the Eanger, he has declined to give his opinion as to which vessel was in fault. The distance at which he states the vessels were apart when the Eosa ported her helm was about an arpent, or 180 feet. Whether under these circumstances the Eanger kept out of the way of the Eosa, the two vessels meeting ufjon a combined speed of a mile in less than four minutes, is a matter involving questions of nautical skill for nautical men to decide. Then did the Eanger slacken her speed or stop and reverse her engines in due time ? The statement made by her second pilot, in no way contradicted, that she was ungovern- able upon her pnrthelm rendered a greater degree of caution necessary on her part. Her master, and several of the wit- nesses on her side, have said that the Eosa was not steering well either. Taking this for granted, although disproved] it would be an additional reason for the greater care on the part of the Eanger and for feeling her way so gently that she could upon the instant slacken or reverse her speed. The evidence on this part of the case must come from the engine room. It is certain that after the bell rang to stop and instantly after to reverse there was danger of immediate collision. This is manifest from the master tirst, and the pilot FOR LOWER CANADA. afterwards, running to order verbally that which had been already d„ne by bell. It is said for the llosa that when the order to reverse, either by bell or word of mouth, was given, the second engineer was confused, and understood the order "Donnez toute la steam " to mean full-speed ahead, and not astern, and by acting on it caused or accelerated the col- lision. This the second engineer has denied, and has said that he M'as not confused. The chief engineer, who went into the engine room afterwards and helped him to reverse also denied that the second engineer made the mistake,' although, he says, that he was confused, and would have' done so if he had not prevented him. Then, there is the evidence of the master who has said tliat the order to reverse was given and afterwards " Uonnez toute la steam," which meant " full-speed astern." The following question to this witness and his answer to it are upon record. Question.— Is it not true that you, on the Island of Orleans m the presence of a number of persons, on the evening of t'lo day upon which the collision occurred, or the foUowina evemng, stated that you had given the order to reverse ;'full.speed astern," but that the engineer, or whoever was m charge of the engine, either through ignorance or con- fusion, mistook the order, and put the engine "full-speed ahead ? " ^ Answer.— m, nor anything of the kind. To discredit the testimony of this witness a number of persons who were on the island have been examined, and asked if they had had any conversation with the master of the Ranger in which he stated how the collision occurred A witness of the name of Damase Pouliot was in the house of Mr. Grenier between four and six o'clock on the even- ing that the accident occurred, and has sworn that Grenier asked Captain Topping, in the presence of several persons whose names he states, how the collision happened to which he answered "I rang the bell to reverse, the first engineer was not there, but the second engineer was ard he did not understand me ; instead of reversing he sent ahead " 99 Rosa, Ranokb. 100 CASES IN THE VICE-ADMIUALTY COURT CI think he said full-speed). "When I saw that he did not lUKlerstand me I ,«„ quickly to tell hin, by word of mouth, but it was too late." On the same evenin-^ in the store of a person of the name of Laprise, where so,ne of the eflects of the lianger were put, at about ten o'clock a per- son of the name of Delisle has sworn that the master of the lianger, when asked as to the collision in the presence of several persons whose names he has given, answered "the slui. was coming with a fair wind, that the wind was very strong, that when it blow strong he could not steer his steamer as he wanted, that he rang to reverse and he sent her ahead," without saying wl,o, when Francois I'otdiot said "You were then in the wrong," to whi.h the answer was "yes, I think I was in the wrong, because he was on the r.ght side (bon bord)."' Again Francois Pouliot has sworn that on the night of the collision, on board of the Kanger wl -n the master had brought together several per- sons to stop the hole in the lianger, the master, in answer to a question from him, .said :_" It was the movement which failed me, I wished to speak to the ship. For that pur- pose I stopped the steamer ; when I saw the steamer a httle near I rang to reverse, the second engineer did not understand me, and went ahead full-speed, and when I saw that he did not understand me, I called out to him to send her back and he had no time to do it before the collision. I should like to know what pilot was on board the barque." I asked him "why," he replied "on account of his sheer to the north " I then said "was jt on that side he should have sheered" and he answered "yes, and that makes the matter worse'" And then a witness of the name of Grenier, the day after the collision, was told by the master of the Hanger that he rang to reverse, that even then it was too late, and he was not understood. These declarations of the master of the Eanger on four different occasions have been objected to as not binding on her owners, as being extra articulate, and because they were made after the collision. They were received by the FOR LOWER CANADA. Registrar to discreilit tlio oviaeuce of the mister, but it is tho duty of this Court to admit tlimn not only for' that pur- pose, but also as evideuce binding on the owners (a), on the principle that the declarations of an agent are evidence against his principal." Subject, however, to this limitation that tins Court in receiving evidence of such admissions, if pertment to tiie issue, extra articulate, will afford an oppor- tunity to the party who may have been surprised and desires an opportunity of meeting the extra articulate evi- dence to counter-plead and produce evidence on the counter- plea. Had it been demanded in this case the opimrtunity would have been allowed. Before submitting to the assessors the questions that suggest themselves upon this testimony, I shall advert to the case of the Rosa against the lianger. Of the fifteen witnesses examined on the side of the Kaiiger quite a number, as well those on the wharf as those on board of her, give it as their opinion that the Kosa, if she had kept her cours s would have passed clear without accident. Then there is the evidence of the pilot on board of the Svadilfare, who had but passed the Ranger when the collision occurred. His statement is " when tlie Eosa and the Ranger came into coUision the latter was three and a half or four points to the north of her course direct going up the river, and the Ranger was at the same time following a straight course going down," and being asked to what he attributed tlie collision, his answer is, "In my opinion if the Rosa had kept a straight course 'there would have been no accident. Wiien I saw the Rosa sheer to the north it was then too late for the Ranger to avoid her." Opposed to this there is a statement of the master of the Rosa, who stands alone in his opinion, that if he had not sheered, the Rosa would have struck the Ranger "bow on." If it be true, as he has stated, that at a inile distant, that is, within about four minutes of the collision, 101 Rosa, Ranokr. ('/) Tliu .Manchester, 1 Vf. Robb &>. -The X.'ptime tb.' .'-i ', 1 Dod 102 CASES IN THE VICE-ADMIRALTY COUUT R0«A, Ranger. the RanKcr was but a little on his port-bow and was danoing _ occasionally from port to starboanl and from starboaixl to port, ho knew, or should have known, that he hud the choice of goin« to port or starboard. Had the liosa waited a few seconds longer before porting her helm, th<. Uanger would m the opnuon of a large number of persons, .lerived from' personal observation, have passed clear of her. If the Rosa by porting her helm in any degree contributed to the col- lision, which she certainly did if by keeping her course she would have avoided it, she would be in foult, althoucrh the Ranger might be eqtmlly or more so, for approaching too near without proper precaution. The questions which I have submitted to the assessors- Commander Ashe, of the Royal Navy, and Mr. Gourdeau, yuebec Harbor Master, with their answers, are a.s Mlm :_ l8t Question.-Comidering the statements of the second pilot at the wheel of the Itanger : l-That the course first given by Lachance, her pilot, was to pa.s3 between the two banpies, and that her helm w*is steady for that purpose 2— That the intention of the pilot was afterwai-ds chau-rod and the helm was placed to go to the south of the Rosa' and 3_That the Ranger steered so badly that she would not obey her helm to go to the soutli of the Rosa • was there not time and space for the Ranger, when her helm wa^ ported, to have gone south of the Rosa without a collision, if she had obeyed her helm, and the Rosa had kept her course ? ^n*w;er.— Certainly there was. 2nd Queiition — It appearing in evidence on the side of the Ranger, that when she was distant about two arpents from the Rosa, then almost straight ahead of her, but a shade (ua petit peu) on the starboard bow, which would be nearly « end on," could the Ranger, if the Rosa had kept her course, have gone clear of her, if the Ranger had per- sisted m passing to the southward of the Rosa, and had obeyed her helm ? Answer. — Yes. FOit LOWCR CANADA. 3rd Qneation.— Taking into consideration the combined 8})eed with which the two vessels were approaching each other, and the defective hehu of the llauger, was it consis- tent with a due regard to safety, that the Ranger should have approached so near the Rosa, nearly " end on," before she starboarded her helm to go to the north, without slack- ening her speed ? ^W8«;er.— Certainly not, it was running the greatest risk. 4th Qiieation.— After the bell rang on board the Ranger to stop or reverse the engines, was there such a mistake in executing the order to reverse that the Ranger was sent fuU- 8i)eed ahead instead of full-speed astern ? Ansiver.- We are of opinion, according to the evidence, that such a mistake did occur. 5th Question.— If there was such a mistake, was the collision caused thereby ? Amwer.—Cousidenng the short space of time within which steam tugs with paddles can stop their speed, and, in i^.his case, the strong easterly wind against the Ranger, we think, according to the evidence, that if the mistake had not been made at the time it was made, the collision would not have happened. 6^/i Question.— Was it in the power of the Ranger to have kept out of the way of the Rosa and to have avoided the collision which took place ? Answer. — It was. 7th Question.— Should the Rosa have kept her course, or were there any special circumstances which rendered it proper for her to deviate from it to avoid immediate dan- ger? Answer.— We think she ought to have kept her course, as it was impossible for her to see on which side the steamer intended to pass, although we consider it doubtful whether the collision would not have happened if she had done so, and we do not see any special circumstances to justify the deviation from it. 103 ROHA. RANoriK. Rosa, Ranokr. CAHKS IX THE VICE-ADMIIULTY COUUT mQue.tion.~Wa. ,he Ranger or th« Rosu. and which or both, f,o hlamo for tl.^^ <:nj)i.sion ? Armrer.-W^ are of op>ruu„ that the Ranger was U, ti.a the Kos. was to Mame for not keeping her course. at w Inch the assessors have arrived, and in doing so I must «ay that, after the most atU3ntive conside.ntion of the v donee, I have been led to a thorough conviction that tl^ Ko.su wou d have avoided the collision by keeping course and aye to add tl.at if there w.re any doubt', n the subject. I CO not think that this Court wJdd be ju t fied ,n g,v.ng the benefit of it to the Rosa. To recov r for her loss all doubt as to her exemption from fault muTt be -noyed, and the slightest contribution to the coll i u would preclude her fn>m recovering an indemnity from the owne,. of the Ranger. The judgment which theLv d re : rrr'tr^ is in fau,, is to dismiss each su.t wuTou cost (/>)_tl e course adoj.ted in the case of the Charles c ::rr; ''' ^"f?" ''''-' -cry analogous to th case ot the Rosa agamst the Ranger. Andrews, Caron and Andreiva, for the Ranger. Blanchet and Pentland, for the Rosa. (a) The Schwalbe.— Swabey Adrn. U. Mi. (6) The Arabian — Alma— 2 Stuart L. C. A. R. p. 72. lb IGO. FOR LOVVKR CANADA. lo: Friday, \Mh March, 1877. FRANK.- rKTEUHEN. run proraotorn havinpr htnlod and prov.d th.ir Ioks in United StnU-g onrnuicy, the U.,KiHtrar an.l M.^rchant. r..p.,rt..l an c..,uival..nt .unuunt in (fold, not, at the curnmt rnU- «f ..xuhnnR.., In.t at tl.o ratr as „n the day of tho Polli.ion. Thu Court upou conU,Htation maintained the rt'jiort. Prr Curmm.—Jn this case jiidpinont was rendered against the Frank for having sunk the sciioonor .Toh John- son on tho banks of Nowfoundland. The damages have been reported upon by the Registrar and Merchants as follows :— For the schooner, her tackle, apparel and furni- ture and cargo, 89,!)29.70, from which is to be deducted discount on United States currency on IGth July, 1870 date of loss, at 10 per cent., 8992.97 which leaves a sum of 88,93(].73. To this allowance the owners of the Job Johnson have taken exception, so far as respects the discount on the United 3tates currency, and, in a contestation of the report, have pleaded that the amount of 89.;)29.70, should be paid at the rate of exchange at the time of payment. That the rate of exchange having fallen five per cent, since the col- lision, the owners of the Job Johnson and cargo will lose nearly 8500.00 by the deduction, and they have, therefore, prayed that the deduction be struck out of the report, and that they be allowed the amount at the current rate of exchange. The answer is, that the promoters have the right to recover in gold, and tliat the damage must be estimared by a gold standard as the v were at the time of loss, and not in a depreciated and fluctuating currency. This claim comes under the class of consequential dam- ages. Cases in the Common Law Courts have been refer- red to (a) but ditfeix>nces of opinion have prevailed there, 'i-SH-^''^^''uyt- ^'^y^'""' ^ ^'°^ "'" ' P""'""'! "* Harries. 3 B. & P- 3.).,, .^.8 ; Melhsh, m. Sime<,n, 2 ll. 3. 378 ; Cuning »,,. Monro, C T R 8< , per BuUer, J. ; Maunsell v>i. Massarene, lb. ' " ^- "* FltAMC. 106 Fkank CASES IN THE VICE-ADMIRALTY COURT as to wliether the amount of a debt due in one country and sued for in another is to be ascertained at the nominal or par value of the currencies of the two countries or according to the rate of exchange at the particular time existmg between them. Although in this case the question may not have been properly raised by the claim as sub- mitted to the Registrar and Merchants, it is, perhaps, well to state upon the merits of this contestation that Admiralty Courts act upon the principle of an indemnity to the party injured. The loss sustained by the owners of the Job Johnson and her cargo, at tho time of the collision, is just so much as it would have cost them to reinstate themselves at that time. If the recovery of debts due in this country were made to depend upon the fluctuating paj.er currency of the United States, manifest injustice would be the conse- quence. It might have happened that the currency, instead of improving, had fallen oft' in valuation to gold, and then, with as much reason miglit the owners of the Frank have' claimed a deduction of more than ten per cent. The rule m this Court is, "that if a vessel and cargo are lost, the true measure of damage is their actual value, with interest from the time of the trespass." The English and American cases are in accordance with this rule. The value of the schooner and cargo at the time of the accident is allowed in gold 111 the currency of this country. The owners of the Job Johnson have been allowed just so much of Amer- ican currency as would have sufficed to purchase this quan- tity of gold, and to reinstate them as at the time of the loss, and this Court cannot do otherwise than overrule the act on petition and reject the contestation of this item in the report with costs, {a) Blanchet and Pentland, for the Frank. Bradley, for the I'romoters. (a) See the Case of the Leoin Lauk, 10 Moore, P. 0. C 224 The Appollou, y Wheat. :iG2. Tbo Xew Jersey, 2 Prit. 704, note. " FOR LOWER CANADA. 107 le country e nominal nntries, or jular time e question n as sub- haps, well Admiralty the party the Job xn, is just lemselves s country currency he conse- y, instead md then, ank have The rule lost, the 1 interest Lmerican e of the allowed Miers of if Amer- is quan- the loss, the act n in the 24. The Friday, Gth April, 1877. ELIZA KEITH.— Hkaley. LANGSHAW.— Bain. Where two ships were each to blame for a collision in Canadian watp until within a cable's length, and then, but too late, the latter starboarded her helm. The testimony in these cases is not of the conflicting ture 1 imaainpfl fvnm nrU^t- • i , ., ° . , „ — " "''"' "' ''"« uonnict nature I imagined from what A\-as said at the argument. It eam.ship, at ght on the ft bow; at d red light 3 of a cable as goiug to I to port to agree with ;he barque le helm of eel, under under tlie lU the port lered him t to speak -and this ip, where i light of ra before e it may to port )ard, but or doubt 3 of the ight and hen the i of thj e, about !tend to )oarJed !ar that Ta from )m th3 lut too iictinsr at. It AW, FOR LOWER CAXADA. HI appears to me much less so than usual in collision cases. E'-iza With the exception of the testimony of the pilot as to the l^^osh time of porting, and it is well known that eiTcv in computa- "~^ tion of time accompanies circumstances of great danger, there is very little difference in the statements of witnesses. As respects the lights of the barque, the people of the steamship on duty do not say that she had none, they but say they did not see them, and two of them, the chief officer and the look-out, evidently did not care whether they saw them or not. So that there can scarcely be said to exist any contradiction in this respect. The relative posi- tions of these vessels when first seen is not disputed. Each side admits that the one was about a point on the starboard bow of the other; that thus approaching, the steamship does not deny but admits that she did not see the barque. On the other hand the evidence of the barque leaves no doubt that she ported her helm when immediate danger did not require it, and her pilot has admitted as much, as he did it to give more room. If a vessel has seen another, and has good reason to believe that she is in her vicinity, she ought to have a look-out, not only ahead, but in that direction which the vessel so seen may be expected to be in, and in a case of collision arising from her negligence in this respect, she will be condemned in damages, (a) And, again, a vessel will be held responsible for the collision on the ground of want of a sufficient look-out, there being a possi- bility, had a better look-out been kept, the collision might have been prevented, (h) Even if there had been no lights visible from the barque she herself was seen on an opposite course from the steamship. There was therefore the greater reason for looking after her, it being well settled that the negligence of one party is no excuse for the imitat- ing of it by the other. (a)— The Carlota i (Irish) Ju- rist 237 s. (i)-The Miltona, llJurist783 —3 W, Ecb. IH. 6 notes of cases, 450, the Germany 2 L. C- 158. 1]2 Eliza Kkith, Lanobhaw. CASES IN THE VICE-ADMIRALTY COURT As respects the barque, her own people say that she had come romul on her port-helm from three to four potts a the moment of contact. Had she not done so, it "nuite Fobable, perhaps certain, that the « little more" T the steamslnp, as required by her pilot, would not la" cai::, r;r '? ""' ^r ^^'^ p-^--- °f the heim bi; tve^t r ^""'""''^ '*°^^'^ ^'^^"'g been made t: appear, the presumption is quite the other way The valuable assistance upon nautical points which «.cse cases mvolve, derived from the long exper ence o deau the Quebec Harbor Master, in aU matters connected the oUol""''"" '' "" "^'^ ^"' «""^^' ^« ^ be found n the following questions and answers :— 1. Was there a suflicient" look-out" by the people of the Langshaw after she was reported to the pilot and cL officer by the man on the ■' look-out " ? Ansiver. —Certainly not. 2. Could the proper lights of the Eliza Keith, green and rd have been seen from the Langshaw. before the^oUis on so as to have indicated her course and so as to enable tlfe Langshaw to keep out of the way ? Ansicer. —They could. 3. Was the porting of the helm of the Eliza Keith neces ^ry to avoid immediate danger, or would it have blen prudent for her to have kept her course ? . ^^"^.^'^^•-Ste should have kept her' course and the immediate danger did not require that she should port 4 Did the porting of the helm of the Eliza Keith by possibihty cause or contribute to the collision ? ^ Answer.-We are of opinion that i^ did 6. Were either, and which, of the parties in charge of the Langshaw and the Eliza Keith, or both, to blame forihe col- ^..«t..r.._Each is to blame; the Langshaw for not l^Sr"' "'''^'^'' -'''' ^- Keith for pot RT tliat she had )ur points at I, it is quite >re"to clear 1(1 not have helm beiny een made to Dints which :perience of f Mr. Gour- 3 connected )e found in i people of t and chief green and e collision, enable the jith neces- lave been and the port. Keith by •ge of the r the col- for not for port- FOR LOWER CAN-ADA. Each vessel being to blame, it rests with this Court to apply the law. Before the i-assiuj.^ of tlie Merchant Ship- ping Act, 1854, by the Imperial I'arliameut, the rule in the Admiralty was to divide the loss between the parties in cases of mi.tual fault, but by that statute in section -J8, , zs enacted "that when a collision appears to the tourt to have been occasioned by the nun-observance of the rules therein refeiTcd to, (including two the same as those above stated,) the owner of the ship by which they are infnnged shall not be entitled to recover any recompense wliatever for any damage by such ship in such collision " Under this enactment the case of the James (a) came under the revision of the Privy Council in 1850. Dr. Lushington, Judge of the High Court of Admiralty, had in that case allowed a moiety of the damage, but their Lordships re- versed the decision. The late Lord Kingsdown in deliver- ing the judgment said. " If the neglect contributes to tlie collision, the penalty for the breach of it is, that the vessel shall not recover (what otherwise she might in the Admiralty Court have recovered), any portion of the damage from a vesse also in default." After this judgn.ent an Imperial Act (Merchant Shipping Act, 25 and 26 Vic c 63) was passed, and another clause substituted for the above provision in the Merchant Shipping Act, 1854, the effect of which seems to have been the revival of the Admiralty rule in England. Subsequent to these statutes the British North America Act, 1867 was passed. This conferred upon the Parliament of Canada legislative author- ity over aU matters occurring in Canadian waters comiug withm the subject of navigation and shipping, and in 1868 Its -^-^-operation was required to give eflect to the same rules of navigation as had been in use in England. The Act respecting the navigation of Canadian waters, (31 Vic c 58) was accordingly passed, and contains the same provision and the same rules as referred to in the above 298th section (") 10 Moore P.C.C. 102. 113 EL17Jl Keith. Lakobhaw. 314 Kkith, Lanoshaw CASES IN THE VICE-ADMIUALTY COURT of the Merchant Sliipi.ing Act, 1854, viz. : " tliat the owner ol 8uch vessel shaU not be entitled to recover any recom- pense ivhatever for any damage sustained by such vessel in such collision." This provision remains in full force, and the decisions in this Court under it have been uniformly in accordance with that of the James, and no party has since recovered in this Court when in coUision the fault has been mutual, (a) The last judgments in this sense were ren- dered very recently in the cases of the IJanger and the Kosa. Since these cases have been argued there has been trans- mitted to me as judge of this Court, by order of the Judicial Committee of the I'rivy Council, a decision very recently given by them in the cases of the Underwriter and the Lake St. Clair. These were cross-actions arising from a collision at Cape Rosier, near Gaspi^, in the Gulf of St Lawrence. In those cases this Court was assisted by the same assessors as now attend in these, and in their opinion the Underwriter was alone to blame for the collision, because the Lake St. Clair was in stays, motionless, and could not get out of the way of the Underwriter, which could have passed her, but assessors named by their Lordships were of a different opinion upon this question of fact, viz. : that the Lake St. Clair should have braced her head yards abox so as to gather sternway, and the judgment of this Court was so far altered as to declare not only the Underwriter but also the Lake St. Clair, to be in fault. Now, as to the division of the damage. Their Lordships have adopted the Admiralty rule, and charged each vessel with the moiety the amount of damage to be settled on the usual reference' It does not appear from the report of the cases or the judg' ment that the fact of this collision, having happened in Canadian waters, was brought under notice, or any opinion given on it. A series of cases have in the last few years been determined under the Act respecting Canadian waters (a) TLe Arabian -Almn, 2 L. C. of Quebec, lb. 158. Ad. R. 72. The Germany — City RT at the owner any recoin- ich vessel in ill force, and miifornily in ty has since lilt has been e were ren- der and the been trans- the Judicial ry recently er and the ing from a aiilf of St. ited by the eir opinion on, because 1 could not could have ps were of : that the :1s abox so Court was mter, but as to the iopted the e moiety, reference, the judg- )pened in y opinion few years an waters FOK LOWEU CANADA. in this Court in the same sense as in the case of the James and in all of them, where there was mutual fault, the cross- suits have been dismissed without costs to either. So long as the Act respecting Canadian waters is not repealed, or is declarcvd by her Majesty in the Privy Council to be inoper- ative I shall consider it to be binding on this Court, and decide accordingly in cases of collision upon Canadian waters. Ihis Act has been already under consideration by the same tribunal. I refer to the case of the Hibernian involving a coUision on the river St. Lawrence. It was an appeal from the judgment of this Court, and Counsel at the J^nglish liar attempted to impugn its validity and that of another Canadian statute; it was argued that the general maritime law was alone applicable, that the Canadian Statutes were without authority, and that the suit might have been brought in the High Court of Admiralty, but Sir Kobert I'hillimore, who delivered the judgment of their Lordships, which confirmed the judgment of this Court, while admitting that the suit might have been brought in such Court, added : " It is also said at the Bar, the High Court of Admiralty would not have taken cognizance of the statutes and in support of this startling proposition the case of the Halley. decided by this tribunal, was cited. Their Lordships are wholly unable to follow the reasoning of Counsel on this point. In the case of the HaUey. the judg- ment turned upon a question as to the partial or entire adoption or rejection of the law of a foreign country In the present case, the law invoked is contained in an Act of the Legislature of a colony belonging to the Crown an. ratifaed by the express sanction of her Majesty Their Lordships have no doubt whatever that this law in every case to which it is appUcable is of binding authority, equally in the Queen's High Court of Admiralty and in the Admir- aity Court of Canada." The Canadian watei. cover a vast space; their extent IS to be measured not by hundreds but by thousands of miles; they reach from the head of Lake Superior to Cape 115 Eliza Kkith, LANfiSIIAW. IIG CASES IN THE VICE-ADMinALTY COUUT Eliza Kkith, Langhhaw. North in the Gulf of St. Lawrence. At Quebec, the seat of tins jurisdiction, tlie waters of the great lulvcs, 0.3 the Kiver St. Lawrence, are conii)res8ed to within the l.reudth of a mile. There the river hej^'ins to expand to a breadth of from twenty to thirty miles ; then surroumied by Canadian territory, their expansion in and through the Guff continues until they reach the Atlantic by the Straits of Helle Isle, the passage between Capes Kay n-d North and the (Julf of Canso. American vessels now make voyages between Chicago on Lake Michigan and European ports. From abroad British and foreign vessels also i)ass through them. That all vessels while in these waters should be gov ;rned by the same rule as that adopted in the High Court nf Admir- alty is no doubt much to be desired. Whetiier the loss from mutual carelessness is to be divided, or wliether each party should bear his own, may possibly be a matter of mdilierence in an equitable point of view, but in their results there is sometimes a wide difference. All tliis Court has to do is to administer the law as it finds it. As respects the owners of the ca-go the case is different, and there the rule dividing the damage must apply. In the case of the Milan («) it was held that the 298th section of the Merchant Shipping Act, 1854, above referred to, which enacts that in certain cases of collision, the owner of a ship shall not be entitled to recover, dues not apply to the owner of cargo suing. The suit of the owners of the cargo is against but one of two dehnquent ships. They have been guilty of no negligence, either by themselves or their agents, for the master and crew were not under their control. By the common law of England the owners of the cargo on board the Langshaw might, perhaps, have recovered from the owners of the Eliza Keith their entire loss, but the Admiralty law is not so ; it endeavors to administer more equitable justice, and generally when both vessels are to l)lame it makes the owner of each bear a moiety only of the loss. ((/) 1 Lush. 404 c, the seat kes, 03 the ! breadth of bit'iidtli of Y Canadian f continues Hulle Isle, he Gulf of i between s. From >ugh them, mined by of Admir- r the loss ether each matter of t in their this Court different, [)I>ly. In th section iferred to, owner of ply to the rs of the IS. They iselves or ider their wners of ps, have 'ir entire javors to hen both 3h bear a FOB LOWER CANADA. The decrees in these three cases are, tluit the cross suits between the owners of the Lanf,'shaw and tlie Eliza Ki'ith bo dismissed, without costs to either, and that the jjlaintills, owners of the carf,'o of the Langshaw, do recover a moiety of the damage only from the owners of the VAmi Kcitli, with costs. There being no suit against the owners of the Langshaw by the owners of the cargo for the other moiety, nothing is said on that head. 117 Eliza Kkitii, Lanohiiaw. This case was ai)i)ealed to the Privy Council. The fol- lowing judgment was pronounced by the Lords of the Judicial Committee, on the 9th of May, 1878. This is an appeal from a judgment given by the learned Judge of the Vice-Admiralty Court of Quebec in a case of collision. The collision took place in the River St. Lawrence, between two places called Kamouraska and the Pilgrims, at about 11.30 on the evening of the 15tli of August, 1876. The vessels that came into collision were the Eliza Keith, a sailing vessel of 540 tons or thereabouts, and the steamer Langshaw, of the burden of 1186 tons. The i)arts of the vessels which came into collision were the jibboom and bowsprit of the Eliza Keith with the main- mast of the Langshaw. There was a claim and a counter-claim, or an action and a cross-action, in this case. The narrative of the Eliza Keith, so far as it is necessary to refer to it, will be found in the fifth paragraph of the libel. The Eliza Keith says : "About quarter-past ten o'clock p.m. on the evening of the " loth of August, when between the Pilgrims and Kamour- " aska, as aforesaid, the look-out of the Eliza Keith reported " two lights about a point on die starboard bow. These " lights were found to be the lights of two steamers, which "were subsequently ascertained to be the tug-steamer " Conqueror and the steamship Langshaw, now proceeded " against. When first seen, the steamers were at a dis- 118 Emz\ Kkitk, Lanohhaw CASES IN THE VICE-ADMIRALTY COURT ^^ tence of about three or four miles off, with ft distance of .. :;,'""i,;''''««;'l"«rter3 of a milo between each steamer. ^^ Ihe lAiza Keith wa8 then steering a course of south- weat ^ lia t-west. The steamers camo on until they were hM)th ^ a htt e on the port bow ,.f the Eh^za Keith, apparently intending to pass the said barque on her p,.rt side At I' about half-past ten p.m. the tug steamer passed the Eli/4i ^ Keith on the port side. The steamship Langshaw fol- lowed the tug at about three-,iuarters of a mile, and was ^^ then observed to be n.-aring the Eliza Keith very fast Ihe Langshaw had crossed the bow of the Eliza Keith and " was about half a point on her port bow, and steering down " the river, heading f„r the Eliza Keith. The Lan-Ashaw "then showed her green hght for a few mom(.nts? then ' hiding It again, and the people of the Eliza Keith hailed "her. but she still continued as if to cross the bow of the " Ehza Keith. The danger of a collision was then immi- " nent, and the only means to avoid or lessen the said " coUision was to port the helm of the Eliza Keith, which "was done, but the Langshaw was then too close' to the "barque, and the Langshaw struck the Eliza Keith's jib- " boom and bowsprit, carrying away the said jibboom. bow- " sprit, and all the headgear, and causing great dama-^e to "the said barque," and the Eliza Keith alleged that" the collision was caused by the carelessness and bad navig,ition of the steamer, and especially by her improper endeavor to cross the bow of the barque by starboarding her helm On the other hand, the material statement on the part of the steamer was: "That at thirty-five minutes past eleven "p.m., or thereabouts, the man on the look-out on the "forecastle reported a ship a little on the starboard bow "which said ship proved afterwaids to be the Eliza Keith' "showing no lights, the Langshaw being then about four " miles north-east of Grande Island light, Karaouraska, in "the River St. Lawrence, the tide running up with a fresh "breeze from the north-east, the weather cloudy, though "clear, the Langshaw going about eight knots an hour "That all at once, when within a cable's length, the said FOR LOWER CANADA. ll!> " vessel shew .1 a reel light on the Lan<,'shttw'3 stnrltoard "beam, it In .ag tLen too late to avoid the collinion. The " Eliza Ki nil ran into the Lanj,'.sha\v at the starboard nmin- "rigginj,', carrying all away, and cutting,' tlu; .said Hteaniur "down to below thi- water's edgo," and the stvanior alli'^ed that this collision was Eliza Keith. Lanohiiaw caused by tlie niisinanagcnient and carelessness of the Kliza Keith, and in no degi-eo by the bad navigation of the Langshaw or those; on board of her. The learned Jiidgu of the Court below, asnisted by nau- tical assessors, after a considerable amount of evidence had been taken, came to the clear couclusion that the steamer was to blame for this collision ; tluit her defence, that the sailing vessel carried no liglits was an untr\ie defence, and that sh(! had not a good look-out; and upon these two groinids the Langshaw was condemned. From this sentence there has been no appeal on the part of the steamer. Tiie learned Judge proceeded to consider whether the sailing ve?sel was not also to blame, and after consultation with the nautical assessors upon the main jioint jiut forth on behalf of the Eliza Keith, he came to a conclusion that she also was to blame. Now the Eliza Keith being a sailing vessel, it was her duty to keep her course, as it was the corresponding duty of the steamer to keep out of her way. The Eliza Keith admitted in her pleading and in her evidence that she had been compelled — as she said, by the necessities of tlie case — to pjort her helm, that is, that she had depai ..ed from the rule of navi- gation which ordered her to follow her course. She saj's that, admitting this to be so, she was justified in the circumstances, and the question before tlieir Lordships has been, not whether the Langshaw was to blame, for the •Langshaw has acquiesced in the decision of the Court below, but whether the Eliza Keith has made out her defence as to her admitted departure from the rule of navigation. Their Lordships have to consider whether sufficient ground is shown for rescinding or varying in any respect the judgment of the Court Ijelow. It is a fact common to the case of both the vessels that when they first saw 120 Eliza Keiih, Iangshaw CASES I.\ THE VICE-ADMIRALTY COURT each other tliey were gi-een light to green light. The Ehza Keith says that she expected that the Langshaw would pass her upon this tack, and without incurring any risk or danger; that after a certain time she saw th^'e red light of the Langshaw; she then considered that she was about to cross her bows; that she saw the red li-^ht of the Langshaw upon iier starboard bow. The leanred Jud^e of the Court below put several questions of a very pca-- tment character to the nautical assessors by whom he was assisted, to wliich it is necessary to refer. They were of opinion that there was not a sufficient look-out on board the steamer, and that the Eliza Keith carried proper lights Ihe third qu. '^tion put to them was in these words- "Was " the portin ,f the helm of the Eliza Keith necessary to "avoid immediate danger, or would it have been prudent "for her to have kept her course?" The answer was- '' She should have kept her course, and the immediate danger did not require that she should port " They fur ther stated that they thought the porting contributed to the collision. It appears to their Lordships from listening to the arau- ment, and the examination of the evidence, that there Ive two hypotheses, so to speak, upon which this defence of the Eliza Keith is to be considered. First, if she saw the red light a little on her port bow, as she says, at this time and m the circumstances mentioned, then she was not justified m porting her lielm, because, upon that view of the case both vessels would, in the opinion of the nautical assessors' If she had kept her course and obeyed the rule of naviga- tion, have passed without any collision. Secondly if The saw the green light of the steamer, and afterwards' ported her helm, she was clearly wrong for porting into a green light, and the excuse that is offered that by so doin« she might avoid or lessen the collision, is, in the opinion o°f the nautical assessors, by whom the Court is assisted, wholly insufficient. It appears to them, as it did to the learned Judge below, that the defence of the sailing vessel that she was driven to take this course by the uncertain conduct of FOR LOWER CANADA. 121 the steamer, was not supported by tlie evidence of the wit- nesses or by the facts in the case, and then- Lordships have arrived at tlie same conchision. Upon the whole then- Loi-dships are clearly of opinion that the ol>ligatioa of the sailing vessel to excuse her admit- ted departm-e from the rule of navigation which retpiired her to keep her course, has not been discharged ; therefore, there being no apixial from tliat part of the judgment by which the steamer was condemned, their Lordsliips are of opinion that it will be their duty to advise Her :\Lijesty to affirm the sentence of the Court below. Their Lordships think it right to Siiy that, in arriving at this conclusion, they have entirely rejected the evidence adduced on behalf of the steamer, as to whose misconduct throughout the whole of tliis transaction they entertain no doubt, and have reUed altc^ther upon the evidence pro- duced on the part of the bixnpie. Their Lordshijis will humbly advise Her Majesty to affirm the sentence of the Court below, and it must be with the usual costs of the appeal. Then- Lordships desire to observe that the learned Judcre appears to have fallen into an error in liis remarks upon the cise of th3 Lake St. Clair. Ho seems to have imagined that their Lordsliips applied the Admiralty rule as to the division of damage, inconsistently with the provisions of the Canadian Statute, 31 Vict., c. 5- o be considered, in the Nohm^ntom terms of an authority wiiich I liave just cited, more pecu- liarly competent to form a proper estimate of tlie matter and I shall not disturb their allowance of fifteen hundred dollars, to which amount the sum of Sh,(J58.05 stands rediioed. Proceeding now to the consideration of the allowance of demurrage, eleven days for full crew 5[»8 tons at 4d. stg., 8033.54. I do not see how the principle wliich it involves' can be acquiesce, in by this Court, however equitable in amount it may be. It is supposed to represent wages pay- able to persons on board the N. ChurchiU during the winter. For tins I see an account in the record amounting to no less a sum than $3,367.33 for officers and men intended to be covered by the charge of $9,191.59. If there were allowed demuiTage at the rate of 4d. per ton on this vessel of 098 tons for wages, the same rule applied to a vessel of from two to three thousand would be extremely lar^e and out of all reason. In the event of a vessel of these dimen- sions being constrained by the climate to remain in this port, the charge for the men, double in number of those on board of the N. Churchill, would amount to a very lar knots, that of the Elphinstone about six. It is to !,;.; observed that the pilot beam, and bout a mile ntact. The oner a blow choose between them, one as bad as another. ^ say the hghts were bad, you could not see them." Andrews, the Enmore 8 « look-out,' was with the chief officer, and was one of those who went to the schooner after the coUision with him ; he has sworn that " the Belle Hooper then had no side light out, the man at the wheel thought " you could not see the green light more then 10 or 12 feet it was so bad " iLo engineer and the second mate say that after the colli- K 145 Enmobe, Belle Hooper. 146 Enuobb, Belle HoOPKE. CASES IN THE VICE-ADMIRALTY COURT 8ion the greeu liglit was burning badly. The contradiction in this testimony cannot escape remark— the difference between half a mile and 10 or 12 feet, the statement of the look-out that the schooner had no side light out, which 19 contrary to the evidence of all the rest from the Enmore and the statement of the pilot of the Enmore that the' schoun.T's red light was good, while the chief mate ha.s said that one was as bad as the other and both invisible, indi- cat© a n-cklessuess that very much discredits their testi- mony. On the other hand there is an uniformity in the testimony of the promoters, and their statements in the above parti- culars show no contradiction. Again, if the schooner's green light was bad and in bad tnm, the respondent could have prodv, ed impartial testi- mony and better than he has done. These lamps were re- qmred the night after the collision on the schooner while bemg towed by the Enmore, under the 5th article of the saihng rules. As the oil and ma .rials for supplying them were either submerged or inaccessible, they were relighted m the same state as they had been left in the night before. The master of the schooner has sworn that they then burned well, and no one has said that they did not. They were visible in rear of the steamer and could be seen by the thirty-three persons on board of her, none of whom have been examined as to their power at this time. On the first of March, and subsequently at Monte Video, the masters of these vessels conversed together respecting the collision. The master of the Enmore has said that he never complained of the lamps to the master of the schooner, but he docs say that he assigned to him another cause for the collision, the starboarding of the schooner's helm. The lamps on the schooner's arrival at Monte Video could have been examined by disinterested persons, and no doubt they would have been, if a complaint has been made against them by the master of the steamer. A rule is that the best attainable evidence shall be adduced to prove every ontradictioa 3 difference tatemtrnt of out, wliich he Enrnore, e thut the ite hm said isiblf, iiuli- their teati- 3 testimony bovo parti- and in bad ittial testi- >s were re- tner while ;icle of the lying them 3 relighted ?ht before, they then not. They )e seen by of whom ime. On V^ideo, the ectiug the ; he never ooner, but ise for the m. The 3uld have oubt they B against that the )ve every i"OR LOWER (CANADA. tion that other and better evidence of th. fact is withheld a l.r.sum,>t.on arises that the party has son.e socn.t and m ster „K>t.ve for not producing the best and most sati^ c ory evKlence. and is conscious that if the best M-ert to Ik. aiforded h.s object wo.dd he frustrated (a) Now as to the fourth en,,niry-the cause of the collision. Ves.sol descendmg the IMata make the Chico light; they then diverge to a northerly point where they cui el -oh,. a.e Indio Point light, lower down the rL tl Jy then turn upon an eas^-rly c- .. towards it. it the hew hat the Lnmore had ov.rshot ..r n.ark and gone b yond the pou.t where it wu ...essan to turn her cours upon th lower M.t. and that . .o.ung round to take it, or after having attained her easterly coui.e. she s.rn.k the 1 tT h ">"" «*^-'--^'^---^"-i for the Enrnore tl at she had been on an E. by N. course for some time and had not reached the place to assume her downward course. A perusal of this testimony has convinced me that It IS in no way essential, as it matters not where these vessels had b ,., ,^ ^^,^ ,^^^^^^ ^j^^ ^^^^^.^^^ ^^^^ ^^^^^^ ^^^^ ^^^_^ ^ok place about a mile from tl. Chico light, somewhere to the north or west of it, and in a channel live mil. s broad, on a sturligot night. Then there is a document of a very suspicious character prcxluced by the resj-ondent to be considered. It is a declaration of facts signed i.y Gilkey master of the schooner, as required in case; of coLion ; a Port regulation at Monte Video. Here again MUler thi Pjlc^., appears. On the 1st of March he made his ailid'avit of that date imputing blame to the vessel under his control On the same day he informed Captain Oilkev, that a declaration of the nature stated must he made by !n by Mdler to him, acccurately as he supposed, but instead of (a) Starkie Ev. 641, 642. 147 Enuore, Bkli.e HoofKR. 148 En MORE, llodl'Kll. CASES IN THE VICE-ADMIKALTY COURT the W. by N. course bein^ stated in it, as in the log of tiie sohoonor, the c-ouivseofS. W. ^ S. was substituted, and this benig either unexphiiiuHl or the W. by N. course liavin.r been given as tlie true transhition, CJilkey signed it. Tliis change was evidently intended to bring the schooner across tlie bows of the Enniore and thus ,.lace her in fault as attempted by Miller's allidavit of the 1st of March • but this attempt has defeated itself, for the reason that in this document the ciiange of course is suit! to have been made at the distance ..f a mile and a half from the place of colli- sion, the schooner sailing at the time with her j.roper lights. Miller signed tlie document as ])ilot. If sjie hud her proper lights there was time at that distance for the J.nmore to change her course and keep out of the way, and no harm would have been done. I look upon the document as an attempt by nuums of a false translation to back up Miller's allidavit of the Ist of March, and entitled to no consitleratioii. 1 have now reached that part of the evidence in which the true cause of the collision is to be found. The (piestion IS one of lights on the one side, and of caution and nautical skill on the other, as these vessels came up to tlie place of contact. According to the sailing rules if these vessels were proceeiUng in such directions as to involve risk of collision, no matter where or on what course, it was incumbent on the Enmore, if there were time and oppor- tunity, to keep out of the way of the schooner ; or else when apin-oachingher so as to involve risk of collision, to' slacken lier speed or, if necessary, stop and reverse. In the preliminary act of the respondent it is stated that the schooner was sighted from the Enmore at the distance of fibout half a mile. The master and pilot of the Enmore liave both sworn, in their belii^f, that tlie ^o-een light of the schooner could have l)een seen before the collision at about that distance. It may therefore be safely assumed as true upon the evidence of the respondent that the people on board of the Enmore could, with a proper look-out, have the lojT of ituted, 1111(1 IMO IlilvilltT (1 it. This ^ schooner er in ftiult, lurch ; l)iit hut in thia u made at of colli- ler proper f she had I'e for tlie f tlie way, »I)on the islation to id entitkid ! in which 3 question d nautical e place of ie vessels ve risk of !, it was nd oppor- ; or else, llision, to . In the that the stance of ! Kinnore :ht of the at ahout J as true eople on )ut, have FOU LOWER CANADA. seen the schooner's green light half a mile off. If thoy did not, there was an absence of due care and caution. " Her master and chief-olUcer were both below. The Knmore was in charge of her j.ih.t and second mate, having for her look-out Andrews, wlu.se testimony lias been already noticed. The pilot Forrest has said, " at half-past nine we saw the sails of the schooner, it was blowing strong from S. S. E., raining and lightning and hazy. The man on the look-out reported a sail on the ]K)rt bow about two points; no lights to be seen. The second oflicer, that is mvself, and the pilot thought it would be a small craft or cutter ; hen we observed a green light very dim ; we immediately j)ut helm " hard to starboard," stopped engine and went full sj)eed astern. There was only one command, which was to put helm " hard to starboard, stop the engines, full speed astern and blow the whistle." Now let us see th.> accou.i given by the second mate, who was acting with this pilot on the bridge ; he has said " The look-out rej)orted a light on the port bow, the look-out man rej)orted the light and not the vessel. It is not true to say that it was aftor the vessel was report<3d that the gi-een light was seen." He has also said. " The first I saw of the l?elle Hooper was a faint green light on the jiort bow. It was rei^rted at the same time. I saw it two points on the port bow. I consiiler the green light was about IWO yards off, I think. I looked at the light through the glasses. I then saw what aj)peared to be a small vessel approaciiing nearly ' end on ' us to our port bow. When the green light was seen the pilot and I both gave orders, the orders were to sturb(.ard. No further orders were given at that time. A Hash of lightning revealed the vessel close to us, and her masts were open at that time. Orders were thereupon given ' hard a star- board.' " H(, has also said when the order ' hard a star- board ' was given the Helle Hooi.er was off 200 yards. The contradictions in this testimony are apparent, and through- out the depositions of these two persons the st^itoments are confused. Still they come to this that either the sails of 149 Enmore, Belle HOOPKR. 150 Enmorg, Belle Hooper. CASES IN THE VICE-ADMIRALTY COURT ^Y rfoZ ^"" ^''° ^^^^ "' ^'^^ ^^'^ «^^» ^t a distance of about 300 yards, and that no precautionary step in order to avoid collision was taken until after 100 yards of this space had been gone over. As there are 880 yards in half a niUe the question naturally suggests itself what was done on board the Enmore to prevent a coUision while the 580 yards was being gone over until she reached the schooner at the 300 yards. The answer is, simply nothing.-Then there is the evidence of Andrews, the look-out, whose testimony I have already had occasion to notice :_His power of sight was as defective before the collision as after It, when he could see no side lights on the schooner while every one also examined on the point did. In his evidence he has said that after a flash of lightning, to use his own words, « I saw the vessel that proved to be the BeUe Hooper right ahead. I mean on the port bow. I turned toward, the bridge and sang out vessel on port bow I then turned back again and saw a dull green light on the port bow. I turned to the bridge and said green light on port bow. I then heard voices on the bridge ' hard a starboard. "-One would infer from this statement that the schooner was reported twice, first without and then with iier green light in immediate succession and the order 'hard a starboard ' given almost simultaneously The Ideas of this witness as to time and space are quite as indistinct as his power of vision appears to have been imper- tect. On his cross-examination he has said, " when I first saw the schooner she was not very far away, about a couple of ship's lengths. I mean about 300 feet when I say a ship's length. When I first saw the Belle uooper she may have been a quarter of a mile, I ca.it say • she was very close when I saw the green light " This' testimony, uncertain as it is, shews a very close proximity of the«o vessels before the schooner was seen from the Enmore It certainly makes it doubtful whether she was seen at the 300 yards, and still more so when testimony on the side of the BeUe Hooper is referred to. Her look-out has said a distance ep in order rds of this rds in half was done le the 580 I schooner ig.— Then it, whose ce :— His n as after ner while evidence 3 his own ;he BeUe I turned bow. I tit on the I light on ' hard a ; that the len with ".e order y. The quite as a iniper- n I first about a when I Hooper t say; ' This imity of Cumore. seen at :he side as said FOR LOWER CANADA. " the Enmore was about 50 or 100 yards off when I sang out to starboard their helm ; they ought to have heard me, for I heard a man on her forecastle singing out." Accord- ing to this testimony a distance of less than 100 yards between these vessels must have been reached before any- thing was done on board the Enmore to prevent a collision. The speed of the Enmore has been given by her master as but one-half her power, five knots. If this were so there was the more time for the exercise of caution, but others say eight down to the moment ,.; collision. Whiche^■er it was there could have been no very great abatement in it, as we have the fact that the schooner was cut down thirteen feet to her floor timbers. The assessors have given a very close attention to the evidence ; they have favored me with their opinion on the nautical points submitted, and have no hesitation in saying that the schooner's lights were good, were properly placed, and at the time of collision showed a light at the distance prescribed by the sailing regulations. They are of opinion that if the proper precautions had been taken even at the 300 yards by reversing the engines of the Enmore the collision, which they attribute to a bad look on board the Enmore, might have been prevented, and for this collision they attribute the fault solely to the Enmore. This opinion I concur in and shall decree accordingly. A delay of two years has impeded the course of justice in these cases. The owners of the BeUe Hooper have been hitherto deprived of their remedy but not because there has been any improper delay in this Court. They liave had to follow the Enmore as a fugitive from justice over a laivje portion of the globe. Her flight from Monte Video has exposed them to delay in procuring of testimony in South America, the United States and in Canada, when aU that was necessary was in Monte Video where the case could have been disposed of in a very short time. Maritime courts should be and are summary in their proceedings. The tribunal of commerce in the republic of Uruguay 151 Enuobe, Belle Hooper. 162 Enmobe, Bells HOOPGB. CASES IN THE VlCE-ADMIRALTY COURT was legally seized of the claim of the owners of the BeUe Hooper for damage sustained on South American waters. Before that tribunal the parties were entitled to trial under rules emanating from our own imperial legislation. The right of detention over the Enmore was vested in the owners of the Belle-Hooper, citizens of the United States. International law, the comity of nations and necessity re- cognizes in the courts of any country a jurisdiction over foreign ships in cases of coUision upon its waters. Why one of Her Majesty's gun boats should have released the Enmore by a display of force ready for action, the record does not disclose and one is at a loss to conceive. That act has deprived a man of his legal right, a recourse for an injury sustained by property belonging to him, in a foreign country. The master of the Belle Hooper has said that his all was in his schooner; he and his family were shipwrecked by the gross negligence of the people of the Enmore, and their lives exposed to extreme danger, and for two years he has had to travel over a large portion of the world to seek for justice. The result of this case affords an example that the protecting power of Her Majesty's maritime courts, extending as it does over a large portion of the navigable waters of the globe, will afford redress as weU to the foreigner, as to her own subjects however long an act of arbitrary power may have retarded it. The decrees in the cases against the Enmore are for the damage to the Belle Hooper and to the cargo respectively— to be settled on reference to the Registrar and Merchants,— with costs. The action against the Belle Hooper is dis- missed with costs. William Cook, for the BeUe Hooper and cargo. Hon. George Irvine, Q. C. and E. H. PembeHon, for the Enmore. FOR LOWER CANADA. 153 Tuesday, oth April, 1878. EARL OF LONSDALR—McKenna. Where a steamship, ascending the river, before entering a narrow and difficult cliauuel, observed a tug approaching with a train of vsbHola behind her, and did not stop or slacken speed, and where she subsequently collided with the tug and her tow ; held : 1. That the steamer was to blame for not stopping before entering the channel, in accordance with an alleged and established custom to that effect ; 2. That having taken upon herself the responsibility of disregard- ing this custom, she was liable for the consequences of a sheer, which threw her across the fairway, and into collision with the descending vessels. 3. That the burden of proof was upon her, to show that the collisions were not caused by her ; leglect ; and, having failed to do so, her owners were liable. And by the Judicial Committee of the Privy Council, on appeal : 1. That under the circumstances of the case, the fact of the tug not having ported until immediately before: the collision, did not amount to contributory negligence on her part ; and 2. That the decree of the Court below, should be affirmed, on all points. Tliese were four suits, brought by the owners of the schooner Marie Olevina, the barge Canadien, and the barge Jessie, and by the owners of cargo laden on board the barges, against the screw steamship Earl of Lonsdale, for damages occasioned by collision, on the 7th of October, 1877. Mr. Andrews, Q. C, and Mr. Pemberton, for the the Promoters ; Mr. Cook, for the Earl of Lonsdale. The facts of the case appear in the judgment of the Court this day rendered. Eabl of Lonsdale. Judgment.— .How. G. Ohill Stuart These cases were argued at the same time, and the «vi- dence in one has been by consent made common tq the Eael op Lonsdale CASES IN THE VICE-ADMIRALTY COURT rest. The colliaions complained of were oppo^itP the space on the south shore of the St. Lfi^vrence. between the Eiver Nicolet, which faUs into it, and Povt St. Francis situated aJiout two miles below. The courso of the clian- nd of the St. Lawrence is eastward, ». two miles in length, until i,'. reu.iies Port St. Trancis and its centre is indicated by imo lights tiiere, one in iidvence of the other. Its width along this length, untU w.ibm nearly half a mile of Port St. Francis, where it ^spunda. i, from 300 to 350 feet, an<] its depth, in some piaces, not more than 20. Immediately upon turning the bend caused by the change of course -ai the point opposite the Nicolet on the north side, there is a shoal known as Iron Shoal, and about three quarters of a mile below it another shoal called Force Shoal. The channel is on the south of, and along these shoals ; the current in it is strong and variable, the navigation difficult, and there the col- lisions now in question happened. On the 7th October kst, at about five o'clock in the afternoon, the weather was clear, and the St. Lawrence perfectly smooth, when a steam tug, after passing through the Traverae of Nicolet, had made the turn opposite the Nicolet, and was proceeding along Iron Shoal with four vessels in tow. This tug, the Rapid, is a vessel of 28 tons and had m tow thf Myrtle, a brigantine of about 130 tons' 90 feet long, laden with a full cargo of flour, and the Mari3 Olevina, a schooner of 114 tons, laden with a full cargo of flour, pork, and butter, the two held by a hawser from 220 to 240 feet long; they were nearly abreast, the Myrtle somewhat in advance, with aboiv "( 5 feet between them. On another hawser from the tu^. , . ending about FOR LOWER CANADA. 60 feet behind the Myrtle and the Murie Olevina, she had in tow two barges, the Canadien aud the Jessie, lashed together, the fonuer on the starboard side of the latter, with her bow in advance about 6 feet of the Jessie. The Cana- dien was of the burthen of 100 tons; she had on board 7,600 bushels of Indian corn, and T-OO banels of flour. The Jessie was of 137 tons, her length 107 feet and her cargo 8,400 bushels of Indian corn. The Eiirl of Lonsdale is a steamship of 1,543 tons, she is 250 feet long, and her dmught was 18 feet 9 inches. On her way up the St. Lawrence she had j^a-ssed the wharf at Port St. Francis, and had entered into the broad channel there, when her pilot aud second mate saw the Rapid and her towage passing along Iron Shoal towards Port St. Francis. She did not stop in the broad channel above the wharf, nor at the foot of Force Shoal, but went on and continued to approach the tug and the train of vessels behind her, untU tliey met in the narrow channel below the Traverse of Nicoh^t. The Earl of Lonsdale aud the tug passed upon pamllel courses from 60 to 100 fe-^t apart, and then the relative positions of the Earl of Lonsdale to the vessels in tow became such, that the h^^wser by which the Myrtle and the Marie Olevina were towed, was cut in two by the stem of the Earl of Lonsdale, The Myrtle escaped, but the starboard bow of the Earl of Lonsdale aud the port bow of the Marie Olevina came into contact which turned her head in the contrary direction ; and after that the stem of the Earl of Lonsdale came into collision with the port bow of the Canadien outside, aud her star- board bow with the bows of the Jessie inside of the Cana- dien. The promoters have alleged that the Eapid and her tow were on the south side of the fairway, that the Earl of Lonsdale crossed over, and there broke the tow rope of the Marie Olevina, struck her, and then came into coUision with the two barges. In two of the suits, the promoters say that there is a custom, where these collisions took place. 155 Earl of Lonsdale. 156 Earl of Lonsdale. CASES IN THE VICE-ADMIBALTY COURT fr wuT '°^ ""'"''^ *' "^^^ ^" ^^^ ^'^^^ Channel above the Wharf at Port St. Francis, or below Force Shoal, until vessels descending in the narrow channel have passed by The case which has been set np for the defence is. that the Earl of Lonsdale was stationary at the time of the col- lision on the north side of th. channel, and the vessels in tow crossed from the south side and struck her there And further that there was a depth of water outside of the channel, which admitted of vessels of the draught of the tug and her tow going to the south, where they should have gone, so as to let the Earl of Lonsdale pass It is conceded that the Earl of Lonsdale did not stop below Force Shoal, and thus the foUowing questions arise : -1. Should she have done so ? 2. Did she cross to the south side of the channel and there occasion the damage the matter of complaint ? And 3. Could the Rapid, with her tow, have gone outside of the channel on the south, and thereby avoided collision ? The channel at and below the Trayem of Nicolet, and along Iron and Force Shoals, is one of seventeen places in the St. I^wrence, between the cities of Quebec and Mont- real, so dangerous to navigate, that owners of the largest class of steamships and other vessels which pass through them, have by circular enjoined upon aU persons in charge of them and of their craft of every description, to stop or If necessary to wait below, until the fairway of the channel has become clear. The wisdom of this circular was exem- plified last year in the case of the Elphinstone, where two valuable iron steamships, quite of the dimensions of the Earl of Lonsdale, came into collision in one of these narrow channels, and with valuable cargoes sank, by reason of the ascending vessel not stopping below, for which she was adjudged by the Court to have been in fault and condemned in damages, a judgment from which there has been no appeal. That the detention of the Earl of Lonsdale below Force FOR LOWER CANADA. Shoal, SO as to allow the Eapid and her tows to pass her in safety, would have been from ten to twelve minutes has been proved. As to the custom for an ascending vessel to stop below Force Shoal, a number of pilots agree in .stating that when a steamship is descending the Traverse of Nicolet, and another ship is below ascending the river, it is customary for the latter to wait below Force Shoal until the former has gone by ; but that in the case of a sailing vessel it is a matter of discretion. That a steam tug, with four vessels in tow, would be more unmanageable in a case of difficulty in a narrow strait than any sailing vessel or any steamship, does not appear to admit of question, and ordinary care required that the Earl of Lonsdale, 250 feet in length, laden to within fifteen inches of the ground, should have waited until the Rapid and her tows, twice her length, had passed her below Force Shoal. This opinion is confirmed by a very experienced pilot engaged in navigating these waters, named Chandonnet, who has said, " The channel there is in some places narrow, in others crooked, and the cuiTent sets in badly, making it dangerous to meet ; and prudence would require that a steamship, seeing from Port St. Fran- cis a steam tug with four vessels in tow coming down, should wait either at Port St. Francis Wharf or at the foot of the Force Shoal." The language of Lord Cranbourne, in the Privy Council, having reference to a place of the kind on the Danube, will apply with some point on this occa- sion. In the case of the Symrna (a), his Lordship said, with reference to the ascending vessel stopping, " For this the reason is obvious : the descending vessel will, of course, be moving with great velocity, and must also, of necessity, be carried, more or less, into the concave bends of the stream, where the current is much stronger than on the opposite side. Prudence must therefore dictate that the ascending vessel ought to place herself out of the strength of the cur- (a) 2. Moore, P.C.O., N. S. 449. ■>i Earl ok L0N8DALK. Wl 158 Earl of lonhdale. CASES IN THE VICE-ADMIRALTY COUKT renf, in order to allow full swing to the descending vessel whioh niml nf.cussarily be hurried alonj^ by its course." Av.l u\ !iir. r ,acd States, it has been held that "a custfim umon" iHivigators of steamboats on a river to observe par- ticular situations in ascending and descending seems salu- tary and reasonable, analogous to the rule governing sinps passing each other at sea, and such custom will bind such ii.ivigators to its obs.-v^"- , -^d in failure thereof will be at the peril of th,- owners." (a) luuepeud-ut of any cus- tom which might govern in this case, positive .nactment requires every steamship when approaching another ship so as to involve risk of coUision, to slacken her speed, or if necessary, stop and reverse, (h) The Earl of Lonsdale was approaching the Itapid and her tows so fast that their usual speed combined would have caused them to meet within five minutes after ti.e Earl of Lonsdale left Force Shoal and this was such an approach on her part as involved risk of colhsion and required her to stop below Force Shoal. As bearing on the second question, there is .-vidence given by fourteen witnesses of the promoters, to the eflect that the Kapid and the vess,.la she had in tow were on the south side of the line of li 'l.ts, from their leaving the oust point of the Traverse of Kicolet, until the collision; that the Earl of Lonsdale met and passed the Rapid, port side to port side, about 1 00 feet apart; that tiie courses of the two were parallel until the Earl of Lonsdale had gone by the Rapid from 100 to 20( leet. when her course was so altered thai or bo\v was bro it to bea upon the space between the iviyrtle and tlie Marie Olevina, which caused the pei- Bona in charge of the vessels in tow to port their helms '^rom :. Tea. of collisior that the iarl of Lonsdale con- tmued onwards, with a rippl,. at her cr^.v/ater, whi h indicated considerable he^d;.uy, until she came across 'he hawser between tho Myrtio and Murie Olevina, broke i Por?etT'"'p*"A'" ^^ * (») Art. 16 i«teeriz.ir and sail- Port, cited m Pntcba -. D.„ t ing rules. lyl ; also Goslee v. Shules, N. 2b7. T (ling vessel, it3 course." " a custom baerve piir- leems aalu- riiing sliijis bind such eof will be '{ any cus- inactmeiifc her ship so •oed, or, if nsdale was their usual eet within )rce Shoal, olved risk Sliual. e videuce the eftect 3re on the g the ( lion; tliat irt side to f the two le by the 30 altered between the pei- ir helms lale con- •, whi 'h ijross the firoke i*^, : andsail- FOR LOWER CANADA. and then struck the port bow of the latter with her star- board bow, and, going on, struck the [mt bow of the Caua- dien, which was in advance of the bow of the Jessie, with her stem, and then the bow of the Jessie inside with her starboard bow; that the Canadien sank after Heating a short distance so rai)idly tliat the persons on her had but time to save their lives, and the Jessie was honched to save her from sinking. Three of the witnesses wh.. were on the Rapid, say that they licard the pil.t of the Earl of Urns- dale order her helm to starboard after she had passed the liupid and before the collisions, and another person, tlie guardian of the lights, an indiffc-rent spectator, has testified that about sunset he was light' ^ one of them which is placed on the shore about three or four arpents— an arpent eing 180 feet— in a direct line in advance of the larger light fixed upon a piUar in the water, and that he saw the Earl of Lonsdale go into the channel above the wharf, as he thought, at "ease away," to give the tug and her tow, then on their downward course and lower down than the River Nicolet, a chance to clear her; but that the Earl of Lonsdale, when she was about fifteen ai-pents above the wliaif, apj.eared to accelerate her speed, while in his opin- i' , the Rapid was more to the south of the channel than ■jtlierwis On t! -her side four persons who were on the Earl of Lonsdale, uud in i position to see the course she took, have been examined. Her pilot has said that she had a look-out, it she had, he has not been examined. These witnesses, the pilot who was on the bridge, the second mate, and two men at the wheel, testify that ,. 'n the Earl of Lonsdale w, abreast of, and passing the Rapid, the latter was hailed from her to cut the hawsers by wh . I, the vessels in tow were held ; that the Rapid ant! her tows were then about mid- channel ; that the Earl of Lonsdale was and had been on a port helm ; that her engines were reversed when c, posite Force Shoal ; and that before and at the collision her hehn had been put and was hard a port. The place .f collision, 159 Earl op LoNSDALB. 160 Earl op lonbualk. CASES IN THE VICE-AUMIU.VLTY COU.IT according to hor pilot, was about 100 feit from the north brinii of tho channel. Tho aarnn pilot has deni.Mi that he gave the order to starboard as nttributed to him, but the persons who were with him liave abstained from saying that I ,B did not, unless by construction such denial is in- volved ill the statements that the helm was placed to port and hard a por' . The secoml mate of the Earl of Innsdak', who was on tho bridge with the pilot, has said, tliat wiieu the tug and hor tows were almost half a mile off from her an order to port her helm was given, which was followed by orders, when the tug aud her tows were about 250 yards off, to stop the engines and to put her helm h.ard a port. These statements are scarcely reconcileable with the reaiilt, for if the Earl of Lonsdale hud been so long on a port and on a hard a port holm she would most likely, in so narrow a channel, have gone aground, and her port side, not her starboard bow, had the tug and tows crossed as prcti'uded, would have come into collision with tho Marie Olevina and the barges. After carefully comparing and considering the evidence, I have come to the cu,, -lusion that the Earl oi Lonsdale did cross the channel to the south side, aud did there come into collision with the schooner and the barges. Then should the Eapid with her tow have gone out of her course and outside of the channel to the south ? It has been argued that these vessels are in law to be considered as one ship, and as one ship that she should have ported her helm, which would have sent her into shallow water on the south, and this would have enabled the Earl of Lonsdale to pass her. If this course had been feasible, and the persons in charge of the tug and to^\'3 neglected U) adopt :t, there would be mutual fault. In suppoi ! of this view the case of the Cleadon (a) has been cited, but the law therein stated was afterwards explained by Lord Kings- down in the Privy Council in the case of the Independence. (6) Delivering the opinion of their Lordships, he observed. («) 14 Moore, P.O.C. 92. (*) U Moore, P.C.C. 103. FOR LOWER CANADA. 161 I tho north iorl that he m, Imt the rom saying enial is in- ced to port f I.onsdak', that when f from her 8 followed 250 yards ard a port, the i-esiilt, a port and so narrow e, not her priteuded, ievina and evidence , nsdale did come into ne out of law to he Duld have ) shallow the J'arl : feasible, fleeted to I I of this , but the d Kings- endence. tbserved. 103. a steamer, unencumbered, can turn out of her course nnd turn into it again with little dilliculty or inconvenience. She can .slacken or increase her speed, stop or reverse her engines, und can remove in one direction or the other with tho utmost facility. But a steamer with a ship in tow is in a very ditt'erent situation. She is not in anything like the same d( ^>ree the mistress of her own motions ; she is undLT the control of, and has to consiih'r, the ship to which she is attached, and of which tlieir Lordships observed in the case of th(^ Cleadon she may be considered for many I)urposos us a part, the motive power being in the steamer and the governing power in the ship towed. She cannot by stripping or reversing her engines at once stop or back the sliip which is following her. J}y slipping aside out of the way of an approaching vessel she cannot ut once and with the same rapidity draw out of the way the shij) to which she is attached, it may be by a hawser of consider- able length, in this case about fifty fathoms, and the very movement which sends the tug out of danger may bring the ship to which she is attached into it. Had the tug adopted either of the courses thus stated the consequences would probably have been more serious than they were. The following questions and answers indicate the opinions of the nautical assessors with which this Court has been favored : — Question. Did the Earl of Lonsdale, by passing into the narrow channel at the foot of Force Shoal, while the Rapid and her towage were in it, approach them ,so as to involve risk of collision ? and were the latter exposed to more than ordinary risk by the steamship not stopping there ? Answer. She did, and the Rapid, with her towage, were thereby exi)osed to greater risk by the steamship not stopping. Question. Did the Earl of I/>nsdale cross the chan- nel to the south side of it, and there occasion the several collisions complained of in 'he above-mentioned suits re- spectively ? Answer. The Rapid and her tows were a little Earl ok lUNSUALC. 162 CASES IN THE VICE-ADMIRALTY COUUT Earl of lonbdalk. to the south of the leading mark of the chaunel, which waa the two lights in one, and the steamshij) must have crossed the line of mid-channel when she collided with the schooner and tlie barges. Question. According to the Admiralty Chart of record, showing the depth of water at and in the channel near the shoals, would it have been prudent for tlie tug and her towage to have ko})! furtlier to the south ? An.'iwcr. There would have been room, although the depth of water varies much, but there was not time when the steamship crossed. If she crossed, when the liapid and her towage were higher up tlie channel they could have given more room by going southward. If the steamship had not crossed they would have gcme clear. Quedion. Do you think that the steamshi]) was sole- ly to blame for the several collisions that took place, as well M'ith the schooner as the barges ? Anntwr. We think she was alone to blame. Despatch and impatience at delay seem to have led to these collisions, as ai)pears from the evidence of the pilot of the Earl of Lonsdale. " If a steamshii)," he has said, "has to wait for smaller vessels, we would never get to Montreal, because there are always some in our way. We wait for vessels of deep draught; that is, for vessels which draw from sixteen to twenty feet of water," and this gives occasion to apply the law as stated in the High Court of Admiralty in the case of Hose {a). It may be a matter of convenience that steam vessels should pro- ceed with great rapidity, but the law will not justify thera in proceeding with such rapidity if the property and lives of other persons are thereby endangered. The Earl of Lonsdale neglected an ordinary and proper measure of precaution. Her passing into the narrow chan- nel below the Traverse of Nicolet, while the Kapid and her tow were in it, was fraught with risk and danger to them, and the law has, consequently, imposed on her the burden («) 2 w. Rjb. ;j. FOtt LOWER CANADA. 163 , which was uve crossed le schoouer i of record, aiinel near lb tug and A nnwi'r. h of water stcamsliip ler towage iven more :) liud uot was sole- c iilaco, as We thiuk ave led to E" the pilot has said, never get our way. or vessels iter," and the High It may lould pro- itify them id lives of id jiroper row ciian- i and hor to them, 16 burden of showing that the collisions were not owing to her neglect (a). She has not done so. The contrary has been proved by the promoters, and her reckless course after ente'-ing tlie strait was such that by no act of the tuj,' and tow, consist- ently with their own safety, could collision have been avoided. Judgment in each case is in favor of the promoters, with costs, their (himages to be ascertained upon the usual reference. Earl or LONSDALB. These cases were appealed to the Judicial Committee of the Privy Council, where the decrees of the Admiralty (Jourt were allirmed. Their Lordships rendered the follow- iug judgment : Tiiis is an Appeal from a decree of the Judge of the Vice- Admiralty Court of Quebec in four suits brought by the (twners of a schooner called the Marie Olevina, the barge Caiiadiiiu, the barge Jessie, and the cargoes of those barges, — each in a case of collision, — against a steamship called the Earl of Lonsilale. The P^arl of Lonsdale was a screw steamer 250 feet in length and of 1,543 tons register, bound from Newport to Montreal with a cargo of coals, and was jiroceeding up the St. Lawrence. The Jessie and Canadien were coming down in tow of a steam-tug called the liapid, which had two other vessels in tow, namely, a schooner cidled the Marie Olevina and a brig called the Myrtle. Tlie Marie Olevina and Myrtle were next U) the liapid and were being towed abreast of one anotiier, the Marie Olevina being on the port side; and the two barges were towing astern of the brig and schoouer, and were laslied together. These vessels were all of small size, none drawing more than from 11 to 12 feet of water. The Earl of Lonsdale was drawing between 18 and 19 feet of water. Siie was proceeding up the north side of the ship channel in the River St. Lawrence. There was water (,')) 6 Law, R. m. Abbott on Shipping, 30(), Note. , Newberry'8 Reports, 494. 164 CASES m THE VICE-ADMIRALTY COURT Earl of Lonsdale. for at least 200 yards. The breadth of the channel may be said to be about 200 to 300 yards. The Earl of Lonsdale was on her way up the St. Lawrence ; she had passed the wharf at Port St. Francis, and had entered into the broad channel there, when her pilot and secf^nd mate saw the Rapid and her towage passing along lion Shoal towards Port St. Francis. The Earl of Lonsdale did not stop in tlie broad channel above the wharf, nor at the foot of Force Shoal, but went on, seeing the tug approaching with a train of vessels behind her, namely, the two saihng vessels and two barges which have been mentioned. The Earl of Lons- dale and the tug passed upon parallel courses from 60 to 100 feet apart. The Judge says, "And then the relative positions of the Earl of Lonsdale to the vessels in tow be- came such that the hawser by which the Myrtle and the Jlarie Olevina were towed was cut in two by the stem of the Earl of Lonsdale. The Myrtle escaped, but the star- board bow of the Earl of Lonsdale and the port bow of the Marie Olevina came into contact, which turned her liead in the contrary direction, and after that the stem of the Earl of Lonsdale came into collision with the port bow of the Cana- dien outside and her starboard bow with the bows of the Jessie inside of the Canadien." The learned Judge of the Court below, after advising with his nautical assessors, and after a careful review of all the evidence, came to the conclusion that the Earl of Lons- dale was to blame for these collisions. Now it appears to their Lordships that this conclusion was well-founded upon the evidence. Aft<3r reviewing that evidence they think that if tliey had to come to a conclusion for the first time upon it,— if the case had been heard before them in the first instance,— they would have decided in the same manner as the learned Judge did ; but they are of opinion that, unquestionably, there was ample evidence to found the conclusion at which he arrived. It has already been said that the Earl of Lonsdale was 250 feet long. She had the tide, or at least the stream. FOE LOWER CANADA. 165 against her, and it would have been very easy for her to have stopped before she went into the channel, and to have allowed this tug with all her train of vessels to have passed in safety, or if she did come into the channel it was her duty to have navigated with great discretion and caution, whereas the evidence shows tliat she neither stopped nor had any sternway upon her at all. She passed the llapid, and her starboard bow ran into the port bow of the Marie Olevina, then hsr stem ran into the port bow of the Cana- dien and her starboard bow into the bows of the Jessie. It appears to their Lordships, after communication with the sailing masters, that the tug with her tow would have gone quite clear if she had been allowed to keep her course and if the Earl of Lonsdale had not crossed to the southward. Their Lordships, therefore, think that the learned Judge was quite right in his finding that the collision was caused by that vessel crossing the channel to the south side, there- by coming into collision with the schooner and the barges. There remains one question which their Lordships thought worthy of further consideration than it appears to have re- ceived in the Court below. Perhaps it was not raised there so fully as before their Lordships to-day, but their Lordships desired to have the question argued whether according to the evidence in this case the Rapid did not also contribute to the collision, and whether she was not therefore also to blame ? That question is to be answered by various con- siderations, the first of which is, ought the liopid to have ported more than she did ? Because that she did port a little is clear from the evi e of the master of the Earl of Lonsdale, who says : " The tug, when passiug us, though somewhat on a parallel course, was anghng a little to the southward, with her helm a port I should think." It has been argued that the rule of navigation requires that at least she should port also, and that if the Rapid had done that the collision would have been avoided, even though the Earl of Lonsdale might have been to blame for coming across in the way in which she did. It appears, however, that the Earl of lonsdalk. 16G Earl op lonsdalr. CASES IN THE VICE-ADMIRALTY COURT Rapid left more than half the river to the Earl of Lonsdale in which to pass, and their Lordships are not satisfied upon the evidence that she had not abundant space, without any danger of coming upon the shoals cu the northern side of the channel, to pass in perfect safety while tlie Rapid pur- sued her course. It appears also to their Lordships that there was a proper look-nit on board the Rapid, that her navigation was properly attended to, and that she had no reason to anticipate that the Earl of Lonsdale would cross or sheer to the southward. It was also argued that the Rapid ought to have eased or stopped her engines. But their Lordships, taking all the circumstances into considera- tion, are not of that opinion. In the first place they m st bear in mind the long train of vessels behind her which she had to manage, and which rendered it extremely difficult for her to ease her engines without bringing them into a heap, as it were, one upon another. Their Lordships also remembei that she had the current in her favur, which rendered the manoeuvre suggested extremely difficult and perilous. On the whole, therefore, their Lordships see no reason whatever for interfering with the judgment of the Court below, thinking that the learned Judge was perfectly well- founded upon the evidence in coming to the conclusion that the collision was caused by the Earl of Lonsdale crossing to the southern point, and thinking also that there is no evidence to support the proposition that the Rapid contributed to this collision by any want of proper skill or care on her part. Their Lordships will therefore humbly recommend Her Majesty to affirm the decision of the Court below, and to dismiss this Appeal with costs (a). («ad, intending to go directly ahead of the Dunrobin Castle, instead of which she towed under her stem at a distance of about a cable The tug seems in this and some other particulars not to have complied with orders from the pilot of the Commodore : this pilot did not object to the course so taken by the tug as he considered it perfectly safe, and so it may be const dered, as no exception has been taken to it. After the tug had passed the stern of the Dunrobin Castle. aU she had to do was to go ahead by applying the necessary steam-power so as to take the Commodore clear of the Schelde lying below. Instead of doing so she then relaxed her speed and the rope became slack. The Commodore canted to the tide and began to drift broadside towards the Schelde When the tug had passed the Dunrobin Castle's stern, the chief officer of the Commodore has stated that she was about SIX cables above the Schelde, and before and after the Commodore had drifted about half that distance, he had called out to the tug to go ahead,-in his own language " stamping the deck with rage and bawling out to them to go ahead." He has also said that he hailed the Schelde to starboard her helm, which would have avoided the coUi^on Again blame is attributed to the William by the pilot of the Schelde. No evidence has been offered to show why it was that the tug aUowed the Commodore to drift upon the Schelde. IT FOR LOWER CANADA. 169 ainutes after le came into A'sprit of the ai-d side, for was caused id the Com- omission of towed was kvas tripped iing to go ■ which she able. The lot to have )mmodore ; by the tug, V be consi- ter the tug she had to am-power, ilde, lying speed and 3d to the Schelde. stern, the i she was and after «, he had language 3 them to chelde to colli>ion. 2 pilot of was that Schelde. There is nothing to prove that it was an inevitable accident, Commodore. and so far as the record shows to the contrary it may have either been from design or negligence. She did not act under the orders of the tow but contrary to them. There was no danger of collision until the tug relaxed her speed, and from that time there was no act done by the Commo- dore which contributed to the collision nor any omission on her part which led to or caused it. It by no means follows that because the Commodore was the proximate cause of damage she is to be made liable for it. Where the fault attaches to one exclusively, whether it be tug or tow, that one should be made liable, upon the principle that an innocent person should not suffer for the wrongful act of another, and where the fault attaches to both, they should be held jointly and severally liable. There exists a com- mon obligation between them to make every reasonable effort to avoid danger and a common responsibility in case of neglect, (a) Were I convinced in this case that the Commodore in any degree contributed to the collision, she would have been held liable. It is possible that she may have done so, but it is not in evidence that she did. The persona who were on board the tug have not been examined, and therefore we have no justification of their conduct. It seems to me that they should have been, and in the absence of their testimony the presumption is that the owners of the Schelde thought it would be of no use to adduce it. On the second plea it is unnecessary that I should come to a decision, as the case is disposed of under the first. I may, however, remark that when the Commodore was driving on the Schelde it was supposed, until almost the moment of collision, that she might pass free, as thirty feet or thereabouts would have been sufficient for the purpose, and had the Schelde starboarded her helm it is not impro- bable that it would have been avoided, but the collision (n) 14 Pickering, R. 1. Sprout Legal Observer, 43.5 H. .S69. The vs. Hemniingway, 6 New York John Counter, I. Stuart R. 344. 170 CASES IN THE VICE-ADMIRALTY COURT CoMMODOBE. was SO immediate after danger was apprehended that there "^"^ was not time to do it, and if there was time it may have been an error but not a fault, (a) Nothing but gross negli- gence will render a vessel at anchor liable for a collision, (h) Blanchet and Pentland, for the Schelde, M088, Stuart and StuaH, for the Commodore. (-J) The Propellor Genesee Chief (A) Pritchard'a Digest Vo. Dam- vs. Fitzhugh. 12 How. Supreme age, 407. Court, U. S. IT i that there t may have gross negli- soUision. (fe) festVo. Dam- FOR LOWER CANADA. Fiiilay, 29th November, 1878. WILLIAM.— Samson. If a tu^, for a stipulated price, promixeH to tow a VBHsel from one place to another, her eug-agement i« that she will employ compotent skill, with a crew and equipment reasonably adequate to the object, without a warranty of success under every difliculty. Where a tug de /iated from an order of her tow, and afterwards proved so deficient in skill as to allow the tug' to collide with another vessel ;— held, that the tug^ was liable for the consequences of the collision. Judgment.— B^on. G. Okill Stuart. This suit was brought by the owners of the barciue Commodore, against the tug steamer William, to be indem- nified for damage said to have been caused by her negli- gence wliile towing the Commodore, on the afternoon of the 25th of May last, near Indian Cove, on the south shore of the St. Lawrence, about four miles below the city of Quebec. The owner of the William had, for a stipulated price, agreed with the master of the Commodore to tow her down the St. Lawrence from her anchorage opposite Indian Cove, and went alongside of her for that purpose. The WiUiam is a powerful tug of 85 tons and 75 horse-power. The Commodore is a barque of 562 tons, and was ready for sea. At the time the tug went alongside the Commo- dore, there were two vessels outside of her to the north ; one was the Dunrobin Castle, on her starboaixi bow, and the other the Schelde, a Norwegian barque, on her star- board quarter, both at anchor. These three vessels being thus situated, the tug steamed ahead of the Commodore with a towing hawser attached, and by advancing or stop- ping relieved her men in weighing her anchor. After it was tripped off the ground, the pilot of the Commodore 171 William. 172 WiLMAM. CASE8 IN THE VICE-ADMIRALTY COURT hailed the tug to go ahead; this was an order, and so understood by the jnaster of tin- tug, t> go .stniight ahead, which would have taken the Commodore to the soul!, of the Dunrobin Castle, somewhat more than a cable's lenf,'th from her, and thus she would have passed round the bow of that vessel and to the starboard of the Sclielde lying nearly three cables' length below the Dunrobin Castle, and almost in a line with her. Instead of complying with this order, the master of the tug directed her helm to be ported, and that she should go ahead " full speed;" she accordingly did 80, and the Commodore followed in tow also on her port helm, which brought the tug very speedily under the stern of the Dunrobin Castle. The tug continued < u her port helm untU beyond the Dunrobin Castle, where her tow rope became so slack that she but made progress and no more. The Commodore canted and drifted with the ebb broadside upon the Schelde, her main rigging came into contact with the jib-boom of the Schelde, and the damage was done, for which reparation is demanded. ^ The owner of the tug hu pleaded that the pUr.t of the ^ 'Ommodore ordered her to go ahead to puss between the r»nnrobin Castle and the Schelde, that with full power slie proceeded to pass astern of the Dunrobin Castle, that she v/as impeded at first by the anchor of the Commodore not being fairly off the ground, and the ebb catching the Com- modore, she was thereby driven towards the Schelde and came into collision, which might have been avoided had the Schelde starboarded her helm, which she was hailed from the tug to do, or had the Commodore cast off the hawser. This defence, it may be observed at once, has failed on several and the most material points. It is estabhshed that the anchor of the Commodore was well up from the ground when the order for her to go ahead was given, that the pilot of the Commodore, who gave this order, intended that it was to go ahead south uf the Dunrobin Castle, that it was so interpreted at the moment it was given by the IT ler, and so light ahead, lu soudi of ijle'a len>,'th id the buw lelde lying Castle, and g with this > be ported, iccordingly Iso on her under the ed ou her where her Jgress and with the ?ing came , and the led. ilot of the tween the power slie ), that she lodore not the Com- lelde and »ided had f&s hailed it off the failed on itabhshed from the ven, that intended stle, that n by the FOR LOWKR CANADA. master of the Uif and that with oiuniary care the passu, between the two vessels could have been safely acconi- I ''^hed. The eircum.Htances attending this collision were but par- tially disclosed in the case of tho Scholdo against tho Commodore, in which that vessel was charged with fault, and as 'lie cause of it. That case was dismissed b. 'cause the tuj,' William had allowed the Commodore to drift u]k)u tlif Schelde, and because the latter was not to 1^ •.,. in tliis case, however, the diificulty as to why the t wed the Commodore to drift upon the Schelde has be( ved, and the cause of it is to be found in testimony au aced for the tug. Three persons, who were on her deck, have been examined for the respondent, her master, secondly, a per- son acting under his orders who has been a pilot, but haa lost his bran, u for misconduct, and the third, a seaman named Gameau, who were all in the round-house before the collision. The two first do not disclose the cause of the accident, but the third, perhaps unconsciously, tloes : He has said that he heard the master of the tug give the oi-der, "Full speed ahead," at the time she started with the Commodore in tow, and that she then went at that rate for about five minutes ; that about three or four minutes after this order was given, he heard the master of the tug say to the person acting under him in the round-house, to put his wheel to go to the north, so as to pass the stern of the Dunrobin Castle, and that he would rather go astern of this ship than in front of her ; he did not say why. Gameau has also said that about four minutes elapsed from the time that the tug passed the Dunrobin Castle until the collision. These computations of time seem to be accurate, and accord with other testimony : — And now I come to an important fact stated by this witness, which shows why it was that the speed of the tug became so very much reduced after she passed the Dunrobin Castle,— it was to change the tow line from the starboard to the port side of the tug. His testi- mony is in these terms , " nous avions passe de derriere du 173 William. MICROCOPY RESOIUTION TEST CHART (ANSI and ISO TEST CHART No. 2) La III '-^ i^ A /APPLIED IIVHGE Inc ^~\i 1653 EosI Main Street ?'..= Rochester. New York 14609 USA '■S^ (716) 482 - 0300 - Plione ^= (716) 288 - 5989 - Fo« 174 CASES IN THE VICE-ADMIKALTY COURT William. Dunrobin Castle im petit peu quand nous avons changd le grelin, c'est a dire nous I'avons accroche au poteau a gauche, et cela pour donner une chance a notre steamboat de virer en haul et par la donner plus de chance au batement quo nous remorquions de clairer le Schelde. Nous avons alacU notre vitesse une seconde pour faire cette accrochement de notre grelin." The tug, according to this witness, appears to have been repeatedly called to from the Commodore to keep her head up the river, which I take it is signified by the terra virer en haul, in other words to starboard her helm. This was followed by forcible language from the mate of the Commodore to go ahead. Tiien there is this significant fact stated by the same witness. It was at the very moment of collision the tug straightened up her course and went ahead. The cause of the collision is thus explained. At the critical moment for a successful accom- plishment of the manoeuvre, which the evidence shows was quite feasible, it was discovered that the tow line had been thrown over the wrong post, and that while it was being shifted to the right one the Commodore was allowed to drift down upon the Schelde. No doubt, it may have taken but a second to remove the tow line from one post to the other, but before that there was to be removed the strain and pressure of a large ship bearing upon the tow post, and until then no number of men could change the tow line from one post to the other, which was ultimately effected by the speed of the steam tug being reduced to nearly " dead slow." The conclusion is that the tug was not in proper trim when she attempted to pass between the vessels. The skillful aid which I have had from the nautical assessors v/ill appear from the following answers to ques- tions submitted by me to them. Question. Was the anchor of the Commodore tripped, that is, clear of the ground, before the tug William com- menced towing her ? Answer. — It was. niT FOR LOWER CANADA. 175 na changd lo au a gauche, oat de virer atement quo avons slacU achement de less, appears )inmodore to signified by Larboard her ge from the ;liere is this t was at the ned up her ision is thus isful accom- e shows was ne had been it was being allowed to t may have )ni one post removed the pon the tow change the ,s ultimately ; reduced to the tug was between the the nautical 3rs to ques- lore tripped, illiam com- Question. — Did it continue so from that time until the moment of the collision ? Answer. — It did. Quedion. — If the tug had gone ahead as directed by the pilot of the Commodore, would there have been any collision ? Answer. — There would not, as the tug and tow would have gone safely to the south of the Duurobin Castle. Question. — With the length of the anchor chain out when the William started, and was crossing and had crossed the stern of the Duurobin Castle, could she liave taken the Commodore in safety between the Dunrobin Castle and the Schelde, and in what way ? Ansioer.—'iih.Q could, by the tug putting her helm a starboard the moment she was clear of the Dunrobin Castle. Question. — It being in evidence that after the tug had passed under tlie stern of the Dunrobin Castle, the tow line from where it was attached to the tug was shifted, that is, from the starboard to the port post, would the doing of this have had the effect of retarding the progress of the tug with her tow after she had passed the stern of the Dunrobin Castle so as to allow her to drift upon the Schelde ? Answer. — When the tug had passed the Dunrobin Cas- tle she continued with her helm aport instead of starboard- ing immediately. It appears that upon an order to star- board the helm of the tug being given, an attempt was made to shift the tow line from the starboard to the port post, which occasioned delay, and we can, in no other way, account for the tug not going ahead as directed from the Commodore, than by the delay occasioned in the shifting of the tow line, to do which it was necessary to slacken the tow rope. This delay occasioned the Commodore to drift on the Schelde. Question. — Could any precaution have been taken on board of the tug before she began to tow the Commodore William. 176 CASES IX THE VICE-ADMIRALTY COURT William. SO as to prevent or avoid the delay referred to in the last question ? Ansiver. — The tow line should have been sliifted before the tug started to tow the Commodore, and tliis could have been foreseen as likely to be necessary. This was rendered necessary by the tug neglecting to keep her head up, by starboarding her helm so as to allow room for the Commo- dore to pass clear of the Schelde. If either of these pre- cautions had been taken there would have been no accident. And we attribute the collision in question to these omis- sions alone. E. D. Ashe, Commander, R. N. F. GoURDEAU, Harbor Master. It was argued for the defence that although the order for the tug to take the south side of the Dunrobin Castle was not obeyed, the pilot of the Commodore agreed to the change because he did not again give his order to go to the south, or a counter order. The master of the tug, without any notice to the Commodore, with a full pressure of steam on, had evidently determined not to obey it, and his pre- cipitation in the carrying out of his determination may probably have led to the collision. The tug went across and under the stern of the Dunrobin Castle very rapidly and a divided command then might have been attended with serious consequences. The master of the tug had pre- viously disobeyed some orders of the pilot, and it seems to me certain that he had made up his mind to disobey this one, and what makes the matter worse, he has atw d to justify his conduct by stating in his evidence tha„ > jce were vessels above so near as to prevent his going ahead . 'f the Dunrobin Castle, which was not the case, as appears from the evidence. But if the pilot did not approve of the change this does not mend the matter for the tug, because the passage between the two vessels, it is admitted, could have been accomplished with proper precaution. Again, it has been in the last Pted before could have IS rendered ?ad lip, by e Commo- these pre- accident, lese omis- R.N. ter. e order for Oastle was ed to the ) go to the g, without b of steam i his pre- ition may ent across •y rapidly , attended g had pre- t seems to 3obey this atix d th.a„ 1 jce 1 ahead f s appears this does ! passage ave been has been FOR LOWER CANADA. said that the Commodore might have cast off the tug ; this is vory questionable, and would have been a dangerous experiment, much more so than waiting for the tug to go suliiciently ahead to enable the Commodore to clear the Sclielde. l>\\t a few moments more would have sufficed for this, and she would have done so were it not that the Sclielde, according to the respondent's plea, neglected to starboard her helm. Another ground of defence is tliis neglect of the Sclielde, but with it the promoter has nothing to do. If she were guilty of negligence in this particular, it \V()uld afford no justification for the conduct of the tug, nor would it relieve her from liability. The legal principle to be applied is this, : " when a steamboat engages to tow a vessel for a certain v^muneration from one point to another, she does not warrant that she will be able to do so under all circumstances and at all hazards, but she does engage that she will use her best endeavors for that purpf^se, and will bring to the task competent skill and such a crew, tackle and equipment, as are reasonably to be expected in a vessel of her clads." (a) The WilUam is a powerful tug. She had on a full head of steam and was quite equal to do the work which her owner undertook to do, but, unfortunately, competent skill for the task was wanting, and she must be made liable for the absence of it. The judgment maintains the claim, to be settled upon the usual reference, with costs. Ross, Stuart and Stuart, for Promoters. William Cook, for Kespondents. (a) The Minnehaha, 15 Moore, P. C. C. p. 152. it- William. 178 CASES IN THE VICE-ADMIRALTY COURT Friday, 24th January, 1879, CITY OF MANITOWOC— HiGGiE. Wliere an assignment was made by salvors of a sum due to thorn for salvage ; held, that their lien on the ship was personal and inalien- able, and that it did not vest in their assignees so as to enable the latter to proceed in mm against the ship. Also, that where an agent for a foreign vessel has ma le advaucs and disbursements for her use in account with her owner, and such vessel after sailing on her voyage is brought back to the port from which she sailed a wreck, the agent cannot treat his claim as one for " necessaries," under the Vice-Admir- alty Courts Act, IStiii. City op This case was submitted to tlie Court on behalf of tlie ^^^^}^owoc. promoters, Denis and James Maguire, co-partners at Que- bec, under the firm of D. & J. Maguire, after a second default, with affidavits in support of a motion for the pi-i^ mum decvetum pronouncing for the amount demanded and costs. Doubts were tlien expressed by the Court as to its having jurisdiction in the matter, and judgment was suspended until the promoters were heard. F. A. Andrews, Q. C, for promoters. The present suit is in rem founded upon the maritime liens upon the vessel, for the debts which it is sought to recover by the action, viz. : 1. Salvage of the ship ; 2. Necessaries supplied to the vessel in this Province, her owners being domiciled in the United States ; 3. A claim for money paid for seamen's wages ; 4. For money paid for pilotage, and, 5. For moneys disbursed fov towages. For all these matters, the Vice-Admiralty Court here has jurisdiction under the provisions of Act 26 Vic, ch. 24, sec. 10. Maude & Pollock, 487.— For such debts, those perform- ing the services have, both by the common law of England IT FOR LOWER CANADA. 1^9 E. ue to thom for 1 and inalifjn- to enable the berti an ag'ent ts for her use on her voyage uk. the agent e Vice-Admir- ihalf of the era at Que- r a second 3r the pfi- demanded le Court as Igment was e maritime sought to Province, rt here has h. 24, sec. e perform- f England and by the Admiralty law, as also by the law of this Cityof Trovince, a lien upon the property in resj.ect of which they Manitowo#. are rendered. liut the maritime lien enforced by process in the Admir- alty, and the lien givim by tlie Common law, and that known to our own law, are not the same, this being a pos- sessory lien. Coo^e Adm. Prac. page 16.— The maritime lien is the tacit hypotlicc of the Civil law, the thing being the defendant and not the owner of it. Ciiote, page lli. — In the case of a debt, its operation as a maritime lien (lej-»ends upim the services of the creditor and not uijon a contract. By the common law of England, as well as by ours, the lien also arises from the nature of the services performed^ but it continues only so long as the party executing them retains possession of the thing affected for the satisfaction of the debt, and in the ordinary courts, the action is against the owner, accompanied, it may be, by process of attach- ment of the thing to secure the creditor's rights or privileges over it. Eng. L. & E. R, vol. 22, page 72.— In the Admiralty Court the suit is in rem, which is the legal means to per- fect the right of which the maritime lien is the foundation. Kafj, vol. 2 page 1091.—" The maritime lien is not lost as the common law lien would be by a voluntary or extra judicial sale of the thing." Williams & Bruce, page 149 — " Nor does it arise fron* the cltiimant's possession of the tiling. The maritime lien exists independently of any possession." The maritime lien then, in this case, for the debts claimed by the present action by the promoters no doubt" existed at the time of the different services performed; Two questions now present themselves : — 1. Has that maritime lien been lost ? 2. Could it be assigned to the promoters ? As to the first question, has the maritime lien' been lost? ■Coote, page 16, — The lien may be extinguished' in various ways. 180 CASES IN THE VICE-ADMIRALTY COURT City OP MANrtowoc By the payment of the debt hy or on behalf of the ovnor of the res. liy bail lieing given in the Court of Admiralty to an action instituted to enforce it. By the creditor electing to take, and taking, a security instead of payment in cash. By the sale of the thing made under authority of a Court of Admiralty. By the loss or destruction of the thing. By want of reasonable diligence on the part of the creditor in enforcing the maritime lien while the thing was capable of satisfying it. None of these ctiuses of extinguishment of the lien can have any application to the present case. The only one which might be coasidered as bearing upon it, is that with reference to the payment of the debt, hy or on beliulf of tfie owner of tlie res, but no such payment ever took place, but only an assignment of the debt of sal- vage by tlie salvors to the promoters on value being given by them. And this gives rise to the second question as to whether the salvors could assign their debt and maritime lien for it to the promoters, so as to enable them to institute the present action in their own name ? Coote, page 19. — It is stated in the text, that a lien is inalienable except in the case of bottomry ; he adds " it cannot be assigned or transferred to another person so as to give him a right of action in rem as assignee." Now is this legal proposition weU founded in law ? The cases quoted by the writer do not bear out the doc- trine, and the principle enunciated, it is submitted, is not in conformity to reason, although admitted in the common law of England. Daniel, on Neg. Instruments, page 1. — It is a rule of the common law of England, that a chose in action, by tphich is meant a claim which the holder would be driven to his action at law to receive, could not be assigned. FOR LOWER CAXADA. 181 of the ovner liralty to an g, a security ;y of a Court part of the e thing was he lien can earing upon debt, by or oh payment iebt of sal- being given to whether 1 lien for it istitute the at a lien is le adds " it erson so as law? at the doc- ■d, is not in immou law a rule of action, by be driven ned. Parsons' Merc. Law, p. 407. — By the common law of England, if the contract be assigned, the action must be brought in the name of the assignor, and so in tlie State of New York, until the code, which provides tliat all actions are to be brought by the real parties in interest, wliich is the principle of our own law. 3 Blk. 50. — This princii)le of the common law, and the administration of a distinct sy.stcm of jurisprudence by distinct tribunals of law and of equity, is peculiar to Eng- land and the cn'onies which derive their origin from England, and is uot known to any other country. There is no such principle in the civil law as that a chose in action or a lien is inalienable, and that it cannot be assigned or transferred to another person so as to give him a right of action in rem as assignee. And if it can be assigned, then the action must be in the party to whom it is transfun-ed. Coote, p. 19. — " Not only is the lien extinguished by the payment of the debt by or on behalf of the owner of the res, but also when the payment is made by another person without the direction or privity of the owner, e. g., wliere a mortgagee has paid seamen their wages in order to save the vessel upon which he has security from being wasted by their action, the lien is equally extinguished, and cannot be revived in the person of the payee, who, accordingly, has no right of action in the Court of Admir- alty in respect of his advances." The writer cites no decisions in support of this latter assertion. And we find that where a ship owner has paid a sum of money in order to release the ship and cargo from a claim for salvage, that he has a lien on the cargo for the proportion of those expenses payable to him by the owners of the goods. Pritchard, vol. 2, page 817, No. 791. All Courts of Admiralty in Europe are governed by the civil law, and, therefore, the party in England may libel there for execution of a sentence in them. In the common law courts of England, though a bond, being a chose in City of Manitowoc. 182 CASES IN THE VICE-AI>MIKALTY COUUT City of Manitowcm action, cannot be assigned so as to enable the assignee to sue in his own name, yat in equity a bond is assignabbi fur a valuable consideration paid ; and the assignee alono becomes entitled to the money, and in the common law courts, several matters are now assignable by acts of Par- liament, whicli were not so in their own nature, i)romiss(.ry notes, bills of exchange, bankrui)t effects, &c. Blatchfunl ige 324) : n has, as hat portion for repairs ' preceding the Adniir- ling one in inuance in it for a full laater, and lies for its •editor." proposition •ttomry, so in rem as The Louisa, as reported in :3 W. Roh. 100, also 2 Roh. 22, and :i Roh. 99, is, that when a ])ers()n acting as the agent of tlio salvors has iidvanced money to them in antici- pation of salvage, the court will not aUow him to enforce his claim for reimbursement against the property in the hands of the court. The Judge said : " The claim is for the payment of a debt contracted solely upon the personal security of tlie salvors, and to allow this might be highly detrimental to the interests of the salvors themselves ; it cannot be allowed to be converted into a lien upon the projierty in the hands of this court." The Janet Wilson, 1 Swahry, ;.{G2 : — This case was, where \V., u ship owner, paid certain wages and other neces- sary disbursements after a bottomry bond had been given on the ship; tiie ship was sold at the suit of the bond holder, and W. applied to be reimbursed. The above pay- ments to be made out of the proceeds in the registry, which, if W.'s application had been granted, would not have been sufficient to meet the bond. Held, that for such payment made without application to, and leave from the Court, W, was not entitled to be reimbursed. Dr. Lushington said : " I have great doubt whether, where wages have been earned prior to the giving of a bottomry bond, a mariner has a right to be paid before the bond holder ; that depends on circumstances ; it might destroy the very purpose for which bottomry bonds are granted, and would be exceedingly pre- judicial to the maritime interests of the country." 13 Q. B., 167. Briggs vs. Merchant Traders, &c. The plaintiff had obtained possession of the ship and cargo on entering into recognizances as a security for the whole sal- vage. The vessel then sailed, and was totally lost v/ith the cargo on board. Plaintiff was obhged to i • •■ ae amount of his recognizance. Held, in an action against the under- writers, that plaintiff had a lien on the cargo for that rate- able portion. 13 Jur., 787. A ship owner who has paid the salvage to regain possession of the ship, has a lien upon the goods for the amount of the contribution. CiTv or MANITOWfiC 184 OiTT or MANITOWOr, CASES IN THE VICE-ADMIIULTV OOUIIT 18 L. J. (Q. B.). 178.-It was argued that thoro minU ne a l,ni in ^prlh/ i„ .oHpt-ct of tho inorH-v pai.l l.y the plaintifr to tho salvors, hut Diat at law a riKht cf lim is 2>ersonal By the Cu«r^-_The plaintifi; who paid the salvage, has a //f?j. Itoh. 288. The Juhn.-Tn the Instance Court, warrants aganist the j.roeeeds on the j-art of material men were sus- tained against the general creditors. Williama and Bruce, Adm. Practice, r,2.-At laiu a bottomry contract is regarded as a mere chose in action, and IS not assignable. But the Admiralty recognizes, though it discourages, the transfer of bottomry bonds There is no doubt that by the Itoman law. a subrogation of the creditor's privileges and hypothecs could be given to a party paying the debt. Percuriam.-'nM, City of Manitowoc is a foreign vos- sel. She is owned in the United States, and after l.-aving the port of Quebec on a voyage to Liveri.ool. was, in the month of August last, wrecked on the west end of the Island of Anticosti. While there, a written agreement was made at Quebec, between Messrs. J). & J. Maguiroand three per- sons of the name of Angers, the former acting in the matter as agents of Homer Glass, her owner, whereby tlu. Angers agreed to bring the City of Manitowoc to a wharf at Que- bee. for the sum of «2,000, but contingent upon their successfully doing so, and for 50 per cent, on her materials saved. Success having attended the exertions of the salvors she was brought to Quebec, and on the 8th of Octob^-r last a notarial deed of assignment was made, whereby the Angers, for an alleged sum of $2,000. assigned to D & J Maguire the $2,000 payable to them for salvage services.' and thereby declared that they made over to them also thei^ l%en for this amount upon the vessel. D. & J Maguire now claim this, and other sums paid by them for pilotage ropes, provisions, seamen's wages, transport of materials, &c' IhQ motion for the decree was made by Mr F. A Andrews, Q. C, and in support of it he argued 'that TIT there njif,'lit [iiiid liy tho it (jf lif7i in 'ho puid tlie «rt, warnuits 11 wuro 8113- -At law a • action, and i3s, though it subrogation Id be given oreign vcs- ftor leaving rt'as, in tljQ E" the Island ; was made I three per- the matter the Angers irf at Que- Lipon their r materials he salvors, Jtober last, ereby the D. & J. e services, also their Maguire [■ pilotage, erials, &c. fr. F. A. jued that FOR i,OWEK CANADA. 185 the salvors eoidd assign their claim for a valuable considern- City op tion, and that the assignment carried with it a lien upon Manitowoo. the vessel, so as to give this Court jurisdiction in rem. The novelty attending this demand for a judgment against the City of Manitowoc, has induced this Court to call the attention of the party interested, to the c^uestion of juris- diction. The commission of the.Tudge of this Court («), empowers him to hear and determine causes according to the Civil and Maritime law of th(i High Court of Admindty of Eng- land. In tlu! adniinistmtion of that law I am not aware that a third imrty has ever teen allowed to recover against any vessel, or to mnk upon the proceeds of a sale of any shij) upon an assignment of a salvage claim, or of any other claims of tho nature of those stated in the account of the promoters. No case has been cited to prove that the High Court of Admiralty has sanctioned a proceeding in rem at the instance of an assignee in these or similar cases. On the contrary, it holds that a lien may be extinguished in various ways, as by payment of the debt by or on behalf of the owners of the 9w,or by a payment made without the direction or i)rivity of the owner {h). It was decided by that Court in the case of the Louisa, that a party advancing sums of money to salvors, has no claim in the Admiralty Court against the sum awarded to them in respect of such salvage (<;). In the same case, upon a second application (), de- cided in the District Court of the United Staters fur' the northern district of Now York, it was held that an assign- ment by a mariner of his wages confers upon his assign -e no right to maintain a suit in rem against the vessel" for the recovery of the wages assigned ; that " the right of' the mariner to proceed against the ship in sped,: is conferred upon him for his own exclusive be-'efit. It arises by iui. plication, and exists independently of possession. Its object is the more certainly to secure to him the hard-earnjd fruits of his pfjrilous and useful services. When, therefore, Ida wages are paid, no viutterbi/ whom, the design of the p'rivi- lege is answered ; and, to say the least, it is very (luestiun- able whether he would be benefited by the capacity to transfer it to another, for, if this power would sonietimea enable him to obtjiin immediate payment, it would also ex- pose him to impositicm through his credulity and proverljial improvidence;" and, again, "the petitioner cannot justly complani of being denk'd the privilege of inaintaining a suit in rem m the Admirdty. The ordinary forms of remedy in favor of an assignee of a chose in action are open to him in common with all others." The same reasons apply in the case of salvage, as may be seen ni the case of the bark George Nicholson (<;), decided in Admiralty in the eastern district of Louisiana, wherein It was held that an assignment of a claim for salvage divests the Ivn originally existing in favor of the salvors, an.l con- fers no right on the assignee to claim reimbursement in a Court of Admiralty, and, also, that a lien for towage was also divested by an assignment of the claim. 0') 1 Parsons on Shippinir and Adm., 18G. ('>) 12 Law Rep, 21. (r) Newberry's Rep. 449. IM' FOR LOWER CANADA. 187 1', 111 tnioour- ' dotriinental iiitoJ Stiitos, ,1,'CS {'(.). lu tcliin (h), lie- itan, for the t im as.sit,'ii- liis assi,mi '6 le vessel, for right of the is conferred rises by ini- I. Its object ariud fruits lerefore, his af the i)rivi. •y (luestion- capacity to sometimes ;ild also ex- i })roverl)ial niiot justly ining a suit of remedy pell to him , as may be c), decided II, wheiviin ajf(! divests s, and con- 'meut in a )vvage was . U9. I have, consequently, come to the conclusion that the lien of the salvors of the City of Manitowoc was personal and inalienable, and did not vest in the promoters by force of the assignment, and the same with respect to the other claims against her, paid by them. But it is said, that a portion of the claims (that is ajnirt from tlu> salvage) is for necessaries supplied to the vessel ; and supi)lementary aHi- davits have been filed to show that they were so, and these I have carefully considered. To give these claims that character under the Yice-Admir.ilty Courts' Act, 1803, which gives this Court jurisdiction over claims for veces- sat-its (a), it will be essential to consider how and when it was that D. & J. Maguire made the advances in money or otherwise to supply the wants of the City of Manito- woc, She made a voyage to and from Quebec in 1877, and, on that voyage, their advances amounted $1,145, Before she sailed from Quebec in 1878 they wert, reduced to $738, but the account was so far increased that at her departure it amounted to $1,372.55, This sum, including the old amount and a new one, was debited to the owner of the vessel in 1878, to secure which there was given a draft of the master on the receivers of her cargo at Liverj)ool, payable to the order of D. & J. Maguire for £280 sterling, about the equivalent of the debt. She left Quebec in August, 1878, and was brought back to Quebec a wreck, where she now is. Under these circumstances, can the money advanced on articles furnished, now assume the nature of necessaries so as to constitute a valid claim for tliem under the statute referred to ? The Admiralty Court Act, 1801, 24 Vic, ch. 10, which preceded the Vice-Admiralty Courts' Act, 1863, conferred jurisdiction on the High Court of Admiralty of England over claims for necessaries, and in giving an opinion as to whether the supplies furnished to the City of Manitowoo were such, I shall adopt the language of the High Court of Admiralty as to the sense of the term ntcessariea. In (a) 2 Stuart's V. A. R. 255. CiTir OK Manitowoc. 188 CASES IN THE VICE-ADMIRALTY COURT M?k"owoc. *^' '^'' ""^ *^" ^°^t^««« FregeviUe (a), where the interpre- tation of the statute in this particular became necessary undor the Admiralty Court Act, 1861, Dr. Lushington, in rendering judgment, said that the term necessaries means primarily indispensable repairs, anchors, cables, sails, when immediately necessary, and also provisions; but, on the other hand, does not include things required for the voyage as contra-distinguished from the necessaries of the ship. He also said that in that case there was, in fact, an account between the ship owner and agent; aU the business was done by the plaintiffs' agents, the moneys were so advanced and so received, and the moneys received were sufficient to pay all necessary expenses ; and, he added: "In my judg- ment the arrest of the ship for the payment of the balance of an account of this description was not contemplated by the statute; the statute looks to an immediate necessity, not to the liquidation of a mercantile account where credit is given by the agent in the ordinary course of business. If I entertained this case, this Court might have to settle accounts between merchant and agent to an unlimited extent. I cannot so consider the statute." In this ease it appears that the City of Manitowoc was allowed to leave on two voyages without any claim for necessaries supplied by the Maguires; they were in the past and were not required for the future, when the wrecked vessel was brought back to this port. The debt was con- tracted upon the credit of the owner, and to him D. & J. Maguire must look for payment. In coming to this con- clusion, I by no means say that a loan to pay for necessaries indispensable for a ship cannot be recovered in this Court by the lender. On the contrary, it has been held that where a shipwright repaired a vessel and refused to let her out of dock until the repairs were paid for, a person who paid his hU. could recover in the Admiralty as for necessaries. (6), (rt) Lush, 333. (6) L. E, Ad. & Ec, Vol. 3, p. 37. The Albert Crosby. FOR LOWER VDA. 189 I do not regret that this Court is compelled to decline City of jurisdiction over the assignment of salvage, and the other Manitowoc. matters for which this suit is brought, not only because its "^ ^ efficiency would be impaired if it had to determine the validity of assignments and disputed accounts, subjects for mumcipal law and regulation, and involving delay, but be- cause, in the case of assignments of claims such as those in question, the assignors, the mariner and the salvor, may be subject to gross injustice where their wants compel them to accept a tythe of their due, for a claim admitting of no question. I express no opinion on the merits of "this case. As it is not opposed, I take it for granted that the claims of the promoters are well founded, and if they are, they have their remedy before the ordinary tribunals of the country to which they can apply for relief. The judgment is that the promoters take nothing by their motion. " 190 CASES IN TUn VICE-ADMIUALTY COURT Cybblr. Friday, 'ird October, 1879. S. S. CYBELR— McMillan. Where a Hteam-ihip overtook and sank a schooner Held :— 1 . That the schoone- was not to blame for not showing a stern light 2. That the steamship was in fault for not keeping out of the way of the schooner. Q„«re as to the change of sailing regulations in the matter of a stern light. This was a cause of damage promoted by Jean Francois Glasson, owner of the Alma Marir., a two-masted schooner of 27 tons, and in length forty feet, against the Cybele, a steamship of 1277 tons and 319 feet lon^ to* Judgment.— //on. Q, q, Stuart. The schooRfT Alma Maria was on a westerly course up the St. Lawrence, in about mid-stream, on the evening of the 29th September, 1878, and, at about 20 minutes past 7 o'clock, she was approaching the Islets de Bellechasse Joseph and Charles Picard, two brothers, were navigatina her; the former was master and at the helm, the latter forward on the look-out; their father was a passenger and there were no others on board. Tue evening was clear and starlight, the wind was light from the S.W. She had her four sails set and was making with wind and tide about three knots un hour. Joseph I'icard then observed a white light astern; about ten minutes afterwards he saw a red light which convinced him that a steam vessel was overtaking the schooner, but on a course which would avoid her. Shortly after he saw her green light, and then that she was overtaking the schooner so rapidly that he immediately exclaimed: " she xoill sink us!" Having scarcely made this observation, the starboard bow of the Cybele struck the Alma Maria on her port quarter and cut FOR LOWER CANADA. ^her into two pieces ; the three persons on board were picked out of the water by a boat from the steamship which pro- ceeded on lier voyage with them to Quebec. The charge made against the Cybele is that she viohited the 17th rule that "every vessel overtaking any other vessel shall keep out of the way of the said last mentioned vessel," and that her speed It) to llj knots wa. too rapid; which charge is met by the defence that her speed was reasonable, nine knots or nme and a half, and that the Alma Maria carried no lights. As respects the proper speed for the Cybele, this must altogether depend upon how near she was to the schooner before it could be abated, and in relation to the latter it is to be observed that she was all the while making over three knots, which would reduce any impetuosity in the steam- ship towards her by so much. With reference to the schooner's lights, the look-out of the steamship, John Macdonald, has sworn that he was looking over her fore-castle until within a yard of the schooner, that he then saw her green and red lights on her cabin floor, that one of the three persons on board had a cup in one hand and in another a bottle. This evidence may be dispensed with at once as untrue, particularly as the side lights were in their places at the time he says he saw them on the cabin floor, and were there found upon the schooner's wreck. This, and some other attempts to tasten impropriety of conduct on the persons in the schooner have been fruitless, and they were abandoned at the argu- ment. But the not showing of a white light from the schooner's stern is admitted, and was relied upon by the respondent as a proof of negligence, such as should preclude a recovery for her loss. It is true there was no lial,t shown from the stern of the schooner, and an attempt has been made by the respondent to prove that it was custom- ary under such circumstances to show a white light but the evidence as to any practice of the kind goes as much the one way as the other. Questions were put to one of the 191 Ctbele. 192 Cybele. CASES IN THE VICE-ADMIRALTY COURT Picards to draw admissions from him, that had he shown a white light the collision would have been prevented, but anything he has said has been qualified by the statement that there was no time to show a white light after he saw the steamship's green light,-and it may be said also such a result would necessarily have depended upon a proper look-out and the vigilance of the officers or pilot in charge of the steamship. It was argued that the showing of\ white light as stated was necessary under the 20th sailing rule, which provides that " nothing in the regulations to prevent collisions at sea will exonerate any ship from the consequences of any neglect to carry lights or signals, or the neglect of any precaution required by the ordinary prac- tice of seamen or by the special circumstances of the case " But the answer to this is obvious. The regulations specify the lights to be used and make no mention of a white light for the stern of a vessel ahead of another. They do pre- scribe a white light for a vessel riding at anchor, and had the Alma Maria exhibited one, and a colUsion had occurred she might have had no remedy. Her course was but slow and had she been taken for a vessel at anchor she might have been struck while moving to a point for collision. The question is one of law upon which the Court has no discretion to exercise. The established regulations say what lights shaU be used, and the Court cannot add to the number. It was so held in the case of the Earl Spencer (a), not long since determined in the High Court of Admir- alty. There Sir Eobert Phillimore, iu rendering the judg- ment of that Court, said, with reference to a smaU schooner the Merlin, which had been overtaken and run down by the Earl Spencer, a steamship, the former having shown no light from her stern : " I must consider this question with " reference to the particular case and the general law. First " as to theparticular case. The Elder Brethren were careful " to draw my attention to the fact that the crew of the Httle " schooner were only four in number. That the master was (a) 4 L. R., A. & E. 434. FOR LOWER CANADA. "engaged in steering and the three others in making sail "and, m their opinion, there was not time or opportunity to "have exhibited a light over the st^n. In this opinion I " agree, but I am afraid I must also consider what thegen- « eral law is. That law is to be found now exclusively in " the regulations for preventing collisions at sea. The re-^u- "lations carefully prescribe the occasions upon which lighta "are to be carried, and the character and positions of those "lights. It IS not denied that no express provision is to be " found for the exhibition of a light to an overtaking vessel. " Ihe second article of the regulation rules, that the lights " mentioned in certain following articles, and no others shall " be carried m all weathers, from sunset to sunrise ; and it is " clear that the case of an overtaking vessel was in the con- " templation of the framers of the regulations ; for article 17 " says : ' every vessel overtaking any other vessel, shall keep "out of the way of said last mentioned vessel,' and if it be "ever the duty of the vessel overtaken to exhibit a stem "light, here is surely the place where it would have been " mentioned. It is no secret, that great nautical authorities " are divided in their opinion on the subject of the advantage "or disadvantage of exhibiting a stern light.-It may be "proper that a regulation to this effect should be made. I "do not offer an opinion on the point * * • I am of " opinion that the exhibition of a stern light is not obligatory "on the vessel ahead." The same opinion I now express in this case, and shall pass on to the other questions which arise, observing, in the meantime, that by a recent order of Her Majesty in Council, the saiUng regulations adverted to by the Judge of the High Court of Admiralty, are to un- dergo changes, from and after the first day of September next, one of which wiU impose on the vessel ahead, when being overtaken by another, an obhgation to show from her stern a white or flare up light, so that "the advantaoe or disadvantage of exhibiting a stern light " will now be tested m foreign and in Canadian waters, should in the latter case the new regulations be made to apply. N 103 Cybelf. 104 CASES IN THE VICE-ADMIRALTY COURT 'JvnELB. Now, tlie main question is : Was it possible for the Cyb(>le to keep out of the way of the Ahna Maria while overtaking her ? Her speed was quite ten knots an hour, but, as has been observed, the schooner's rate of sailing was three, ■which would leave but a difference of seven, by which the steamship gained upon her. The pilot in charge of the steamship, at the time, remarked the appearance of the night, and has said that a schooner could be seen at the distance of half a mile. Macdonald, the 'look-out' of the steamship, saw the schooner five or six minutes before the coUision Uke a black spot " right a head," not larger than his head, the distance he cannot say ; he sang out to the bridge " something right ahead," the response to which was "all right" or "aye, aye." Afterwards, he saw the sails, thought it was a bateau and sang out " bateau close ahead ; " he then heard the telegraph bell to " stop her," and after that to reverse. The pilot could not have been the one who responded to the first hail of the ' look-out,' as he first heard a cry from the watch forward reporting a small vessel, and then he immediately ordered the helm • hard a-port,' and before this was done a minute elapsed. A free passenger, a pilot on board, named Labrecque, then came from below upon the bridge, seized the telegraph and signaled to 'stop her,' and immediately after 'full speed astern;' the wheel was then scarcely hard a-port and . the schooner was struck. The testimony amounts to this, that an object was descried from the Cybele right ahead, which was not looked after until it assumed the proportions of a schooner with all sails set, at a distance of about half a mile. At that moment, if not before, it became the duty of the steamship to slacken her speed, stop, or reverse full speed astern. Steamships are understood to possess the power of being brought to a standstill within the distance of their own length, and had this course been adopted at the proper time there would have been no collision. No satisfactory explanation has been given why the steamship ported her helm. She certainly seems to have FOR LOWER CANADA. done so more from impulse than reflection. Stress at the argument was laid upon the fact, that it is aUeged in the ^bel that the people on the schooner hailed to the steamer to go to the north^ Although they did so, it had no effect, hey were not heard. But it was quite natural for them to do so. because the steamship ^v'as following in the wake of the schooner, m the language of the witnesses dans les mSmeseaux Before she shewed her green light, she was mchned to the north, and if she had kept so sht ^ouldl have touched the schooner. In fact, had she either ported or starboarded her helm, the broad channel of the St Law rence admitted of her going to the north or south in p" Z:tX T\ "• ^"^^^ '''''■ '' ^-^«-^^'« state- ment be true tnat six minutes before the collision the schooner was seen directly ahead, a very small object, port- ng or starboardmg might have answered the punfose ; tZT'uT" T °'^'"' "" "^»-^«^^ -to a s'chooner wbch could have been seen half a mile off. then starboard- ing or portmg might still have served as well. The safest course was that which has been stated; she should have slackened her speed untU the schooner and her course were distinctly discerned. This, ordinary prudence required, and when done, keeping out of the way of the schooner would have been a very simple matter. The decree is for the damage sustained from the collision, and for costs. thethlnt''- ^"'"' ^- ""' ^""^ ""■ ^-^«-^-^^. for William Cook, for the steamship. 195 CYBEt.K. 196 CASES IN THE VICE-ADMIRALTY COUIIT Attila. Friday, 2Ut November, 1879. ATTILA.— Clift. The maritime law recognizes no fixed rate or speed for vessels sailing through fog. Where a vessel is in a fog she should be under sufficient command to avoid all reasonable chance of collision. Where a collision occurred in a fog between two sailing vesseln, one lying to and the other running free, and the fog was so dense that their light«, respectively, could be seen but within from 16 to 20 seconds before collision ; held, that the speed of the vessel running free was too great. The Court will not receive as evidence depositions of persons pro- fessing to be skilled in nautical affairs as to their opinion upon any OMW. This was an action promoted by Sir Hugh Allan and others, owners of the iron sailing ship Pomona, to recover the damages sustained by their vessel, through a collision which occurred in the Gulf of St. Lawrence. Judgment.— FoM. G. Okill Stuart. This is a suit brought by the owners of the Pomona, Isbister master, a sailing ship of 1,199 tons, against the AttUa, likewise a sailing ship of 1,146 tons, and is attended with more than usual interest. It brings under notic*; a collision, and the speed with which sailing vessels may run through fog in the fair way from the Atlantic Ocean between Cape Kay and St. Paul's Island into the Gulf, and thence into the broad estuary of the Eiver St. Lawrence. The question is one of vital importance, as it affects very materially the safety of life and property in the navigation of these waters. Between the hours of one and two in the afternoon of the 24th May last, the Pomona was about 50 miles to the FOU LOWER CANADA. S. E. of St. Paul's, on a voyufr,, f,,„„ Dundoo to :\r..ntival. She was sailing before the wind, her euurse N. \V A N until inidnight. and in a fog approaching the entmnc'e of tht (ndl between St. Punl's and Cape liay. Tlie n.a.ster feiirAd of collision with otiier vessels, then had her br.,i,.d>t to the wind on a course E. with the wind from tJu- S s"k She thus continued headreaching, as it has been termed and making from one and a half to two knots an hnur until between two and three o'clock on the morning of the -'oth when there suddenly appeared to tlie persons in char.re of her a red light bearing on her beam from a distan,". of fifty to one hundred yards. This was the red light .,f the Attda. The helm of the Pomona was immediat.dy star- boanled, but before it could act, and within twenty seconds from the moment the red light was seen fr.,m the IV.nu.na, the stem of the Attila came into collision with the b.nv of the Pomona, and caused very considerable dama-^e On the other hand, the Attila, it appears, was from the 19th to the 25th of May in a fog; she was on a voyage fronx Savona m Italy to Quebec. She was running 'before the wind from S. S. E.. wlu,n suddenly a green bright Ijoht which was that of the Pomona, was seen at a distance of about ninety or a hundred feet. A collision appeared to the persons on board the Attila to be then certain, and that aU to be done was to ease the impending blow by portina her helm. This was done, but within ten or twelve sec.mdl from the seeing of the green light, the Pomona was struck by the Attila. The pica to this suit avers that the lights of the Pomona were bad. that she did not sound her fo-^-horn and had no look-out; but these averments may he dis- missed from consideration, as the contrary is proved and they have not been insisted on. It also alleges, that upon the starboard tack the Pomona vvas so placed upon the track of vessels bound inwards, that she could neither stay or wear, and that the coUision was caused by her being so. ^ " * 197 Attila. 198 KftljS,A, CASES IN THE VICE-ADMIHALTY COURT If tt quite tj je Hint there are a greater number of vessels b iind inwards t/wn outwards at the end of May, but it i.s also Tup thaf vessels from the lower ports, as well as vessels bound outwards at that mason , sail there on the same track art the Pomona did, and it uuiild certainly be very extraordinary if a sailing vessel, approaching the coast of St. Paul's, were to be heW in the wrong for lying to in a fog to avoid collision or rui. ' 'ng ashore. In this respect it ■ippears that a very salutary caution had been impressed on the master of the Pomona by her owners, and the Court is of opinion that in obeying his instructions he acted wisely. Now, it was said in defenr.o that should the Court be of opinion, as it now is, that the matter pleaded is not so proved as to fasten blame on the Pomona, the case is an inevitable accident, as the persons in charge of the Attila acted with ordinary care, caution and maritime skill- Tli's ground would imply innocence of offence on each side, 80 that the loss sustained from this collision would fall on each one sustaining it. This, it seems to me, should hav j been specially pleaded, as it is rather inconsistent to charge a master of a ship with gross negligence, and, failing to prove it, then to turn round and say that he acted with care, caution and maritime skill, and that by him and the party complained against, a collision could not have been avoided. To support this defence it is said that the speed of the Attila was moderate, that it did not exceed six knots an hour, that this rate was customary during fogs at the entrance of the Gulf, and that there was no time to avoid the collision after the Pomona's light was seen. Had a special plea been filed with such averments and objected to, they would have been expunged by an order of this Court. As the matter stands, a small volume of nearly one hundred pa^es of illegal testimony has been : la,., .d to establish this defence, to which, however, objectira.s wi-n? taken by counsel and reserved. No less than nine persoiiS, masters of vessels, have been examined to prove that six or FOR LOWKR CANADA. 109 ar of vesflfils ly, but it is 11 08 vcHsela 1 the same Illy lio very lie coast of 'ing to in a a respect it impressed s, iiiul tho iictious he 3 Court be (led is not the case ia rge of the itime skill- I each side, aid fall on iould liav J t to charge failing to acted with m and the have been the speed I six knots )g3 at the i to avoid . Had a 1 objected sr of this of nearly a'l the same t the lower the upper about two FOR LOWER CANADA. miles. The master of the schooner had been for some time before she passed the upper lightship on the look-out in her bow, and a very experienced mariner was in charge of her helm until the collision, and their evidence, confirn:ed by the passengers and crew, is clear and positive that she kept her course upon a wind scarcely enough to keep her to it until the Govino struck her. At that moment the helm was starboarded to ease the blow, but without effect from the want of wind. As respects the evidence on the part of the Govino, it is by no means so sa ^sfactory and is quite conflicting on a very material point. She was in a place where the naviga- tion requires great care and caution ; the channel in the Traverse is stated to be about a quarter of a mile wide for large ships, and half a mile for smaller ones. The Govino was making six or seven knots over the ground, and the schooner by sail and drift was making about four, so that their approximation was at the rate of a mile in six or seven minutes. Supposing it to be true that the schooner was seen from the Govino as far ofi' as two miles by her red light, as stated by the witnesses on her behalf, it is a matter of great uncertainty as to what time elapsed before she showed her green alone to the Govino, and the case depends in a great measure on this point. The mate of the Govino, who was on her bridge with the pilot in charge, has said from five to seven, and her look-out ten minutes had so elapsed, and according to the pilot, the green appeared immediately after the red was shut out at a distance of about three hundred yards. If the red and green lights did disappear at all, it was the duty of the Govino, as she knew that there was a sailing vessel meeting her on a piece of water dangerous for navigation, to have slackened her speed immediately, and not doing so subjects her to the imputation of negligence. The conclusion that I have come to is, that the look-out on board the Govino was bad, and that by reason of its being so she came down upon the schooner without seeing her until too late to avoid her. 205 Govino. 206 CASES IN THE VICE-ADMIBALTY COURT GOVINO. That the look-out liad been careless and did not see this schooner in the first instance as soon as he should have done, is evident from the statements of the pilot who had the Govino in charge. The look-out has sworn that he reported the red light of the schooner to the bridge, and the pilot has stated that he did not report the red light, but a light, and that he (the pilot) had seen ihe red light five minutes before the look-out reported a light. If this look-out was so in- attentive as not to have seen the red light from the forecastle until five minutes after it was seen from the bridge, it is not at aU unreasonable to suppose, that from like inattention he did not observe the green light of the schooner during the ten minutes, in which he did not see it. The statement of the pilot as to the schooner coming round and showing her green light in the short period within which he has said she did so, when it is admitted on both sides that there was little or no wind, is to me incredible. Whether I take the evidence for the promoter or the respondent, I must come to the conclusion that the Govino was in fault. By the former, she should have seen the schooner's green light for more than a mUe before the colh'- sion, and by the latter, after having seen the schooner's light, red or green, she should have slackened her speed so that, in either case on a nearer approach, she could have avoided her. There is another question which was raised, as to the liability of the Govino for consequential damages. It appears that after the collision the schooner drifted below the lower lightship and there came to anchor. Finding that she was so disabled that she could not prosecute her voyage, her master determined to return to Quebec at the expiration of an hour or so. Upon her return a portio i of the wreck under her keel and the loss of her forerigging so impeded her steerage power, that in thick weather she ran and re- mained aground for a short time, which occasioned further damage. It is said that this is not chargeable against the Govino. I do not agree. The rule adopted in all similar URT d not see this uld have done, who liad the lat he reported d the pilot hag it a light, and ainutes before )ut was so in- the forecastle e bridge, it is ce inattention looner during 'he statement I showing her he has said lat there was Doter or the t the Govino ve seen the 3re the colli - e schooner's tier speed so could have I, as to the aages. It ifted below inding that [ler voyage, ! expiration ' the wreck impeded an and re- ed further gainst the all similar FOR LOWER CANADA. cases is this : "All the subsequent damage arising from a collision must be borne by tlie vessel causing tlie damage, unless it can be shown by clear and positive evidence that any part of that subsequent damage arose from gross negli- gence or gi-eat want of skill, on the part of those on board the vessel damaged." (a) This matter will be left in its entirety to the Registrar and Merchants, and should the respondent find reason to obj(>ct to their report, the Court will decide upon his objections to it. There was another point raised at the argument, which, altliough it may not call for adjudication in this instance, deserves notice. It was said that the Govino did not stay by the schooner until the master had ascertained that she had no need of further assistance. By our own Dominion Act respecting Canadian waters, failure in this respect, in the absence of proof to the contrary, will impute the colli- sion to the wrongful act of the person in charge, should such collision occur in Canadian waters. But should a collision happen outside of Canadian waters the master or person in charge, under Imperial legislation, the Merchant Shipping Act, 1873, would be under hke circumstances chargeable with a misdemeanor, and, if a certificated officer, his certificate might be cancelled or suspended. I am not called upon to say, as this case can be determined without my doing so, whether the evidence shows absolutely that the master of the Govino was guilty of neglect of duty in this particular. I may say, however, that he did not stop at the moment of collision but allowed the steamship to go on. It is true that he inquired if the schooner had a boat and was told she had, but at the same time he was requested to wait p'-d he did not. I merely allude to this part of the case now, that persons in charge of vessels arriving at this port may feel that the provisions of law adverted to will, with a view to the protection of life, be in all cases (a) The Pensher, Swabey 213. 20/ Govino. 208 GOVINO. CASES IN THE VICE-ADMIRALTY COURT occurriug Within or without Canadian waters, most rigidly enforced should the occasion require it. The judgment is for the promoter with costs,— the damage to be settled as usual. C. A. Pentland, for the schooner. William Cook, for the steamer. FOR LOWER CANADA. 209 Friday, 6th February, 1880. CANADIENNE.— Beaudet. seaman's wages. Where a statute required the execution of a warrant or process under an ordor of two Justices of the Peace for seamen's wages to be author- ized by the Judge of the Vice-Admiralty Court, Held, that the enact- ment imposed upon the Court a duty to supervise the proceedings of the magistrates. It appearing that a warrant and process of two magistrates, issuedfor the sale of an undivided interest in a vessel, had not legally issued, a petition to authorize them was refused. Per curiam.— A. petition has been presented to rae on tde part of one Ovide Beaudet, a seaman, setting forth that on the 5th day of December last, he obtained judgment in a suit brought by him against one Francois Thibaudeau, a trader, for wages as a sailor, amounting to S72.67, before two justices of the peace in the city of Three Rivers, by which judgment the sale of 32 shares of the schooner Can- adienne, belonging to the defendant, was ordered ; he has prayed that this Court wiU, in conformity with the 123rd section of the Dominion Act (37 Vic, ch. 129, respecting the shipping of seamen), authorize the execution of a war- rant or process of the justices for the sale of the thirty-two shares of Thibaudeau. This I believe to be the first appUcation of the kind made to the Court, and as one materiaUy affecting the shipping interest it has met with mature consideration. The sections of the Statute which are to determine this matter are 52, 53, 54 and 55. By the 52nd, two justices of the peace, acting in or near the place where service by a seaman has terminated, may, upon complaint on oath, sumx. on a master or owner of a vessel to appear before them on . demand for wages under CANA- DIENNE. 210 Cana- DIENNE, CASES IN THE VICE-ADMIRALTY COURT $200. By the 53r(l, an order for payment by the justices is final. By the 54th, if tlie amount awarded is not paid within 24 hours, a warrant of distress may be issued against the goods and chattels of the defendant, and by the 55th section, if there be not sutHcient levied under the wan-ant, the justices may then caust; ,lie amount of wages and costs to be levied on the ship, the tackle and ai)parel,and should the ship not be within the jurisdiction, the defendant may be imprisoned in the common gaol of the Ic :ality for not less than one, nor more than three, months. With the petition tliere has been submitted a warrant under the hands and seals of the two justices, directed to the bailiffs and constables of the district of Three Kivers, f )j the sale of the 32 undivided parts or sliares of Thibaudeau. In this document the proceedings before the justices ara given in detail, but the complaint or summons has not been produced, neither has the order or judgment or the war- rant of distress required as already stated by the 54th section. The returns of the seizing ofhcers are also want- ing. In the absence of these I am caUed upon to give eff-ect to the 123rd section of the Act, whi -1; is as follows: " Nothing in this Act shall authorize or justify the execution of any warrant or process of any justice of the peace within the jurisdiction of any Court of Vice-Admiralty, unless such execution has been previously authorized by the judge." Upon the production of a warrant only under the hands of two justices of the peace it seems to have been imagined that the judge of this Court is to be confined to the discharge of a mere ministerial act, the endorsement of the warrant. This is manifestly an error; the intention of the Legislature was that a power of supervision should be exercised by the Court, so as to restrain Ulegal acts of justices of the peace. The case of the Haidee (a), decided by this Court, has furnished an instance of irregularity committed by justices of the peace in the exercise of a like jurisdiction ; and the 123rd section, I have no doubt, was passed to prevent a recur- («) 2 S. V. A. C. 2.5. JBT y the justices L'd is not 1 11 1 ill issued ugaiust by the 5 5th ' the warrant, iges and costs il, and should iidant may be r for not less .'arrant under rected to th« e Kivers, f.>) Thibaudeau. justices ara has not been or the war- )y the 54th e also want- pon to give 1 as follows : le execution )eace within unless such e judge." r the hands n imagined le discharge he warrant. Legislature ised by the !■ the peace. Court, has ^justices of lthel2;^rd it a recur- KOU LOWKIl CANAI).\. ronce of (UlKculties sucli as it proseuti. Tiie 12;ird -, i \nt of such claims. This was a cause of possession, civil and maritime, pro- muted l)y one of tho owners of the ship Edward Barrow, to restrain her from proceeding to sea from the port of Quebec, until security was given to the extent of the promoter's interest in the vessel for her safe return to the port of Halifax, where she was registered. Upon several of the part owners appearing under protest, and pleading that the cause was not -vithin the jurisdiction of the Vice- Admiralty Court at Quebec, the following judgment was rendered : Per curiam.— This case presents a question of jurisdic- tion under the Vice-Admiralty Courts Act, 1863, which confers jurisdiction in the tenth section upon Vice-Admir- alty Courts over " claims between the owners of any ship registered in the possession in which the court is estab- lished, touching the ownership, possession, employment, or earnings of such ship." The Edward Barrow is a vessel of 958 tons, and the promoter. Troop, is one of the owners to the extent of sixteen sixty-fourth parts or shares valued at $7,000 or thereabouts. Being dissatisfied with the man- agement of this vessel by John Hay and others, the remaining owners, Troop has caused her to be arrested under process of this Court, for the purpose of restraining her from proceeding on a further voyage until bail shall be given for the safe return of her to the port of Halifax to FOR LOWEtt C.VNAUA. 213 ■which aho bolon<,'3, to tlo amount of \m shiircn ?<7,oi»(). The .'Agistor of thi! vosh' 1 ,sh(>\v.s that sho was rc;,'iHt('rc(l at Halifax, in Nova Scoti ., ouc of thu i»ort.s in the Duniiiiion of Canada, The piuiinds upon which it is chiiiutMl that this Court has jurindiction to restrain this vossid from pro- ceedinjf fiirtlicr witliout security liciii"; ^'ivcn, iire, tliiit in law, the Dominion of Ciiuuda, eomprisinj^ sevcrid ports, ia now but one possession, and beinj,' siicii, this Court litis a concurrent jurisdiction with the Vice- Admiralty Court at Halifax to f,'rant the prayer of the promoter. iJut lor several of the ])art owners an ap})earanc(! uuficr ])rotcst to the jurisdiction, followed by an act un.icr jimteit, has been filed, to the effect that the Edward Harrow, not being registered in the Province of Quebec, but in Nova Sco'ia, the case is not cognizable by this Court, and this is the (|uestion now to be determined. There is no doubt of the Dominion of Canada being for certain purposes a possession of the Crown, and that, although the several provinces of which it is composed have been in a measure, as it were, absorbed, .still in many respects their individuality and autonomy renuiin intact. By the Imperial Act, 32 Vict., cap. 11, being an act for amending the law relating to the coasting trade and Mer- chant shipping in British possessions, known as the Mer- chant Shipping (Colonial) Act, 1869, it is enacted in the 7 th section that " in the construction of the Merchant Shipping Act, 1854, and of the acta amending the same, Canada shall be deemed to be one Biitish possession." This enactment is preceded by another in the same statute which declares that the term " British possession," means any territory or place situate within Her Majesty's Domin- ions and. not forming part of the United Kingdom or of the Channel Islands or Isle of Man, and all territories and places under one legislature, as hereinafter defined, are deemed to be one British possession for the purposes of such act. It does not, from the provisions of this act, so far as the Court is able to judge, or of any other statute, KnwAnn Uabuow. 214 Edward lUliUoW. CASES IN THE VICE-AUMIRALTY COURT api)ear that the provision of the Vice-Admiralty Courts Act, 1863, has been disturbed, or that an extension of the powers of Vice-Admiralty Courts has been effected so as to give them jurisdiction over claims between owners of any ship touchin},' her ownersiiip, possession, employment, or earnings, unless the ship is registered in the possession' where the Vice-Admiralty Court is to exercise its jurisdic- tion. The Merchant Ship])ing (Colonial) Act, 1869, whicli has been referred to, has conferred upon the Dominion the character of a Brittisli possession in the construction of the acts referred to, and no more, and I do not see how it can be applied to the Vice-Admiralty Courts Act, 1863. In the course of the proceedings in this case, it has been said that some of the owners of the Edward Earrow exer- cise a control over h.>r to the prejudice of the promoter, and abstain from ei ing a ])ort in Nova Scotia, so as to avoid an investigation into their management of her. It would be, no doubt, most beneficial if a concurrent juris- diction in the matter in question were given to all the Admimlty Courts establislied in the Dominion, that is, where tlie vessel is registered within it, but until Parlia- ment so provides, the authority must be confined to the particular court having jurisdiction where the vessel is registered. The act on protest is therefore maintained. Andrews, Caron, Andrews and Fitzpatrick, for Tro- meters. Irvine and Pemhertooi, contra. RT FOR LOWER CANADA. 215 ralty Courts nsion of the [fectod so as n owners of !ini)loynaent, Q possession its jurisilic- 1869, wliich oininion the iction of the how it can 863. it has been larrow exer- e promoter, ia, so as to of her. It rrent juris- to all the »n, that is, ntil Parlia- ned to the 3 vessel is itained. t, for Pro- Friday, 23)d July, 1880. ATALAYA.-EvK. Uimn the representationH of the Consul-iJtiieial of Sj>niu for Cannda an Araericau vessel was detained and her cargo taken out and «enrched, by virtue of a warrant under the hand of the Governor-General of Canada, upon a charge of having on biard arms and munitions of war, deHtined for the use of Cuban Insurgents, contrary to the provisions of th(( Foreign EulisUnent Act, IHiO. Held : 1 . That the charges against the vessel were not supported by facta to justify her detention and search. 2. That hearsay evidence under the circunistauces waa inadmissible. ii. That the vessel should be released : — and 4. That an indtmnity to the owner is payable by the Commissioners of the Imperial Treasury under the provisions of the Act. Costs in such a cose will be allowed against the Crown. This was an application by James H. Bogart, of New Atalava. York, owner of the American brigantine Atalaya, under '~-'~^^— ' the twenty-third section of the Foreign Enlistment Act, 1870 (33 and 34 Vic. cap. 90), wlierein he prayed for the release of his vessel, detained in the port of Quebec, on an alleged breach of the i)rovisions of the Statute, and for a declaration by the court that there being no reasonable or probable cause for her detention, he was entitled to an indemnity in costs and damages. The circumstances of the case are fully noticed in the judgment this day rendered. Judgment. — Hon. 0. Okill Stuart. The Atalaya, abrigantine of 417 tons, Eve, master, was built in the State of Maine, and belongs to James H. Bogart, a citizen of the United States, residing in the city of New York, and he is the applicant in the case now under con- sideraticm. The Atalaya was purchased by the applicant, a member of the firm of E. A. Tucker and Co., a continuation of Tucker 216 Atalata CASES IN THE VICE-ADMIRALTY COURT and Lightbourne, merchants in New York, engaged in an extensive West India business, principally with Cuba, since the year 1854. The correspondents of this firm at Cienfue- gos, in the Island of Cuba, are Thomas Terry and Co., a very wealthy firm, two of whose members are Spaniards, and whose loyalty to the Crown of Spam is admitted. From this firm, R. A. Tucker and Co., among others, received car- goes of sugar, and sent them in return lumber, cooperage and general merchandise. The extent of the business may be mferred from E. A. Tucker and Co. having received in one year from the Cuban house, sugar to the value of from six hundred to seven hundred thousand dollars. The applicant became sole owner of the Atalaya by pur- chase on the 8th of July, 1878, date of the bill of sale She was registered at New York on the 4th of September following. On the 2nd of April, 1880, Thomas Terry and Co consigned 550 hogsheads of sugar, valued at about $40,000, to R. A. Tucker and Co., who consigned them to the firm of Gillespie, Moffatt and Co., at Montreal. The latter were at the same time requested to purchase a return cargo of lum- ber for the Atalaya. This was done. The purchase was from the Export Lumber Company, whose wharves are at Hochelaga, the eastern extremity of the city of Montreal She arrived on the 17th of May, and landed her cargo at the Island wharf, in the western part of the city, when Eve her master, was directed by Mr. Gillespie, one of the consignees to drop down to the wharves of the Export Lumber Com- pany, and there take in the return cargo of lumber destined forCienfuegos. Mr. GiUespie, under the impression that the company's wharf was a private one, did not notify the bar- bor authorities of her removal as required by a harbor regulation, which subjected the master to a fine of £10 but which was remitted on Mr. GiUespie's error being submitted to the proper authority. A fuU cargo of lumber was then taken on board by a stevedore of the locality, from the wharves of the Export Lumber Company, the quantities delivered being checked by tally through an officer on FOR LOWER CANADA. 217 board the vessel and a person employed by the company on the wharf. The rule with United States vessels is for the master to deposit his register with their consuls on arrival. This was done by the master of the Atalaya, and when about to leave it was returned to him by the Vice-Consul- General for the United States, at Montreal. In the mean- time her manifest was signed by the master and presented to the Vice-Consul of Spain at Montreal, who signed and affixed to it the seal of his consulate. With her papers thus in order, she left Montreal in tow of the hired tug Hercules, to pass the city of Quebec on her voyage to Cienfuegos. She so left on the evening of the 2nd, and ar- rived at Quebec at about six o'clock on the evening of the 3rd of June. She was immediately boarded by a Custom House officer under the orders of Mr. Dunscomb, the Col- lector of the port, and she is still detained by him under a warrant of His Excellency the Governor-General. The validity of this detention is now the subject for considera- tion. By the 8th section of the Foreign Enlistment Act of 1870, it is enacted that if any person " within Her Majesty's dominions, without the Ucence of Her Majesty, equip any ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the military or naval service of any foreign State" (by the interpretation clause meaning any foreign prince, colony, province, or part of any province or people, or any peraon or persons exercising or assuming to exercise the powers of Government in or over any foreign country, colony, prov- ince, or pai't of any province of people) " at war with any friendly State, the offender shall be punishable by fine and imprisonment, ox either, at the discretion of the court, such imprisonment, if awarded, with or without hard labor, and the ship forfeited to Her Majesty." By the same section the despatcliing, or causing, or allow- ing to be despatched, any ship under the like circumstances, is attended with the same penalties. Atalaya. 218 CASES IN THE VICE-ADMIRALTY COURT Atalaya By the 21st section, any offic(3r of Customs in uiiy British " possession, as "a local authority," may seize or detain uny siiip liable to he seized and detained under the Act. The 23rd section enacts that if the chief Executive authority, in any British possession the Governor, is satisfied that there is reasonable and probable cause for believin},' that a ship within Her Majesty's dominions has been, or is being built, commissioned or equipped contrary to this Act, and is about to be taken beyond the limits of such domin- ions, or that a ship is about to be desiuitched contrary to this Act, such chief Executive authority shall have power to issue a warrant stating that there is reasonable and pro- bable cause for believing as aforesaid, and ujwu such warrant the ' local authority ' shall have power to seize and search such ship and to detain the same until it has been either condemned or released by process of law or in the manner in the Act mentioned. The owner of the ship so detained, or his agent, may apply to the Court of Admiralty for its release, and the Court sliall, as soon as possible, put the matter of seizure and detention in course of trial between the applicant and the Crown. And if the Court be of opin- ion that there was not reasonable and probable cause for the detention, and if no such cause appears in the course of the proceedings, the Court shall have power to declare that the owner is to be indemnified by the payment of costs and damages in respect of the detention, the amount thereof to be assessed by the Court, and any amount so assessed shall be payable by the Commissioners of the Treasury out of any moneys legally applicable for that purpose. By the same section, where no proceedings are pending for its condemnation, the Secretary of StAte, or chief execu- tive authority, may release the ship wichout security, if the Secretary of State, or chief executive authority, think fit so to release the same. On the arrival of the Atalaya at Quebec, the Consul-Gen- eral of Spain, El Conde de Premio Eeal, in company with Mr. Chauveau, Judge of Sessions and Police Magistrate, :|{T FOR LOWER CANADA. 219 ti any British ir detain any Aot. f Execntive )!", is satisfied for believing IS been, or ia ■ to this Act, such domin- contrary to have power ble and pro- luch warrant i and search been either the manner so detained, ralty for its )le, put the ial between I be of opin- ause for the )urse of the ire that the f costs and t thereof to sessed shall out of anj^ re pending hief execu- irity, if the r, think fit )nsul-Gen- pany with Magistrate, called on Mr. Dunscomb, Collector of the Customs there, Atalaya. and presented to him an nilidavit of a person named Jean Biiptiste Beau lieu. This affidavit , translated from the French language, is as follows : — " Before me, the undersigned Judge of the Sessions of the Peace, in and for the city of Quebec, this third day of June, ] 880, there appeared Jean Baptiste Beaulieu, of the city of Quebec, detective, who after being duly sworn, doth depose, declare and say as follows, to wit : — 1 am a detective in the police force of the city of Quebec. On Sunday, the thirtieth of May last, at the demand of the Consul-Gener.il of Spain, I accompanied from. Quebec to the limits of the Province, and as far as the limits of the United States, a person named Dufaure, residing at Cuba, who said that he was engaged by a Cuban InsuiTection Committee for the purchase of arms and munitions of war in Canada, which arms and munitions were to be despatched by ship to the insurgents in the Island of Cuba. In the execution of my duty of detective, and from the information -which I have received, I am informed in a credil>le way and I really believe that arms and munitions have been purchased in the Province of Quebec, and in the Province of Ontario, by the agents of a Cuban Insurrection Committee establislied at New York. I have this information partly from the person named Bufaure, who confessed to me himself that he was a member and secret agent of this organization, and he communicated to me the object of his journey to Quebec. "I swear, moreover, that I am informed in a credible "way, and I have every reason to believe that the arms and munitions, so purchased with the object aforesaid, have been deposited on board of a sailer named the Atalaya, now on her way to Cuba, and which wiU pass the port of Quebec within the next twenty -four hours. These arms have been loaded in a clandestine way on board of the said vessel in the port of Montreal. I am also informed that this vessel is being towed to Quebec at the same time as another, the name of which I do not know. CASES IN THE VICE-ADMIRALTY COURT "I make this deposition at the express request of Count Premio Eeal, Consul-General of Spain, who has received the same information from different sources, and I have signed, "J. Ete. Beaulieu. "Sworn before me at Quebec this 3rd day of June 1880. "^ ' "Alexandre Ciiauveau, J.S.P." On the day following an affidavit of the Spanish Consul- General was presented to the Collector which, translated from the French language, is as foUows : " Before me, the undersigned Judge of the General Ses- sions of the Peace in and for the city of Quebec, tliis fourth day of June, in the year 1880, appeared His Excellency Count Premio Real, who, after being duly sworn, doth de- pose and say as follows:-! am Consul-General of Spain in the British possessions of North America. My official residence is in the city of Quebec. According to informa- tion by me received from my agents and different sources, I have reason to believe, and in fact believe, that arms and munitions of war are hidden on board of a certain brig- antine named the Atalaya, now detained in the port of Quebec by the Custom House authorities, i^ceordincr to my information these arms and munitions were purchrsed m the Province of Quebec and elsewhere, by persons acting as agents of Cuban insurrectionists with the object of beinr conveyed into the island of Cuba for the use of these insur- gents, and the whole or a part of these arms and muni- tions have been hidden on board the brigantine Atalaya, contrary to the proclamation issued by the Government of the Dominion of Canada now in force, and to chapter 90 of the Imperial Act 33 and 34 Victoria, intituled: 'An act to regukte the conduct of Her Majesty's subjects during the existence of hostilities between Foreign States with which Her Majesty is at peace,' and I make this deposition JRT FOR LOWER CANADA. 221 lest of Count has received and I have iEAULIEU. ay of June, u, J.S.P." nish Consul- li, translated Jeueral Ses- !, tliis fourth Excellency rn, doth de- 'al of Spain My official to informa- ent sources, it arms and 3rtain brig- the port of ccording to I purchased •sons acting 3ct of heiui ihese iusur- and muni- le Atalaya, overnment to chapter uled: 'An 3cts during tates with deposition in virtue of the provisions of the said Act, and I have Atalaya. signed, " El Conde de Premio Heal. " Sworn before me at Quebec, this fourth day of June, 1880. "Alexandre Chauveau, J.S.P." At the urgent request of the Spanish Consul-General, the Atalaya was upon the first of these aflidavits seized and detained by the Collector, on the thiid of June. He also urged the Collector to have her cargo discharged so that a thorough search for munitions of war might be made, but this was declined as the Collector's duty terminated with the seizure and detention of the vessel, and in reporting the fact to the Secretary of State at Ottawa. On the fourth o. June, the Consul-General made his affidavit, and the Collector by letter made his report to the Hon. J. C. Aikins, Secretary of State, accompanied by the affidavits of Beaulieu and of the Consul-General. The next day, the fifth of June, the warrant of His Excellency the Marquis of Lome, Governor-General of Can- ada, was issued as follows : — " To tJie Collector of Customs, Port of Quebec : — " Whereas, I am satisfiv3d that there is reasonable and probable cause for believing that the ship Atalaya, now within the port of Quebec, has on board arms and munitions of war procured within Canada by certain agents of certain insurgents and insurrectionists in the Island of Cuba, now engaged in an insurrection and rebellion against the lawful authorities of Cuba, for the use and assistance of such insur- gents and insurrectionists, and that such ship and munitions are about to be despa jched to Cuba contrary to the provisions of the Foreign Enlistment Act of 1870, and of the law in that behalf. — Now, I do hereby, under the provisions of the said Act, and under the powers in me vested by any law or authority in that behalf, issue this warrant, and authorize 222 Atalaya. CASES IN THE VICE-ADMIRALTY COURT you with such assistance as may be necessary to seize and search such ship, and to detain the same until it has been either condemned or released by process of law. " Given under my hand this fifth day of June, A.D. eighteen hundred and eighty (1880.) " LORNE, " Governor-General of Canada." Immediately after the receipt of this warrant, the Col- lector caused a search of the Atalaya to be made, and for the purpose her cargo was discharged. While this was in progress, the applicant, on the 11th of June, presented a petition to this Court, wherein he represents himself to be a citizen of the United States of America, that he has been owner of the Atalaya sinee the 4th September, 1878, and that while on a trading vjyage to Cienfuegos with a cargo of wooden goods, 1G,895 pieces ox white pine goods, she had been seized under the warrant of His Excellency the Governor-General The petition sets forth the bills of lad- ing and other matters incident to the seizure, and concludes with the following aUegation :— " The arrest and detention of the Atalaya and all the proceedings consequent thereon, were and are illegal and unjust, and wholly without reason- able or probable cause." The prayer of the petition is, that the Court wiU place the matter of the seizure and deten- tion in course of trial between the applicant and the Crown, that it wiU order the release of the vessel and cargo, that It wiU declare that the applicant is to be fully indemnified by the payment of aU costs and damages resulting from the seizure and detention,— to be duly assessed. An order was made by the Court that the Crown should be notified of this petition, and subsequently an appearance was entered by the Hon. James Macdonald, Minister of Justice and Attorney-General for Canada pro regina, by A. R. Angers, duly authorized. The search of the Atalaya for arms and munitions of war continued to go on, her cargo was taken out and a JRT J OR LOWER CANADA. 223 to seize and 1 it has been r. June, A.D. of Canada." nt, the Col- ade, and for this was in presented a iself to be a le has been 1878, and 'ith a cargo goods, she ellency the bills of lad- i concludes i detention snt thereon, out reason- bion is, that md deten- the Crown, cargo, that Qdeninified g from the wn should ippearance linister of egina, by nitions of )ut and a thorough search made, which established that there were no arms or munitions of war on board. The result has shown tliat there was no truth in the information which the Consul-General of Spain had derived from his agents and different sources which led him to believe, as stated in his affidavit, that arms and munitions of war were on board the Atalaya, and that the same was deceptive and untrue. The unloading and reloading of the cargo, and the search under the direction of the C jllector, lasted from the 8th to the 16th of June. On the 23rd of June, the answer of the Crown to the applicant's petition was filed. After stating that there is an insurrection in Cuba, a possession of the Spanish Crown at peace with Her Majesty, and that the Foreign Enlist- ment Act, 1870, is in force in Canada by virtue of a pro- clamation issued pursuant to the Act, it proceeds to enum- erate grounds, which it is said, aftbrded reasonable and probable cause for the detention and search of the Atalaya. These may be classed under two heads : the iirst are occur- rences which took place before the Atalaya was seized and detained by the Collector, and the second, discoveries said to have been made during the search. Under the first head it is alleged : T. That about the middle of May last, 1880, reliable information was received in Canada that a party of Spanish sul)ject3 engaged in aiding the insurrection in Cuba had arrived in Canada to purchase munitions of war and a fit and proper vessel, and equip her for the carrying of the same from Canada to Cuba, to be used by the insurgents there. 2. That in the present month of June, reliable informa- tion was received that the Atalaya, then in the port of Montreal, was being equipped and furnished with muni- tions of war and arms, contrary to the provisions of the Foreign Enlistment Act, 1870. 3. That during the few months previous, an unusual Atalaya. 224 CASES IN THE VICE-ADMIRALTY COURT ATAI.ATA. quantity of munitions of war, to wit, over a million cartrid^'os witli a considerable quantity of jjowder were imiwrtud into Montreal. 4. That about the 28tli of May last, 1,192 packages of powder were, during the night time, unloaded from the ship Dunfillan, in the harbor of Montreal, and put on board a tug, about the time when the Atalaya left her berth there and took another berth at Hochelaga. 5. That the master of the Atalaya, at Montreal, gave instructions to the stevedore not to put a full cargo of tim- ber on board, but to leave an empty space between decks next the master's cabin, the only way to communicate with which was by a concealed entrance from the cabin. G. That on the 2nd of June, the Atalaya left Montreal in tow of a tug, and before her papers were signed by the proper authorities. 7. That the Atalaya delayed on her way to Quebec by night, a suspected agent of the insurgents and of the vessel having hurriedly left Quebec a few hours before her arrival. 8. That on the day of the arrival of the Atalaya at Que- bec, a small vessel left Quebec with a quantity of arms, it being rumored that they were to be transhipped beloNV Quebec. Under the second head the charges are : — 1. After the search of the Atalaya, her statement as to cargo and stores were found incorrect, and that she was victualed in excess of her requirements. 2. That a secret entrance from the captain's cabin was casually discovered. 3. That another secret recess in the captain's cabin was also casually found. 4. That these two secret places would likely be used for the stowage and carriage of munitions of war and arms, and contraband goods. 5. Several flags, and a flag bearing the Spanish colors with the letters T. T. & C, were found on board, and also URT FOR LOWER CANADA. 225 ion cartricl;^08 imiHjrtcd into I packages of from the ship t on boiii'd a : berth there )ntreal, gave cargo of ti ra- it ween decks ionunnnicate the cabin, jft Montreal gned by tlie I Quebec by of the vessel before her aya at Que- of arms, it pped belo\v 3ment as to lat she was s cabin was I cabin was be used for and arms, nish colors i, and also a flag having the color and device of the Cuban insurrec- tionary party, as well as other flags suscejitible of device in the Cuban insurrection to )kj used for the purjwse of deceiving the loyal subjects of the King of Spain and of Iielping and fraternizing with the insuiTectionists. 6. That the Atalaya had the appearance of a slave or Coolie trader. 7. That the Atalaya, when she left Montreal and when detained at Quebec, was sailing under a false register and false colors. 8. That she is a Spanish vessel owned by Spanish sub- jects residing at Cisnfuegos, and commanded by a British subject. 9. That upon the arrest of tlie Atalaya becoming known, the remainder of the insurrectionary party left Canada, and some surrendered. These matters, it is alleged, furnished reasonable and probable cause for the detention and search of the Atalaya. The answer of the Crown denies all the statements of the applicant. The question of law which now rests with this Court to determine is — Was there, or not, reasonable and probable caxise for the detention and search of the Atalaya? Upon an examination of tlie evidence, I find that the four last charges under the first head, which I have stated, may be discarded, as they are either unfounded in fact or have no bearing on the question. It is quite true that the master of the Atalaya did give instructions to the stevedore Avho stowed the vessel, to leave a space behind his cabin under the hatchway for the provisions of his sliip, but there is no part of the testimony which leads to the inference or belief that it was intended for arms or munitions of war. The Atalaya did leave Montreal in tow of a tug, but not before she was cleared or before her papers were properly signed. It is not true that the Atalaya delayed on her way to Quebec, except for two hours at Sorel, where the pilot of the tug thought it prudent to stop ; and as to a small vessel having left Quebec with arms there is no legal evi- Atalaya. 220 CASES IN THE VICE-ADMIIIALTY COURT Atalaya. denco of such being a fact having any bearing on the Atalaya. The charges against the Atalaya under the first head- which I have stated, are thus reduced to three. 1. Was there, on or before the detention of the Atalaya, a party of Cuban insurgents or their agents in this i»ro- vince, purchasing arms and munitions of war to ship for Cuba? 2. Was there introrluced into the port of Montreal, arms and munitions of wiir in a nuinner to justify a reasonable belief that they were to be exported by the Atalaya for the use of the Cuban insurgents ? 3. Was there legal evidence to justify a belief that the Atalaya was equipped with arras and munitions of war for the use of Cuban insurgents ? The evidence for the Crown, intended to establish these propositions, is to be fo-ind in the testimony of three per- sons, viz., Antoine Po Laval, Count of I'remio Real, whoso rank, as given by himself, is that of Eear-Admiral in the Royal Navy of Spain, and Consul-General and Political Agent for the Province of Canada, the British and Frencli possessions of North America, for British Guiana, &c., and that of two detectives employed by him, the one Jean Bap- tiste Beaulieu, whose affidavit has been given, and the other George Skeffington. The evidence of the Consul-General is to the effect that before the first of June 1 ist, he received iul'urmation from the Secret Service of his country that there were meetings of Cuban insurgents in the United States, at which they thought of transferring their operati )ns to Canada, and of sending ageut.s there to sound the country ; that it was decided to send them, that a few arras and some powder were sent from the United States, and that they were to be shipped by the Atalaya. This witness makes mention of a man of the name of Dufresne alias Dufaure, who called upon him at Quebec on the 30th of May; this person seemed to him to be one of the Cuban agents. His )URT •uaring on the tho first head. )f the Atttlaya, ts in this jtro- var to ship for Vlontreal, anna y a reasonable Italaya for the belief that tho ions of war for establish these f of three per- io Ileal, whose Ltlmiral in the and Political ih and Frencli iana, &c., and jne Jean Bap- iven, and the the effect that jrmation from ivere meetings it which they 'anada, and of ; that it was 2 powder were y were to be 3s mention of re, who called ; this person agents. His FOR LOWER CANADA. object was to obtain information from tho witness about what was going on in Canada, which he did not accomplish. On the 30th of May the witness asked tho Commissioner of Police at Quebctc to furiUHh him vitli a detective, and Beau- lieu was on that day sent to liim from the Detectives' oflice. On Beaulieu's arrival, tho Consul-(Jeneral ex{ilaiued to him that he wanted him for tho purpose of taking Dufresne (dins Diifaure, out of the country. Tho detective said that he iniiHt first have permission. He went for Mr. Chauveau, Judge of the Sessions, charged with the duties of a Police Magistrate at Quebec, who came, and to whom the witness explained what he wanted. Mr. (/hauveau spoke to the detective, who then said he was at the di3[)osal of the witness. Ho then employed Beaulieu to take Dufresne alius Dufaure, to the United States boundary line and leave him there, which he did. The reason assigned by the wit- ness for sending this man out of the country was "because ho was certain he was an agent ctf the Cubans, and, there- fore, not wishing to complicate Canada in this affair, he sent him away." At the close of his deposition the witness was asked: "At the time you sent him away had you any suspicions about the Atalaya ? " His answer was " No, not on that day;" and again, "Not on the .'')Otli May." Jean Baptiste Beaulieu has tesf '■ d tliiu on the 31st of May he had arrived at Montreal with Dufresne alias Du- faure ; he conducted him, while under the iniluence of hquor, to the boundary line at St. Albans, where he li nded him to the railway conductiir, who passed him over. The witness on the journey had a conversation with the man he was thus charged with. He said he was a stranger, and that he resided in Cuba, that he came to Canada to learn if there was a gang which had gone to Toronto to buy arms and munitions of war to be sent to Cu* a ; he said he was a Frenchman, that he had come to hire a bateau to send arms to Cuba, that he had an ass ciate at Montreal from whom he had st^parated to go to Quebec. This person made no mention of the Atalaya. This witness when at Mont- •'•'7 Atai.aya 228 OASES IN THE VICE-ADMIRALTY COURT Atalaya. real, fell in with George Skeffington, a detective. He re- ceived informatiou about arms and munitions of war to b«j sent to Cuba before the 3rd of June. Skeffington was the first to give the witness the name of the Atalaya, and being asked if he did not give Skeffington information and receive information from Skeffington in return, he has answered, " on going up I gave him information, and when I returned " he gave it to me." The witness was the first to inform Skeffington. George Skeffington, a witness for the Crown, has stated that he was charged with looking after a defiiulter from Cuba, and that he saw a certain man in Montreal, to whom he spoke about him. At a subsequent meeting with this certain man on St. James street, Montreal, ho said to witness " the man you were looking after from New York, has he anything to do with these Cuban filibusters ? " The witness said " what Cuban filibusters ? " he said, " why at present in the city of Montreal there are a lot of people with the purpose of going to Cuba." Witness said " 1 would like to know if there is anything in it, you may as well give me the information." He said " well, I would not like to get into trouble, if you promise not to make use of my name, I shall give you the information." He said, " there is a ship loading in this city which has arms and munitions of war on board." Witness said, " What is the name ?'' The " Atilda " was the name he gave witness. On a subsequent day, he continues. Detective Beaulieu came to Montreal to the witness' otiice and said he had received orders to see a man named Dufaure out of the city of Montreal, that he had orders from the Spanish Consul to see him out, and that he wanted assistance of the witness to see him out on the train, as he was a little the worse of liquor. Witness went to the Canada Hotel and saw Beaulieu leave on the train to put this man across the lines. Immediately after parting from Beaulieu witness telegraphed to the Spanish Consul the information he received ; he had an answer say- ing there was a mistake in the name, it must have been the RT ve. He re- of war to b*! jtou was the '^a, and being I and receive IS answered, in I returned rst to inform n, has stated faulter from eal, to whom ng with this id to witness i''ork, has he Tlie witness ly at present i)le with the would like to ft'ell give me )t like to get [my name, I lere is a ship itions of war .me ?" The a subsequent • Montreal to ders to see a real, that he fiim out, and B him out on r. Witness leave on the sdiatoly after ) the Spanish answer say- lave been the FOR LOWER CANADA. Atalaya. Witness then got a despatch from the Spanish Consul to go down to Quebec. Witness left on the night of the 1st of June, came down to Quebec, where he arrived on the morning of the 2nd. The first person he saw was the Spanish Consul, to whom he mentioned the information he received. At Quebec he communicated this information to Mr. Chauveau, with whom he talked the matter over. On his return to Montreal, on the 3rd of June, he went to the office of Messrs. Gillespie, Moffatt and Co., on other business, and among other things, mentioned that there were sus- picions against the Atalaya for having cartridges on board ; Mr. Gillespie smiled and said, " perhaps that is the reason she left and was away from the wharf. The Harbor Com- missioners took objection to that, and were going to fine her, but we were interested and settled the matter." The wit- ness has said that the Atalaya had left on that morning. Witness on that day, with Fahey,his partner, went round the town, as he knew " there was a good few Cubans in town." Some of them he followed into Charlie Crossen's, on St. James street. The same day the witness telegraphed to Quebec " that going along St. James street, Mr. Fahey and himself met a party in Montreal ;" he came to us and said, ' Do you call yourselves detectives ? " witness made the re- ply, " I do not know." He said, " You expected to find annnuuition and arms on board that vessel, did you not ? " Witness said " yes, certainly we did." Then he said, " you did not find them, they were transferred to another ship. If you give me three hundred dollars I will tell you the whole business." This the witness telegraphed to the Spanish Consul. On the day of his return to Montreal, the witness telegraphed Mr. Chauveau that his information about the ammuniticm being on board was con'ect. A man named Bowie told witness that he was outside of his tavern one night and heard a remark from some men who loaded the Atalaya, about tins going on board, and from this infornuu tion he inferretl that cartridges were packed in preserving tins. This witness has declined to give the, names of any tea* l' Atalava. 230 CASES IN THE VICE-ADMIRALTY COURT Atalaya^ of his informants, and the Counsel for the Crown has claimed "^ and obtained an exemption for him in this particular. The witness has received twenty-one dollars from the Spanish Consul to cover his expenses, boat hire to come to Quebec, and to give him the information he received ; he has an account for his services, and this he intends sending in to Mr. Angers, Counsel for the Crown. The witness has stated that he had no personal knowledge of any of the facts stated in his evidence. On the first question, as to there being Cuban insurgents or their agents in this province engaged m purchasing arms destined for Cuba, or as to there being any reasonable or probable cause for believing there were ; it may be observed that the geographical position of Canada, particularly those parts known as the cities of Toronto and Montreal, and Cuba, are such as to preclude the supposition that arms and ammunition would b-j sent from the United States, say from New York northward, 400 or 500 miles, to Ontario or Montreal, thence eastward upon the Eiver St. Lawrence, and afterwards southerly along the coasts of the Northern and Southern States, several thousand miles, to Cuba, when they could be shipped to some southern port of the United States, comparatively speaking, in the immediate vicinity of Cuba. The only evidence on this head is hearsay, and particularly the statement of Dufresne alias Dufaure. This man the Consul-General believes to have been, and he has said was, a Cuban agent. If he were so, he should not have been sent out of the country, but kept for the purpose of detecting the persons guilty of an infraction of the Foreign Enlistment Act; the best evidence to have been had was sent out of the way, and the Court is now required to de- termine without it, that there was reasonable and probable cause for supposing that arms were being purchased in Canada for Cuban insurgents. Then again, there was a supposed associate in Montreal, whose evidence could have been had on the subject, and he has not been produced. The sending of Dufresne alias Dufaure, out of the province FOR LOWER CANADA. 231 is, to say the least of it, a very unusual occurrence. If the Atalaya. man was sent off against his will, which it is to be presumed he was from the employment of a detective, the act was an illegal one, and the conduct of Beaulieu and Skeffington, as agents of the Consul-General in carrying out his wishes, was equally unlawful. The step, instead of being one cal- culated to obtain information, was one quite the contrary, and the reason assigned by the Consul-General that it was " not to complicate Canada," is very weak and quite insuf- ficient. There being no testimony on oath that persons in this province purchased arms destined for the Cuban insur- gents, the Court cannot find upon the hearsay evidence adduced, that there was roasonable and probable cause for supposing that there were ^lorsons so engaged, or that any arms were purchased or destined for Cuba. The second matter for enquiry is, whether there were introduced into tb " ■ 'I'j of Montreal, arms and munitions of war in a mann-^ . i astify a reasonable belief that they were to be expoiioa by the Atalaya for the use of Cuban insurgents. This question is not difficult of solution. Powder was imported into Montreal from the United States and from Great Britain. Munitions of war, it has been proved by the Deputy Collector from Montreal, cannot be imported from the United States without the permission of the Min- ister of Militia, who has delegated his authority to the Collector or his deputy. The Deputy Collector, a witnt'ss for the Crown, has accounted for all the powder imported from the United States for the eiglit months ending 31st of May, 1880, into Montreal. A list of all the persons who imported this powder, principally hardware merchants, has been produced ; they are all well known respectable people who made the importations, principally as the Deputy Col- lector has said for sporting purposes. The powder by the DunfiUan was imported from London. It was landed under the authority of the Customs at Montreal, and the entire quantity, 1,122 packages, was sent to respectable persona in Toronto, all which has been proved by Mr. O'Hara, the 232 CASES IN THE VICE-ADMIRALTY COURT Atalaya. Deputy Collector of Montreal. The mode of introducing this powder certainly did not justify a belief that it was to I exported by the Atalaya, and if the Consul-General of Spain had any doubts on the subject, a short enquiry at the Custom House in Montreal would have removed them. There remains now the third and last subject for investi- gation. Is there legal evidence to justify a reasonable belief that the Atalaya was equipped with munitions of war for Cuban insurgents ? In the prosecution of this en- quiry it will be well to notice first, the period of time within which the Consul-General of Spain acquired the information which led to his causing the detention and search of the Atalaya. It was between the 30th of May and the 4th of June last. In his evidence, he is positive in stating that on the 3Uth of May he had no grounds for suspicion of the Atalaya ; the detective, Beaulieu, certainly had none, as he was known to the Consul only on the day when he was engaged to take off Dufresne alias Dufaure, to the boundary line of the United States, so that the behef of the Consul-General, stated in his affidavit, that the Ata- laya had arms and munitions of war on board, was based on the information acquired by him between the 30th of May and the 4th of June. Dufresne alias Dufaure, said nothing about the Atalaya. We may now commence with what has been stated by Beaulieu. He left Quebec for Montreal on the evening of the 30th with Dufresne alias Dufaure, in charge. How soon the intoxication of the latter commenced does not appear, nor has Beaulieu said whether the conversation, now to be noticed, which he had with him was while he was sober or when " under the in- lluence of liquor." the state in which Skeffington, the detective, found him in Montreal. This man, belonging to a class who have acquii-ed the name of Cuban FilUbus- ters, notoriously the scum of society and the embodiment of villany and vice, said to Beaulieu that he had come to Canada to buy arms and munitions of war, which he was to send in a hateav, to be hired by him for that purpose. TRT FOB LOWER CANADA. 233 f introducing that it was to ul-Geueral of inquiry at the fed them. ct for investi- a reasonable munitions of 5n of this en- mod of time acquired the letention and 30th of May le is positive grounds for ieu, certainly y on the day '■8 Dufaure, to lat the belief ;bat the Ata- d, was based the 30th of )ufaure, said nmence with t Quebec for ufresne alias ation of the Jeaulieu said ?hich he had nder the in- tfington, the belonging to >an Fillibus- embodiment had come to I'hich he was hat purpose. This information Beaulieu imparted to Skeffington on his return to Montreal. In return he received from Skeffing- ton the information that some unknown person on the street in Montreal, told him that there wf.re Cubans in town, and that the Atalaya had arms and munitions of war on board. Skeffington communicated with the Consul-Gen- who sent him a despatch to come to Quebec on the ^.id of June. He did so, and on his return to Montreal, on the 3rd of June, he telegraphed to the Consul-General of Spain that he was told by some one else that the anns and munitions of war had been transferred to another ship. Ancjther statement of Skeffington was, that a tavern-keeper of the name of Bowie told him that he had heard laborers, who loaded the Atalaya, say outside of his tavern thai j»re- serving tins had gone on board. These tins Skettingtou's imagination led him to believe were receptacles for cart- ridges. It is thus apparent that the entire information as to the Atalaya was from Skeffington ; this was imparted to Beaulieu who knew nothing respecting her, and v/hat the two together heard was imparted to the Consul-General of Spain, and served fii-st for the affidavit of Beaulieu, and secondly for that of the Consul-General. The evidence, as was admittod on the part of the Crown at the argument of the case, is entirely hearsay. A per- usal of it shews that there is no one fact within the personal knowledge of any one witness that can implicate the Atalaya. Hearsay evidence is uniformly held incom- petent to establish any specific fact which in its nature is susceptible of being proved by witnesses who can speak from their own knowledge. That this species of testimony supposes something better which might be adduced in the particular cAse, i i not the ground of its exclusion. Its in- trinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised under its cover, combine to support the rule that hearsay evidence is totally inadmissible, (a) (a) Greenleaf on Ev., § 99, p. 116. Atalaya. 234 Atalaya, CASES IN THE VICE-ADMIBALTY COURT Reasonable and probable cause involves a consideration of what the facts of a case are, and what are the reasonable deductions from these facts. In the present case, where there is no intervention of a jury, as well the facts as the law are to be determined by this Court. Unfortunately for the case of the Crown, no facts have been adduced in evidence from which deductions suggestive of criminalty on the part of the Atalaya can be drawn. A learned judge has said as to probable cause, " There must be such " a state of facts as would lead a man of ordinary caution " and prudence to believe and entertain an honest and " strong suspicion that the person is guilty." (a). In the course of the proceedings in this case it has been made to appear that there were no facts within the personal knowledge either of Beaulieu or the Consul-General of Spain, from which either could infer guilt in the Atalaya, and it is equally apparent that the hearsay evidence on which tliey acted, which I hold to be inadmissible in this case, has been a pure fabrication. Such I believe to be the legal view of this case, and the judgment to be rendered will accord with it, but the plead- ing or answer of the Crown to the petition of the apphcaut enumerates the eight charges which I have stated. These are upon facts said to have been ascertained after the arrest of, and during the detention of the Atalaya. I am of opinion that this testimony would have been inadmissible because the test of probable cause is to be applied as at the time when the action complained of was taken; and if upon the facts then known the party had no probable cause for action, it would be no protection to him that facts came to his knowledge afterwards (6), but I do not feel at liberty to exclude it, as the applicant has joined issue upon them- la noticing this testimony it may be stated that on the evening of the 3rd of June, the Atalaya was board 3d by Mr. Panet Larue, an assistant tide surveyor in the Customs (a) Shawr, Ch. J., Bacju Towne,4Cu8li. 217, 238. (*) Cooley on Ev., 183. FOR LOWER CANADA. • 235 isideration reasonable ase, where lets as the ortunately .dduced in criminalty A learned 3t be such ry caution lonest and i has been e personal reneral of 3 Atalaya, idence on >le in this B, and the ihe plead- applicaut I. These the arrest I am of idmissible . as at the L ; and if ible cause acts came it liberty 3on them* it on the ivdid by ! Customs 183. at Quebec. He arrested her. The Consul-General of Spain went on board with him and interrogated the master, who until then appears to have had no idea of any charge against him. Upon the explanation of the Consul-General, he said to him that he was quite at liberty to search the vessel, and the Consul-General, finding that more trouble would attend the matter than he first expected, fixed with Mr. Tanet Larue next morning for the search. On the ensuing day, 4th of June, the Consul-General made some calculations as to cost of taking out the cargo and search. Mr. Gillespie, of the firm of Gillespie, Moffatt and Co., one of the consignees, on the 4tn of June, called upon the Consul-General and informed him that if he searched the vessel, something in the nature of a bond of indemnity should be given for the damages caused by detention, but the negotiation in this particular was broken off upon Mr. Gillespie's taking professional .advice, and then upon the same day, in the afternoon, the Consul-General made his affidavit, and the warrant was issued on the next day, the 5th of June. The search commenced by the Collector taking out the cargo, and was continued with the most minute care. The Consul-General contributed a remark- able amount of vigilance in watching the vessel. He caused a copy of the proclamation bringing the Foreign Enhstment Act into force to be inserted at full length in a morning newspaper. At the foot of it, over his signature, he offered a reward of fifty dollars to any one who could procure a conviction of an offender against the provisions of the Act, to be paid upon sentence being pronounced against the " culprit." Several of these were distributed among the sailors of the Atalaya. At the same time, a young man was engaged by him to count the planks taken out of the vessel, and a lighter with men employed by him was in attendance watching for the discovery of arms and munitions of war, in case an attempt should be made to take any away. In the progress of this severe and rigorous search, the Atalaya. 236 CASES IN THE VICE-ADMIRALTY COURT Atalaya. vacant space for the pork barrels and other provisir.ns of the ship, the vacancy into which it was sup])ose(l arms and munitions were to go, was visible enough, and was undiT a hatchway : a small recess in the side of tlie cabin, four inches deep 18 J inches wide, and two feet nine inches high, was discovered, but there were no arms or munitions of war in it. A statement made by the young man who counted the planks was put in, which shewed a greater number than shewn by the tallies of the person who checked the loading of the planks with the mate ; and as respects the provisions being more than was required, the cook, on his cross-examination by the Crown, said that he fed his men well, that he had more provisions than sufficient to reach Cuba, except potatoes, and that he had tinned pro- visions taken on board at the Island wharf where the sugar was discharged. These tins are evidently the tins which engaged the attention of Skeffington. The attempt to give the Atalaya the appearance of a slave or Cooley trader has been anything but successful, and the statement that she was a Spanish vessel, owned by Spaniards trading under a false register and false colors, would have been found to be untrue had the United States Consul at Quebec been en- quired of in the matter. There rests only the allegations respecting the Atalaya's flags to be noticed. TJie flags she had on board have been opened and displayed in Court : they were the United States ensign, the United States jack, the ship's Burgee, a flag with the letter T on it, aud the house flag of Thos. Terry and Co., of Cienfuegos. There was a remnant of an old ensign which was useless and was used for a seat in the ship's boat. All the men on board the vessel have sworn that these are all tlio flags on board the vessel, and none others were found on board. The Con-^ul-General interrogated as to a Cuban Insurgent's flag, has said that there is a sort of thing they use when they meet, which he saw with a procession of Cubans in Phila- delphia ; it is a triangle of blue with two corners ^^■hite with a star caUed the SoKtary Star, and he thinks there rUT FOR LOWER CANADA. 237 provisifins of i&l arms and was uiuliT a cabin, four 1 inches high, munitions of ig man who lid a greater who checked [ as respects the cook, on ,t he fed his sufficient to tinned pro- ere the sugar e tins which empt to give sy trader has lent that she iing under a . found to be lec been en- e allegations Hie flags she jd in Court : 1 States jack, it, and the 3gos. There less and was en on lioard igs on board )oard. The urgent's flag, e when they ns in riiila- jrners \\hite thinks there was another added, Jean Baptiste Beaulieu has sworn Atalaya. that he saw another flag on board after the arrest of the vessel, and has attempted a description of it as pointed at the end with white points at tie mast end, blue, with sev- eral stars. The questionable weight of this testimony may be inferred from the fact that all the officers and crew of the vessel ignore the existence of such a flag, and had there been one, the many hands and eyes on board of this vessel after her detention, would soon have secured it. Perhaps there is no enactment of the Imperial Parliament, which requires as much care and caution in its execution as the Foreign Enlistment Act, 1870. It must necessarily touch many and very important interests, it may interrupt our relations with friendly States, it may affect trade with them, it may occasion damage and loss in a pecuniary point of view, it may be injurious to the character and credit of the ship owner, the ship master and the owners and con- signees of cargoes, it may affect the Imperial Treasury. The Act does not prescribe the mode of proceeding after the detention of a vessel by a " local authority." In this instance the Court is not called upon to express an opinion as to the way in which effect has been given to the Act, but merely to decide whether, carried into effect as it has been, there was reasonable and probable cause for the detention and search of the Atalaya. The polluted source from whi'i'h the information through Beaulieu was obtained, and the gossip of Skeffington on the street and in the tavern, certainly have not furnished the reasonable and j)robable cause required. The danger of trusting to such information is great. Under it, a vessel and cargo have been improperly delayed, and the master, owners and con- signees have been exposed to unjust and injurious suspi- cion upon charges recklessly made and not substantiated. The Atalaya is now under detention since the 3rd of June last, and must necessarily be held under some risk. The person in charge of her is Mr. Dunscomb, Collector of the Customs at this port, — a more efficient or a more judicious 236 Atalaya CASES IN THE VICE-ADMIRALTY COURT and discreet public officer by general acknowledgment ia to bo found nowhere,— still want of nautical experience might have prevented him from making the necessary arrangements for her safety. While in his charge there has been a possibility of other vessels colliding with Iior, and other accidents might have caused a totaUoss of tlie vessel and cargo, in wliich case the Imperial Treasury would have been called on to make good the loss. As the search on board the Atalaya proved fruitless, no proceedings have been talccn for a condemnation. The nole issue raised by the Crown, apart from a denegation of all the statements in the applicant's petition, has been that there was reasonable and probable cause for the deteiiuon, and in this view of the matter there was nothing to prevent the release of the Atalaya by the Crown at the termination of the search five weeks since. It is but due to the owner, the consignees, master and crew of the Atalaya, to say tliat there rests not a shade of suspicion on any one of them. The witnesses have been ex- amined apart viva voce. The testimony of the mast.T and crew is concordant and void of contradictions. They all have the appearance of quite inoffensive persons. The master has been in the employ of the New York firms for the last fifteen years, he enjoys a good character, and his personal appearance certainly conveys no indication of free- booting or revolutionary fajndencies. The sum and sub- stance of their testimony, one and aU, is that neither on the present or previous voyages made by them in the Atalaya to Cienfuegos had they any knowledge of arms or munitions of war being on board of her. The decree of this Court is, that James H. Bogart, the appUcant, having established that the brigantine Atalaya belongs to him, and that she has not been equipped with arms, munitions or stores, contrary to the provisions of the Foreign Enlistment Act, 1870, with which he has been charged, she be released and restored to him ; and inasmuch as there was not reasonable and probable cause for her JBT vleilgment is I experience \e necessary charge there ]g with liLT, 1 loss of tl^e al Treasury )SS. fruitlcMs, no X The nole ;ation of all 3 been that 3 detention, g to prevent termiaation master and a shade of ve been ex- master and They all ions. The k. firms for jr, and his on of freo- 1 and sub- neither on jm in the of arras or FOR LOWER CANADA. detention, this Court doth further decree and declare that the said James H. Bogart, as owner of the said brigantine, be indemnified by the payment of costs and damages in respect of her detention, the amount thereof to be assessed by the Registrar and Merchants, and paid, as by the said Act is in such case provided, out of any moneys legally applicable for that purpose. From this decree, an appeal was asserted and allowed to Her Majesty in Her Privy Council, which on instruc- tions from the Earl of Derby, Secretary of State for the Colonies, was subsequently withdrawn. William Cook, Q. C, for the Applicant. Hon. A. R. Angers, Q. C, for the Attorney-General. It. Alleyn, Q. C, for the Consul-General of Spain. R. Bradley, for the Consul of the United States. 239 Atalaya. togart, the e Atalaya aped with jns of the has been inasmuch e for her 240 CASES IN THE VIOE-ADMIRALTY COUllT Friday, 5th November, 1880. GENERAL BIRCH.— Pedersen. PROGRESS.— Chabot. In the case of a steam vessel lying at anchor in fog upon an anchorage ground, while using her boll and shewing two white lights, one upon her foremast and the other at the gaff aft, each in an oblong lan- tern ; Held: 1. That a sailing Tessel, which, misled by the whistle "f another steamer in motion, struck her, was in fault for going t fast ; and 2. That the light*, though not in globular lanterns, us directed by the Act respecting the navigation of Canadian wrtturs, being equal in power, were a substantial compliance with its provisions. General Cross causes of collision between a st 'am tug and a BiBCH. barque, under the circumstances stated in the following Pbogkess. . J . ° judgment : Judgment.— jffon. G. Okill Stuart. On the 25th of May last, between one and two o'clock in the morning, the steam tug Progress, of 267 tons, was lying at anchor off the River Quelle point, in the Lower St. Lawrence, in a fog. She had her head to the N. E., and was hold by her starboard anchor on thirty fathoms of chain. From the E. there was a moderate breeze, the tide was half flood, and the current about 3^ knots an hour; on her foremast, at about twenty feet above her hull, she had an anchor light in a lantern, oblong in form, with glass sides, and a similar one at the gaff aft. At the same time, the General Birch, a Norwegian bar- que of 789 tons, carrying a foresail and a lower foretop- sail, on a course S. W. by W., and making from six to S3ven knots over the ground, saw the tug's lights ahead and ported her helm. At the same time the tug reversed JRT FOR LOWKR CANADA. 241 n an anotaorage ifjrhtH, one upoa na oblong' laa> itle of another too fast ; and as directed by being equal in 1 tug and a le following t two o'clock 57 tons, was a the Lower the N. E., ' fathoms of 9ze, the tide is an hour ; er hull, she form, with wegian bar- >ver foretop- frora six to ights ahead ug reversed her engines, which sen* her astern to the length of her chain cable. The port bow of the baniuo camo into con- tact with the tug about seven feet from her stum, between it and the cat head, broke her chain cable, and other daniage was the conso(iuenoe. The barque suffered damage also, and each party now sues for indemnity, the one imputing negligence to the other. The complaint against the barque is that she went too fast in the night time in a fog, over an anchorage ground in the channel, and that she had a bad look-out. On the other hand, the steam tug is acei'sod of having used her sU-am whistle, tlio signal oi ■ .odsel in motion, of not having rung a bell, the signal c a ^'easel .:. anchor in a fog, and, moreover, of not havii(? oiewn i: proper anchor light. If a vessel runs down another at anchu., prima fade she is to blame, but she may, by credible evidence, estab- lish a defence tS relieve her from all responsibihty (421 Pritehard'a Digest, p. 174). If, therefore, it has been established for the barque that the steam tug did use her steam whistle while at anchor, or that she did not ring a bell, or that she did not show a proper anchor light, and that either of such infringements of the sailing rules occa- sioned the collision, she was to blame; if it has not, the fault was with the barque. The charge against the steam tug of having used her steam whistle while at anchor, may at once be dismissed from consideration, as there is proof positive that she did not, and none that she did. The controversy has thus become reduced. 1, To the ringing of a bell and its suffi- ciency in sound ; and 2. To the not having sliewn a proper anchor light. That the steam tug had a proper bfdl has been proved, but it is said that its sound was impeuod by two ventilators and otherwise, so as to render it inaudible. On this part of the case it may be observed that a practical experiment on an excursion round the harbor of Quedec has been tried Oeniral BiacH, Pruurehm. 242 CASES IN THE VICE-ADMIKALTV COURT Genekal BiBClI. PnOQRKHH, to test its ringing power, which was very satisfactory to the persons who heard it and have testified to its merits ; while on the other hand some speculative oi)inions upon intonation have been expressed in connection with the ventilators and other interfering obstacles calculated to detract from its sound. This Court is fortunately relieved from deciding upon the merits of the bell upon this evi- dence, because there is proof, irrespective of it, quite con- clusive. The steamship Buenos Ayrean, of the Allan line, was in advance of the General Birch. She was running at full speed when the fog closed in upon her. Her master, Neil Maclean, was in consequence called on deck at a quarter past midnight. By his orders her head was put to the north, her engines were slowed, at times stopped, and her lead, with a view to safe anchorage in the channel, was kept going. While uuiier steerage way only, there was heard from E. S. E. by the people on board, distant about a mile and a quarter, a clear ringing bell, rang about every two minutes. Meanwhile the steamship kept her steam whistle going, to indicate she was in motion, until she came under the stern of a vessel at anchor, distant about 400 feet, which was the Progress, and whose bell it was that the people of the steamship had heard ringing for twenty minutes or half an hour before. These are facts sworn to by several per- sons on board the steamship, and not being contradicted, their truth cannot be questioned. It may be added that there is similar testimony from on board the Progress, and especially that of her pilot, who heard the steam whistle of the steamship as well as the fog horn of the General Birch, and who ordered the bell to be rung louder and faster as the latter approached. It is perfectly true that every witness from on board the banjue has sworn that he did not hear the bell before the accident, and some of them think that if it had been rung they would have heard it. As 10 the anchor lights of the Progress : — The seventh IIT atisfactory fo o its morita ; [tinions upon ion with the jalciilntcd to itely relieved [)0!i this evi- t, quite coD- an hne, was lining at full master, Neil at a quarter to the north, ind luT lead, el, was kept e was heard about a mile it every two team whistle came under I) feet, which the people of iiutes or half several per- contradicted, 3 added that Progress, and m whistle of eneral Birch, faster as the on board the 11 before the id been rung The seventh FOR LOWER CANADA. ATtkle of the third section of the " Act respecting the Navigtv- tion of Canadian Waters/' by which this case is governed, has enacted that " ships when at anclior in roadst«ids or fairways shall exhibit where it can best be seen, but at a height not exceeding 20 feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform and unbroken light, visible all round the horizon, and at a distance of at least one mile ; " and in a subsequent article, that " if in a case of colhsion it appears Ui the court that the collision tviia occasioned by the non-observance of any of the rules pre- scribed by the Act, the vessel by which such rules have been infringed, shall be deemed to be in fault." The white anchor liglits of the Progress were not in globular but in oblong lanterns with glass sides. Tlie ques- tion which this part of the case presents is: Does the Act require a Hteral coini)liance with the provision as to a globular lantern ? In the case of the Telegraiih, determined by the High Court of Admiralty, it was hold, and the prin- ciple was subsequently sanctioned in the Privy Council, that a substantial compliance with a similar provision in an Act of thi". Imperial Parliament was suHicient. (Spinks, A. and E. Rep. 429.) There is quite a divergence of opinion as to the strength of the anchor lights of tiie tug before the collision, and as to the distance at which they could be seen in the fog. The master of the liuenos Ayrean has said at 400 feet, and when the fog lifted at intervals GOO feet, and the mate of the barque has said at one cable (720 feet), not more. The former has fixed the distance at which a good ship's light could then be seen, at 400 and 600 feet, and the latter has said that a good ship's light could have been seen in the fog at three cables. What- ever difference of opinion may have existed as to the power of the lights of the tug in a fog, it is established beyond dispute that they couid be seen, when there was no fog, at the lowest computation from five to six, and at the highest from six to seven miles. The j)rovision of the 248 Gkrbrai. BiBCU. PBGORESa. 244 CASES IN THE VICE-ADMIRALTY COURT General Birch. Progbesb. law which has been cited requires but one mile at least, and at that distance to show a clear, unifoiin and unbroken light round the horizon ; these lights were good outside of a fog, there is no reason for saying that they were not as good within it, with a diminution of brightness in proportion to the density of the atmosphere. Taking it for granted that the bell was rung at proper intervals, that the lights were good, and that the coUision was not occasioned by remissness in the matter of either, it is by no means difficult to ascertain what the real cause of it was. The General Birch was going over the ground at seven knots. Her master has admitted that he was misled by the steam whistle of the Buenos Ayrean, which he erroneously supposed was that of the Progress, and that if he had heard the bell or seen the steam tug at two cables he could have avoided her. He kept his course and blew his fog horn, which would have been proper had he not made a mistake. He supposed that he was meeting a steam vessel under way when his delusion was suddenly dispelled by the appearance of the anchor lights of the tug, a vessel at anchor, at a moment too late for him to escape her. Then why was he too late ? This question, too, admits of easy solution. Two men were on the forecastle on the look-out, one of whom has not been examined, a fact to be regretted, as he might have given some useful testi- mony. They did not see the light as soon as they could and should, or if they did, they failed to report it in proper time. This is evident from the testimony of the man at the helm of the General Birch. The length of a vessel of 789 tons necessarily would tell a good deal, where col- lision is impending, and had she that much more before her, and ]• master had that much to spare, he would have cleared the tug by the seven feet from the place where she struck the barque near the stem. That the look-out was deficient in duty, is to be learned from the evi- dence of the helmsman. " About three minutes before the " ships struck," he has said, " while at the wheel, I saw two RT FOB LOWER CANADA. 245 mile at least, and unbroken jod outside of J were not as 1 in proportion ung at proper ,t the collision tter of either, the real cause er the ground . that he was \yrean, which ^ess, and that n tug at two his course and )roper had he 8vas meeting a was suddenly hts of the tug, him to escape question, too, the forecastle :amined, a fact e useful testi- ;hey could and t it in proper of the man ;th of a vessel lal, where col- 1 more before ire, he would om the place n. That the I from the evi- ites before the leel, I saw two " bright lights about two points on our port bow, about half " a cable's length off. I did not hear these lights reported " before that. The two lights shewed about twenty feet " apart. * * The pilot was standing about seven feet " from me when I saw these lights, and immediately after " I saw them he ordered me to put my helm hard, a-port. " It had been midships just before that. * * It " was I who told the pilot I saw the lights of the " Progress, when I did, the pilot read nJ sicken to " me about the lights before that." From this statement it is plain that the anchor lights of the Progress couW have been seen by the look-out the length of the barque sooner than they were reported. If there was neglect to that extent there may have been more, and should the opinion of the mate of the barque be adopted, when he said that at the time of collision a good anchor light could be seen at three cables, there was ample time and opportunity to avoid the steam tug. The Progress was in the great fau-way of the spring fleet, bound up the St. Lawrence. She was at anchor in the night time, when darkness and fog made it dangerous for a vessel to proceed even at a very moderate rate ; she rang her bell and showed a good anchor light. The Gen- eral Birch did not hear her bell nor see her light, but pro- ceeded at such a rate of sailing, that she did not hear the former nor see the lattc, until too late for safety. Had she gone at one half the speed, she very probably would have heard the beU and seen the light in time to clear the steam tug. However this may have been, the prudent and proper course was for her to come to anchor as she was ultimately compelled to do, after the collision. In the case of the Attila, not long since determined by this Court, it was held, that where a vessel is in a fog she must be under sufficient command to avoid all reason- able chance of collision, (a) The facts stated show that the General Birch was not. The collision is to be attri- (a) Infra, p. 196. General Birch. Proorrbs. 246 Genkbal BiROH. Proobess. CASES IN THE VICE-ADMIRALTY COURT buted to too much haste through an anchorage ground in fog, and to a bad look-out. The Court being further of opinion that it was not caused as alleged, by an infringe- ment of any one of the sailing rules in the matters of whistle, bell or light by the persons in charge of the steam tug, the General Birch is declared solely in fault. The decree is for the amount of damage sustained by the Progress, to be assessed in the usual course, and costs in the case against the barque. The suit of the latter is dismissed with costs. F. A. Andrews, Q.C., for the Progress. Charles A. Fentland, for the barque. IT FOB LOWER CANADA. 247 3 ground in g further of an infringe- 1 matters of jf the steam fault. The led by the ind costs in ;he latter is Friday, 19th Nover.iber, 1880. PRINCESS ROYAL.— Watts. RUBENS.— Krudsen. When two vesseiR sailing, one on the starboard and the other on the port tack, came into collision, the latter held to be iu fault for not keep* ing out of the way. Judgment, — Hon. Q. 0. Stuart. These suits, cross actions, originate from a collision in the Atlantic Ocean, on the morning of the 11th of May last. The Princess Royal, a barque of 1,200 tons, and the Rubens, a Norwegian barquo of 375 tons, were then attempting an entrance through the ice into the Gulf of St. Lawrence with the spring fleet bound inwards, when they came into col- lision. At two o'clock in the morning the wind was a fresh breeze from the S. E. The Rubens was on the starboard, and the Princess Royal on the port tack. The head of the Rubens was N, E. by E., her mainsail was aback, slacken- ing her speed through the ice, her lower foretopaail, fore- staysail and mizzen staysail were set, and she was making about a knot an hour, or upwards, and was close-hauled. While in this position, her look-out on the forecastle with the second mate, who was the officer of the starboard watch, saw a green light, distant from two to three miles, which proved to be that of the Princess Royal, bearing about two points on her port bow. The helm of the Rubens was to port and she was kept as close to the uuind as she could be. At about half-past two o'clock, the same light was seen about two points on her starboard bow. Shortly after, the the Princess Royal showed her red and green lights, and according to the statements of the persons on board the PuiNCKsa Royal. RUBENB. 248 Pbincebb ROTAL. RUBENB. CASES IN THE VICE-ADMIRALTY COURT itiibens, she seemed to be bearing down upon her. The Rubens then attempted to fill her lower maintopsail, tuid while steady to the wind, as her people have said, t!; .Prir- cess Eoyal ran across 'ler bows, so that the starboaid bnv, bowsprit and iib-boom of the Eubens struck the lattev about midships on her port side. Opposed to this view of the collision, the ca?e state.! foT the Princess Royal is, tiiat while on ihe port tack, steering S. W. by S., under two lower tops n'3 and a foretopmast staysail, she saw the red and green ligiits of the Rnbena a mile and a half or two miles < ff, and immodif! tely the iiclm of the Princess iioyal was put to port, and hf ni a-post, whicN K<>pt her away, but the Rubens having ajijiarently starbi-iiided Ler helm and kept away, she ran into the Prin- cess Ko)ftJ, By tlu" • iKih article of the sailing rules, "Tvhen two sailing nLps are crossing so as to involve risk of collision, then if they have the wind on different sides, the ship with the wind on the port side shall keep out of the wi^ of the ship with the wind on the starboard side ; except in tho case in which the ship with the wind on the port side k close hn iiled, and the other ship free, in which case the latter ship shall keep out of the way." It therefore became the duty of the Princess Royal to keep out of the way of the Rubens. The night was sufficiently clear to see a ship's light at almost full distance. That there was a good look-out from the Rubens does not admit of question ; first the green light of the Princess Royal was seen to bear on the port bow, and again on the starboard bow ; on the port, for about a quarter of an hour or more, and on the starboard, for about the same time ; and then it was thnt the Princess Royal disclosed her two lights, and a collision was evident to the people of the Rubens. Neither in the pleadings nor at the argument, was it pretended that the Princess Royal saw either light of the Rubens before she saw her two lights. The Rubens' red light should have been seen from tin Princess Royal as soon as the green light of the latter was seen " . . the ST n her. The atopaai], 'dad lid, the Pilr. irboard how, ) lattef about "je state.! for ack, steering foretopniast he Enbena a jly tha }ielm h(t.} tt,-port, ; apjiarently ito the Prin- "tvhen two of collision, ie ship with I wa} of the t in tho case 3ide is close le latter ship oae the duty the Rubens, p's light at ok-out from i green light )Tt bow, and ut a quarter )ut the same 'al disclosed be people of le argument, ther light of 'he Rubens' iss Poval as n ficu; the FOB LOWER CANADA. former. If it had been, fifteen to thirty minutes would have served the Princess Royal to keep out of the way. Had 'he look-out of the Princess Royal been produced as a wit- n*j?3, it would have been for him to explain why he did not 3,)oner report a light on the Rubens, but he was not. The master of the Princess Royal has in his evidence .^aid that the man has deserted, but he has not caused a seiach war- rant to issue for his apprehension, and being asked why not, his answer was, " I went to the police and gave tliem an order, and gave them his eyes and his descriptioHj that is all I suppose," and from which it may be inftirrcd that there was no particular anxiety for his appearance. That there was a bad look-out on the Princess Royal is sufficiently borne out in evidence. But it is said, on the other side, that before the collision the Rubens filled her lower laaintop- sail and starboarded her helm. She did so, and if these orders had effect, she contributed to the collision ; the fault was mutual, and the owners of these vessels should share the damages equally. The evidence in these particulars has been maturely considered. The persons on board the Prin- cess Royal examined as witnesses, attribute the collision to these orders, and some masters of vessels have been exam- ined as to the effect of filling the lower maintopsail. On the other hand, the second mate of the Rubens has candidly admitted that he gave an order to bmce the lower maintopsail yard, and to fill that sail and to starboartl her helm. But with others on board the Rubens he has posi- tively sworn that the sail had no time to fill, that the order to starboard was instantly and so soon as given, counter- manded by an order to port, that the former had no effect, and the red light of the Princess Royal showed itself im- mediately before the vessels struck. In weighing this testimony, it is to be observed that the persons who were on the Princess Royal could not see what was done on board of the Rubens, and can have given but their opinions. While on the other hand, the persons who were on the Rubens could see what was done and the effect, if any, produced. 249 Princess Royal. Rubens. 250 CASES IN THE VICE-ADMIRALTY COURT PRINrESS ROTAL. RUBENB. Here I may refer with advantage to the case of the ship Liberty (a), which was decided by this Court. She was on the port, and the barque Anne on the starboard tack, off Pointe des Monts, in the Eiver St. Lawrence. It was con- tended for the ship that she had ported her helm and went four or five points off the wind, but that the Anne, instead of keeping her course, starboarded her helm, wliich caused a collision. The language of Mr. Black, as Judge of this Court in that case, may be appropriately used in this : " The positive testimony of the master, mate, seamen and hands of the Anne as to what passed under their own eyes, and was done by them, cannot be overset by the impres- sions or belief in what form soever stated, — formed in a moment of excitement — by persons who were in another vessel, and could have no positive knowledge of what passed on board the Anne, and whose opinions would naturally be in favor of their own ship. While, tlien, I give credence to their statements as to matters within their knowledge, I cannot allow their opinions to over ride the positive facts on the other side." The case of the Liberty is singularly similar to the present, in this, that the lights of the vessel on the opposite tack were not seen as soon as they should have been. The nautical assessors have given their answers to the several questions as follows : — 1, Were the Princess Eoyal and the Eubens crossin',' while the first was on the port and the latter on the star- board tack ? Answer. — The Princess Eoyal was crossing the bows of the Eubens before the collision, while the former was on the port tack. 2. Did the Princess Eoyal place her helm hard a-port in sufficient time after the light or lights of the Eubens could have been seen from her ? Answer. — We think she did not. 3. coUii A tions 4. the ] A 5. imm med A thee P and dism be a Ci (a) S. L. C, A. C, p. 105. FOR LOWER CANADA. 2S1 of the ship Slie was on rd tack, off It was con- n and went me, instead lich caused dge of this d in this : earaen and • own eyes, he impres- jrmed in a in another 'fi of what ons would ile, then, I ers within 13 to over case of the I this, that ■e not seen i^ers to the IS crossiit'^f 1 the stap- le bows of was on the 3. Do you think the Princess Royal was to blame for the collision ? Answer. — We do, from not having taken proper precau- tions in due time. 4. Did the Rubens keep her course close hauled until the moment of coHision ? Answer. — In our appreciation of the evidence she did. 5. Did the starboarding of the helm of the Rubens immediately before the collision, notwithstanding the im- mediate counter, order given, contribute to the collision ? Answer. — "We think not, as the order to starboard and the counter order were given, as it were, in the same breath. E. D. Ashe, Commander R. K. F. GouRDEAU, Harbor Master. Per Curiam. — I agree with the opinion of the assessors, and accordingly maintain the action of the Rubens and dismiss that of the Princess Royal with coats. Damages to be ascertained as usual. Charles A. Pentland, for the Rubens. William Cook, Q.C., and Archibald Hay Cook, contra. Pbincebh Royal. RUBENH. i a-port in bens could 252 CASES IN THB VICE-ADMIRALTY COURT Bbidqe- WATEB. Friday, 19th Sonember, 1880. BEIDGEWATER.— DowELL. Assault and battery and oppresaivfi treatment by the master and owner of a ship upon a seaman. P < . )'— suBtained. Judgment.— ifon. 0. Ohill Stuart. This is a suit to recover damages to the amount of $500 f n alleged assault and illtreatment, brought by Benjamin Eoberts, a sailor, agaiint John Henry Allen, owner, and John Dowell, master of the Bridgewater, an American ves- sel of 1600 tons, with a crew of about twenty men. The promoter signed articles on the 5th September last in Lon- don and, in the pro-secution of a voyage to the port of Quebec, he has complained that the master attempted to put him in irons but failed, owing to passive resistance ; that thereupon the owner said, " I'll help the master to put you -Ti irons," and having disappeared, he reappeared with a sword-bayonet in his hands a id struck promoter several blows on the head with it to stun him, the more easily to put him in irons. That one flesh r.und was inflicted, and then the master struck the promoter. The defence is that the promo* t engagi'd as an able seaman, he be '"7 but %v. ordinal seaman, and that the attempt to put . a in irons, was lor refusal of duty ; that he resisted and was mutinously supported by others of the crew ; that the rap. le' was violently assaulted rvA knocked down by the promo^^er, and that tix. master acted in self- defence ; that the crew were in open mutiny and aiiued with knives and other weapons witii >vhich the master was threatened, and that in con.i< ^snce e defendants armed themselves for the protection / tl aselves and thi wife anu children of the owner, o \\ vi on board ; furf her, that the language and behavior of the promoter du g FOB LOWER CANADA. the voyage were mutinoun, subversive of good order and discipline, and, as a ringleader, others of the seamen were by him incited to refusal of duty. The crew of the Bridgewater, it appears, was composed of negroes and mulattoes, and there were two Norwegian carpenters and two young men passengers on board. The promoter's statement ou oath is, that he had obeyed several orders of the master, and was about to perform the last, when he used strong language, upbraiding him for being slow while he was putting ou his oil-skin tiuwsers ; that thi master then told him he was gomgto put him in irons; that on his rc^fusal to submit, the master sent for the car- penters to help him, and they as well as others of the crew refused. The master then alone attem- d to put the irons on the promoter, and while the latter was resisting him, tho owner, John Henry Allen, came out of the cabin with a cutlass in his hand and struck him over the head with it, and wounded him in the side. The entire crew, excepting those who have deserted the ship, give the same acco Hit of the matter with much exaggeration. The cut- lass h' • been produced, and for cutting or thrusting is a very e^.-tive inhtrument. Roberts, the promoter, has not sworn to u. v wound in the head, nor is any charged in the libel. F '.as sworn to a wound in the side, but the clothes ; had on ^re not cut, and the wound must have been, if made by iharp point of the cutlass, a puncture through the skin. Tht wo carpenters and the young men, the passengers, have sworn, although on the spot, that hey did not see the promoter struck. With reference to the defence, it is to be observed that after the ship had been for some tim^ nn the voyage, she had to encounter a very violent gale of \\ ind, and the bal- last shifted. This necessarily endangered the safety of the ship. The crew, including the promoter, refused to do their duty, because they said it was extra to the ordinary work, and it wao only after a great deal ol trouble and delay that they wuuld do it. This act oi insubordination the crew have admitted, under the supposition that t! ey 263 Bridue- WATKK "*- 254 CASES IN THE VICK-ADMIIULTY COURT Bbidor- Watkb. Lad a right to refuse this duty. There was no mate on board the ship. The second mute, Ward, rffused to obey the master's orders, according to the log on the 13th Sep- tember ; on the 2;{rd, wlicn in charge of the decks, he waa found by the master lying over the poop rail, apparently asleiip, and upon ciug asked by the n./ister wliy he did not strike the bells as iifliial, with an angry growl answered, " How cm I run bells and ships too ? " and U3(;d abusive and threatening language. This man, according to ontriea iu the log, threatened the master and owner, saying tliat he hau fire arms and would use them, and with such lan- guage in presence of a number of the crew, he must have disturbed the discipline of the ship. During the voyage, until the occuiTeuce which has led to this suit, there does not appear to have been any act of harslmess or severity either by the master or owner towards any one of the crew; on the contrary, the owner gave to the promoter some articles of clothing as he was not sutticiently clad. While in the act of trimming the yards on the 18th of October, the men were so careless ami slow that they did not appear to the master to pull ;.t all; he had to jumj» among them and get hold of the lurebrace and put it in their hands, and, as he has said, put them to the point, if they meant to work the ship or not. Benjamin Roberts, the promoter, replied : " Captain, you will get yourself in trouble if you commence that with us." The rest of the watch all stood in angry silence ; all stopjjcd hauling and seemed in readiness for a row. The master then went aft, and fearing for the ship, she being then off the S. W. point of Anticosti, that at a critical moraout she would be on a lee- shore or caught in a squall, and the men refuse duty, he sent a message for Roberts, who appeared to him the ringleader, and told him that he would put him in irons. The master sent for the carpenters to assist him ; from fear or sympathy with the crew they refused, others of the crew did so also, and the master then attempted to do it alone. He had previously informed the owner, who with his wife and children were in the cabin, that he intended to put FOR LOWEK CANADA, 255 no mate on sod tx) obey e lath Sep- cks, ho WI18 apjitireutly why he did 1 answered, 3ed abusive g to entries saying that 1 such Ian- must have he voyage, there does or severity Line of the B promoter ently clad, the 18th of it they did d to juni[) 1 put it in be point, if in Roberts, yourself in rest of the auhng and 1 wont aft, VV. point of B on a lee- e duty, he 3 him the 1 in irons, lim ; from hers of the d to do it ho with his ided to put RohtTts in irons, and that ]w feared some trouble. Hear- ing the disturbance, the owner rushed on deck, where he found the master lying on his back with lloberts ujkju him on tho deck, the crew raugotl on the outside in a violent and tierce state of excitement, tlm boatswain iu advance of the rest with his knife unsheatlied, and another with a billet of wood. He immediuttdy struck lioberts over the heail with the flat of the cutlass once, perhaps twice or more; ihe owner admits that he did so, but is quite unaware of having wounded him with the point of the weapon. The effect was to release tlie master. Guns and a revolver were sent for — the wife of tlie master brought them from the cabin. Two guns were fired ott', one on one side of the vessel and one on the other side, with no other pur- [lose than to intimidate the crew, notwithstanding which, the promoter endeavored to incite the men not to return to th»Mr duty but to return to the master ; one of the crew, however, interfered and prevented further disturbance. The master has said that the crew shipped as able seamen, and that not more than four of them were such. He fuuud them laggards iu the discharge of duty, aud inten- tionally such ; that his patience was continually put to the test, and for the safety of his vessel, he deemed it his duty to put a stop to the irritating conduct of the crew by mak- ing an example of one of the worst of them. The maritime law in a case of this description is well settled : " It is hardly to be disputed," said Lord Stowell, in the case of the Agincourt, " that in a case of gross mis- beiiavior, the master of a merchant ship has a right to inflict corporal punishment upon the delinquent mariner. The Agincourt, 1 Ilagg. 271. Lowther Castle, lb. The mode of correction may be, not only by personal chastise- ment, but by confinement or imprisonment on board the ship. The extent of the punishment must depend upon circumstances. . In general, deadly weapons cannot be employed. But cases of necessity may justify the use of them." And in the case of mutiny, any force aud any weapon nuiy be used, which the urgency requires to repress it; BidnoK- WAIKR. 236 CASES IN THE VICE-ADMIRALTY COURT Bbidok- WATRB. but still with all the cautioa which the law requires in all other casoa of self-defence, and in vindication of rightful authority. {Abbott on Sh., Notes by Story and Perklna, p. 236.) In the case against the Lowther Castle, brought by a seaman, the act of disobedience was slowness of work, which he said he would take easy, and a disrespectful reply to his oflicers. For this he received thirty-six lashes on his bare back and an imprisonment of four or tive days in irons. In rendering judgment dismissing his suit, Lord Stowell was " inclined to admit that the punishment inflicted rather exceeded the offence," but the retrospective offences of the man, "gross idleness, skulking from the most impor- tant duties and the sheltering himaelf from immediate punishment by a dilatory performance of what was assign- ed to him, yet always performing it in a grumbling and growling manner and with a most disgusting show of dis- satisfaction, and not without the use of contumelious expressions, which even the vessel itself could not escape " were held to be a sufficient justification. In this case, not only to the promoter, but it may be said to every seaman on the ship, this language will apply. The forbearance of the master was remarkable, he showed no vindictiveness and was actuated by a desire to preserve discipline on board the ship, and no more. The owner of the vessel, with a defiant and mutinous crew before him, and the authority of the master subverted, acted with energy and decision. Had he not done so, passive resistance to the authority of the master would have assumed an active form, and possi- bly have caused loss of life. The Court is of opinion that the mariner, Benjamin Roberts, is uot entitled to the compensation claimed, and discharges Captain Dowell and John Henry Allen from any further attendance in this Court, and the suit of the promoter is dismissed with costs. O'Farrell and Pentland, for Promoter. M. J. Bradley, for J. H. Allen. tJRT equirea in all on of rightful and Perkins, aatle, brought tineas of work, spectful reply : laahes on his daya in irona. Lord Stowell lent inflicted ctive olfouces I moat impor- n immediate t waa assign- umbling and show of dia- 3ontumeIioua not escape " his caae, not ■y aeaman on arance of the iiveneaa and ne on board esael, with a iie authority nd decision, authority of 1, and possi- ; Benjamin [aimed, and Allen from suit of the FOR LOWER CANADA. :i>7 2Gth A'oveniber, 1880. THE BRIDGEWx\TER._DowELL. FOKEiaX VESSKL-SUIT FOK WAQES-PUOTEST BY COXStJL. 8tlf,.« ^n'**^ '^'""""*"'° '''*'"'° '"■■ *»»?««. til" consul of the United StatoH, upon reooivm^ notic of suit, made a representation in writ u7 aoco„.pan,ud by accounts shov^ing promoters to bo in debt to the Z' and roqnested that the case should not be entertained. HeU , thai ^0 exercso of jurisdiction by the court over causes of wal of fore,^ seamen being discretionary the court would, under throfroum. Btancos, decline to proceed with the present suit '*"»'»««''<'"«»• Tlio proraotera with thirteen others, shipped on hoard of the American ship Bridge water, KJOO tons, at London for a voyage "from London to a port in the United States of • America, or to Capo Breton, and from thence on a gen- "eral freighting voyage between the Columbia River "North, and Melbourne, South." On arrival at the pori of Quebec, they brought suit for wages aUeged to be due and prayed to be discharged from the ship, on the gi-ouuds of deviation, uncertainty in the description of the voya^^e and insufficiency and unfitness of food. ° ' The Honorable John Nelson Wasaon, Conaul of the Umted States of America, at Quebec, having received notice of suit, laid the following representation in writing before the court : " United States Consulate, "Quebec, Canada, Nov. 19, 1880. lo the Honorable " G. OkiU Stuart, " Judge of the Vioe-Admiralty Court, " I have the honor to represent that notice has been served upon me that an action has been commenced in Bridoe- WATKR. 258 CASES IN THK VICE-ADMIRALTY COURT BU'DOB- WATEB. " your Court on the part of Benjamin Roberts and other «' seamen of the American ship Bridgewater against said " vessel, to recover wages alleged to be due the promoters. " The ship's papers, including the shipping articles, were " duly deposited with me, as required by law, and are, as I " beUeve, substantially correct in form. Without quest ion- " ing in any way the jurisdiction of the Vice-Admi alty " Court of the Province of Quebec, in the premises, I haws " been led to believe, by reference to judicial decisions, that, " not as a matter of right, but of international courtesy, and «* to promote justice, British Covirts do not take jurisdiction " in the class of cases above mentioned, except to remedy " great wrongs. I herewith submit the accounts of wages " of the said seamen as made out by the master, and which *' I accept as pHma facie correct, showing that they are " indebted to the ship. Considering the character of the " crew, of which your Honour has had an opportunnity of "judging in a recent action, the hardship of a possible " detention of the vessel here during the winter, and the " firm belief that no substantial injury wiU result to the " seamen therefrom, I feel it my duty to respectfully ask " that your Honour will not take jurisdiction in their case- "I am, Sir, " Your obedient servant, " Jno. N. Wasson, " U. S. Consul" (yParrel, for promoters, moved that the proceedings he continued notwithstanding the said representation, inas- much as the same assigned no valid reason why the court should dechne to assume jurisdiction over the subject mattter of the suit. Bradley, for respondent, moved for the dismissal of the suit. He referred to The Herzogin Marie, 1 Lush., 202, The Octavie, 1 L. T. N. S., The Nina, 2 L, R. C. P., 38. Per Curiam. — I am decidedly of opinion that the cir- cumstances of the present suit entirely justify the applica- FOB LOWER CANADA. 259 ts and other against said e promoters. Tticles, were and are, as I out quest ion- je-Admi alty nises, I have 3cisions, that, jourtesy, and 3 jurisdiction )t to remedy nts of wages ir, and which hat tliey are racter of the )ortunnity of >f a possible nter, and the result to the pectfuUy ask in their case- tion of the United States Consul. I therefore decline to Bridoe- exercise further jurisdiction, and the action will be dismissed. ^^''^^^ I make no order as to costs. J. O'Farrel and C. A. Pentland, for Promoters. R. J. Bradley, for the Bridgewater. mt, Vasson, . S. Consul" •oceedinga be itatioii, inas- fhy the court ibject mattter missal of the Luak, 202, C. P., 38. that the cir- ■ the applica- 2G0 CASES IN THE VICE-ADMIRALTY COUKT Atalaya. Friday, 2^th January, 1881. ATALAYA.— Eve. FOREIGN ENLISTMENT ACT, 1870.— BEPORT OF REGISTRAR AND MERCHANT8.-DAMAGES. Damages in rnspect of detention restricted to the natnral and proxi- mate consequenoeB of it, and damages remote and consequential not allowed. This was an appeal from an award of the Eegistrar and Merchants, to whom, by interlocutory decree, the court had referred the assessment of damages in this matter. On the 7th instant, Mr. Cook, Q.C., for the applicant, moved that the report be reformed and amended, by substituting for the sum of £105 allowed in the first article thereof, " Such other and further sum, as would reasonably and suf- ficiently compensate and indemnify the applicant for the injury occasioned to himself and the firm in which he is a partner, by the unfounded prosecution of his vessel for an alleged breach of the Foreign Enlistment Act, 1870, and by the criminal and injurious charges preferred against himself throughout the proceedings," — all which, it was averred, had seriously affected his pecuniary interests, and the profitable business relations which he had hitherto maintained with the Spanish West Indies. Judgment.— ^on. 0. OJdll Stuart. A decree of this Court has awarded to James H. Bogart, a citizen of the United States, an applicant under the For- eign Enlistment Act, 1870, an indemnity for the seizure and detention of his brigantine the Atalaya, and the Eegistrar and Merchants (a) have by their report settled the amount (0 Mr. Dunbar, Q.C., Registrar, and Mr. J. G. Ross and Mr. Thomas Beckett, Merchants. UKT 3ISTRAH AND ttnral and proxi- }nsequential not Registrar and the court had itter. On the it, moved that ibstituting for hereof, " Such ibly and suf- )licant for the which he is a 3 vessel for an , 1870, and by igainst himself IS averred, had the profitable iintained with oes H. Bogart, under the For- ;he seizure and the Registrar ed the amount B and Mr. Thoinau FOR LOWER CANADA, at £1,034 73. lOd. sterling, composed of £626 14s. 3d. for actual detention during sixty-one days ; £119 lis. 2d. depreciation of a wood cargo from unloading and reloading, and the remainder for loss of time, etc. In the claim of the applicant the first article is for £8,000 sterling, damages for seizure and detention, and also for criminal conduct laid to his charge by the prosecution, which hpve affected him very injuriously, as also the profit- able business of a New York firm, in which he ij a partner, and its commercial relations with Cuba and the Spanibh West India Islands. This article has not been allowed in the report, except a small portion amounting to £105, and an objection has been made to it by the applicant on the ground that, according to law, and the proceedings and evidence of record at the trial, and upon the reference, costs and dam- ages greatly exceeding the sum of £105 should be paid to him under it. By motion, also, he has applied for a final decree in accordance with the report, excf^pt as respects a rejection of the first article, by which the report will be re- fonned, and the sum of £8,000 allowed to him. This motion is supported by the evidence taken at the trial, and by depositions since obtained from New York. In these, it is stated that the seizure and detention of the Atalaya and her cargo were telegraphed immediately to New York, and, along with the intelligence, the criminal charges against the vessel were published iu Canada, the United States and in Cienfuegos, Cibarien, Havana and other ports in Cuba, where the correspondents of the applicant's firm resided, which led to a diminuticn of the usual quantity of sugars consigned to it, compared with a corresponding period, by $523,081, the commissions on which would have been $26,154, and the applicant has sworn to a loss of S40,000. The cause shov/n against the motion is to be found partly in depositions of persons taken, aho in New York, before Mr. Archibald, late Her Majesty's Consul there, and partly in depositions taken before Mr. Cbm; ^eaw, the Judge of the Sessions at Quebec. 2GI Atalaya. 262 CASES IN THE VICE-ADMIBALTY COURT Atalaya. The depositions so taken in New York represent the ap- plicant's firm to be in reputation, wealth and credit above reproach, and that it was not aifected by the criminal charges against the Atalaya, or by her detention. Those taken before the Judge of Sessions are a renewed attempt to incriminate the Atalaya since the decree of this Court was pronounced, and to produce an impression, that had a box and some loose cartridges found at the bottom of the St. Lawrence been discovered before the trial, it would have affected the judgment. As this has been stated by the press, and appears to have been brought under the notice of His Excellency the Governor General, it will be well to rectify the matter in the progress of observations uovv to be made. The applicant relies on the terms of the Act that " if the court be of opinion that there was not reasonable and pro- bable cause for the detention, and if no such cause appear in the course of the proceedings, the court shall have power to declare that the owner is to be indemnified by the pay- ment of costs and damages in respect of the detention." These, it has been argued, import a complete remedy for all damages aiising, as well from the slander of his ship as from the loss of business occasioned by, and consequent upon, detention. It has been further contended on behalf of the applicant, that the type of a coolie or slave trader, assigned to his ves- sel in the pleadings of the Attorney-General and Minister of Justice, the accusations of sailing with a false register, a false manifest and under false colors, including the Cuban rebel flag, and the having on board arms and munitions of war, coupled with the seizure and detention, have operated such an injury, and occasioned such a pecuniary loss as to entitle him to redress in the form of an indemnity as allowed by the Act. To strengthen this argument, it has been fur- ther said that if a relief is not thus afforded, he will not have any remedy at aU, as from the Chief Executive authority downwards, immunity is granted to all who have partici- URT FOB LOWER CANADA. 2G;J iresent the ap- i credit above the criminal ion. ire a renewed decree of this ipression, that the bottom of trial, it would sen stated by kder the notice all be well to ans uow to be t that « if the able and pro- cauae appear U have power I by the pay- 18 detention." miedyfor all )/ his ship as i consequent ihe applicant, id to his ves- and Minister Ise register, a ig the Cuban munitions of lave operated iry loss as to ^ty as allowed bas been fur- , he will not ive authority lave partici- pated in the wrongs of which he has c(3niplained, as appears from the 28th section, which declares "that no damages shall bo payable, and no officer or local autliority shall be responsible, either civilly or criminally, in respect of the seizure or detention of any ship in pursuance of this Act," It may be as well first to notice the additional evidence offered by the Crown to meet the olyection of the applicant, before allusion is made to the argument of the counsel of the applicant. Depositions of several persons residing in New York have been, as I have observed, taken before ]Mr. Archibald, late Her Majesty's Consul tliere, who have stated that the character of the applicant and of his firm are irre- proachable, their wealth great and their credit to coiTespond. They go further, and say, that consequently they have suf- fered no damage as they have complained. Should this be considered as a plea of justification, and I can regard it in no other light, it is quite possible that before a civil court and jury it might be considered an aggravation, and lead to exemplary damages. In the matter of tlie cartridges, a man of the name of Louis Pelletier, a diver, found near the I'oint t\ Carey wharf at Quebec a box full ; this he carried to a man of the name of Joseph Nadeau, from him it went before the Judge of Ses- sions, who took theii- depositions ; the Judge affixed his seal to the box and made a deposit of it in the Eegistry. Mr. Yerret, Secretary of the Harbor Commission, in whose em- ploy Pelletier and Nadeau were, caused the former to dive again, and the result was some loose cartridges found at the same place. Tiie two men have been at the pains to state that the box had the appearance of being in the water two or three months, which would correspond with the period elapsed since the Atalaya sailed, and that the place where they were found was passed over by the boat of the Atalaya when under seiisure and detention. Had there been less zeal and more caution shown in relation to this box, there would have been seen stamped upon it the broad an-ow and other marks, indicating it to be the property of the Crown, Atalaya. 264 CASES IN THE VICE-ADMIRALTY COUBT Atalaya as coming from the Queen's stores, and therefore that it could not have come from Cuban insurgents. How it found its way under the track of the Atalaya's boat does not ap- pear, nor is it necessary to enquire. It is sufficient to say that at the argument, the Counsel for the Crown abandoned the matter, and that there is an end of this episode in the case of the Atalaya. The depositions last noticed have no bearing upon the present application which is to be dealt with on its own merits. Jurisdiction upon this court is conferred in this matter by the nineteenth section of the Act. After excluding that of other courts, it has enacted " that the Court of Admiralty shall, in addition to any power given to the court by this Act, have, in respect of any ship or other matter brought before it in pursuance of this Act, all powers which it has in the case of a ship or matter brought before it in the exercise of its ordinary jurisdiction." By the 23rd section it IS further enacted that " if the court be of opinion that there was not reasonable and probable cause for the deten- tion, and if no such cause appear in the course of the proceedings, the court shall have power to declare that the owner is Ui be indemnified by the payment of costs and damages in respect of the detention, the amount thereof to be assessed by the court, and any amount so assessed sliall be payable by the Commissioners of the Treasury." This case has therefore to be regarded as one of detention, having its cause in a marine tort, and is to be dealt tvith as such. Possibly the applicant has suffered from the opprobrious terms by which his brigantine has been characterized. Coup- led with the detention they may have deprved the appli- cant of many valuable customers. Probably the law maxim ub ijua ihi remedium may be at fault. Unfortunately there are exceptions to this just principle, and there are many cases where parties have suffered injuries from the acts and doings of others of which the law takes no cognizance. If it were intended by the Imperial Legislature that the Treasury TOT FOR LOWER CANADA. 2G5 jrefore that it How it found does not ap- fficient to say wn abandoned spisode in the 'ing upon the h on its own n this matter xcluding that of Admiralty court by this atter brought which it has Fore it in the I 23rd section opinion that m the deten- lourse of the clare that the of costs and lut thereof to issessed sliall sury." This ntion, having -vith as such. opprol)riou3 jrized. Coup- d the appli- e law maxim unately there e many cases bs and doings . If it were he Treasury should mako amends for the loss occasioned by its officers Atalaya. when it relieved them, it would have so enacted. In the absence of such a provision the argurnr 'urn ah incon- venienti cannot prevail. In nautical ca»(.r. where the de- tention of a vessel is the consequence of an unlawful act, a general rule, and one most prominent is, that the natural and proximate consequences of the act causing damage are to be considered ; (a) and both English and American Courts have generally concurred in denying profits as any part of tlie damages to be compensated whether upon contract or in tort. (6) The actual damage sustained at the time and place of the injury, and not the profits which might probably have been realized if the act complained of had not ocetirred, constitutes the just measure of damages to be awarded to the injured party, (c) Before pronouncing a finaljudgment consonant with these principles, I feel it to be the duty of this Court to bring under notice the practical working, of which this case furnishes a striking illustration, of the 23rd Section of the Foreign Enlistment Act, 1870, which confers upon the executive authority a power to seize and detain a ship and cargo, and upon a Court of Admiralty a power to release them and award compensation in costs and damages in respect of their detention. When the Executive and Judicial powers are blended and are made to co-operate injustice is frequently the consequence, and this may be such a case. In the civil courts of this Province, upon evidence similar to that laid before the Chief Executive authority on the occasion of issuing the warrant in this case, the person may be an-ested and property to any amount attached before trial and judg- ment as in the case of an absconding debtor, or p. fraudulent secreting of property with intent to defraud, and tl is through the act of a ministerial officer, but in a case of injustice the judge is at once ready to accord immediate relief. O'jSedgwickMeas.of Dam., 112. (r) For cases see Prit. Dig. Vo. (b) lb. 69. Registrar and Merohants, U3 ct Beq. 26G Atalata. CASES IN THE VICE-ADMIRALTV COURT That a Foreign KiJiatment Act ia au indispcnsaWc ncoos- sity, is recognized by civilized uations. Groat Britain lias hers, and the United States of America liavc theirs, but they diflfer in material respects as in the ease of a citizen of a Foreign State transiently within the United States, (a) The mode prescribed for giving effect to each resi)ectively also varies. The Imperial Statute is attended with difficulty and may be productive of serious results. Without parti- culur reference to the cases of the Alabama and others, it may be observed that the term equipping in relation to a ship, which includes the furnishing of arms and munitions, has occasioned much legal difficulty. In this case it seems to have been quite misunderstood. The prosecution of the Atalaya has been based upon the supposed simple fact that there were arms and munitions of war on board for the use of Cuban insurgents. At no stage of the proceedings has any person l)een charged with a violation of the Act. This Statute, with its predecessor, 59 Geo. Ill, c. G9, repealed by it, constitutes no offence unless there be an intention in some one to violate it. The intent is the essential ingredient to effect a . .-udemnation or forfeiture, or to constitute the misdemeoi' ,: i'iiieh it creates. At and after the issuing of the war" ri iVsr the detention and search, had she been found laden widi rules, pistols and gunpowder to her upper decks, she would h iv.) been guilty of no offence, unless it was made to appear that her owner had the intent to use them in aid of the insurrection ; whether on board of a ship or in a hard- ware shop they are but merchandize. She might have sailed with them to Cuba or any where else with perfect impunity, without contravening the Act. A distinguished writer in an essay upon the Act has said, " It prohibits " warlike enterprises, but it does not interfere with commer- " cial adventure. A subject of the Crown may sell a ship of " war, as he may sell a musket, to either belligerent with im- " punity ; nay, he may even despatch it to the belligerent " port. But he may not take part in the overt act of making (a) Revised Stat. U. S., 5,912. UUT POK LOWER CANADA. 2fi' snsablo necea- it liritain liaa '<; theiis. but jf a citizeu of States, (a) I respectively ?ith ditTii'iiIty nthout i)ai'ti- xnd others, it relation to a id munitions, case it seems cution of the iple fact that d for the use iceedings has le Act. Tiiis , repealed by iutentioii in ial iugretlieiit unstitute the he issuing of e been found upper decks, it was made them in aid or in a hard- might have with perfect listinguished It prohibits ith coinmer- sell a ship of ent with im- s belligerent ct of making "war upon a people with whom his Sovi loign is at peace. " The purview of the Foreign 1" distnunt Act is t' prohibit a "breach of allegiance on the part of the Hubj( t against his "own SovcriM -7), not to prevent tmnsactions in contraband " with the belligerent." (a) The same doctrine is to be found in the commentaries of Kent as to the intent of the owner, where it is also said of Foreign Enlistment Acts, "that by making municipal rc^nilations of this kind a naticm changis its whole mode of proceeding, points out a specitic and technical meth.jd of punishing its citizens for this class of breaches of neutrality, and is bound by all the niceties and difficulties of such a technical remedy." (6) Unfortunately, in this case a foreigner is the suffering party. Neither at the time of the seizure and detention, nor sincf^, has there been any arcusation against him personally or against anyone else. Unti ■ uiere was some evidence to compromise hi ra, neither the vessel or cargo should h. o been touched. The question then naturally presents itself, how has it happened that a considerable sum of money is to be drawn from the Imperial Treasury to remedy a wrong and an injustice done to the applicant ? The answer may fairly be said to be the absence of an effectual check against the undue procuring of a warrant of search and detention from the Chief Executive authority under the twenty-third section. It provides only that if he is satisfied as to there being reasonable and probable cause to believe in an equipping he may issue his war- rant. A perusal of the depositions of Count Premio Real, the Spanish Consul-General, and his detective, will satisfy any reasonable person that there was such cause to be found in them for believing that the Atalaya was laden with arms and munitions, equipped in the sense of the Act ; and at the same time it is to be observed that the vessel had com- menced her voyage, and had she escaped with them, and the slaughter of Spanish loyal subjects the consequence, there would have been a reclamation from Spain for an indemnity, Atai.v . * (a) HietoriouB, 168. Sir Wm. V. Barcourt. (*) International Law, Ed, Abdy. MICROCOPY RESOLUTION TEST CHART (ANSI and ISO TEST CHART No. 2) 1.0 1^12.8 ^ US lUku 2.5 2.2 I 2.0 1.8 ^ APPLIED IIVHGE Inc :^r^ 1653 East Main Streel ~^Z Rochester, New Yorlt 14609 USA '■^= (7t6) 482 - 0300 - Phone ^= (716^ 288 - 5989 -Fax 268 CASES IN THE VICE-ADMIRALTY COURT Atalaya. the responsibility for which would have rested with the Chief Executive authority. His Excellency the Governor- General, therefore could not possibly do otherwise than issue his warrant. But if the evidence to satisfy the Chief Ex- ecutive authority was sufficient, which it undoubtedly was, then it is quite certain that the information upon which the Consul-General of Spain acted was most defective, and that his relying upon the erroneous representations of another has resulted in the detention of the Atalaya without reasonable or probable cause. If it can be left to a detective in the working up of what he may call the case, so to influence the political or commercial agent of a foreign country, as to set in motion against a subject of a friendly nation, so dangerous an engine of power as the Foreign Enlistment Act, 1870, there must be some deficiency in the enactment. The offi- cial correspondence published in the case of the Alabama between Earl Russell, Secretary of State, and Mr. Adams, Ambassador of the United States, shows the danger of tardy action where a vessel escaped, and this ease shows the da iger of haste, where one was detained. The difficulty thus present- ed is one of the most serious nature, even where neighboring countries are at peace, but in times of internal commotion such as have existed in thia country and the United States, or when they are at war, the danger becomes indefinitely magnified. The coasts of the Dominion on the Atlantic extend from Maine to Cape Breton, their line runs along the Gulf and the great estuary of the St. Lawrence, and the border line passes through the St. Lawrence and the great Lakes across the continent to the Pacific Ocean, and if from any point communication by the electric wire can procure the seizure and detention of a ship and cargo owned by a subject or a foreigner, there is no amount of loss to which the Imperial Treasury may not be exposed.. Having conceived it to be the duty of this Court, the only jurisdiction to which the subject belongs, to bring under notice the practical effect of the twenty-third section of the Act, I now proceed to pronounce a final decree. The ted with the he Governor- ise than issue he Chief Ex- )ubtedly was, ion which the Ave, and that f another has ut reasonable tective in the influence the itry, as to set so dangerous t Act, 1870, It. The offi- the Alabama Mr. Adams, nger of tardy 's the da iger thus present- neighboring il commotion (■nited States, 1 indefinitely the Atlantic 3 runs along 3nce, and the ad the great and if from can procure owned by a 0S8 to which FOR LOWER CANADA. Registrar and Merchants have stated their opinion that the proof does not substantiate the entire claim for £8,000 sterling. I pronounce no opinion on this point, because I do not think the Act requires it. The Court for a similar reason takes no cognizance of the offensive charges made against the vessel of the applicant, because any damages resulting from them in the loss of business and profits are remote, and not the natural and proximate consequences of detention. The objection of the applicant therefore cannot be maintained. The decree is limited to the sum of ^1,034 7s. lOd. sterling. As respects the costs of reference, it is to be observed, that the evidence for the Crown taken in New York has been useless and inoperative. There should have been a motion made to exclude the subject matter of the applicant's article No. 1, so as to prevent its going before the Eegistrar and Merchants, and thus the legal question which it involves would have been decided without evidence. Each party will therefore pay their own costs upon the reference. Cook, Q.C., for the Applicant. Alley n, Q.C., and Larue, for the Crown. 269 Atalaya. lurt, the only bring under Bction of the icree. The 270 CASES IN THE VIUE-ADMIRALTY COURT Margabet M. Friday, Zrd June, 1881. MAKGARET M.— Paqiet. Wliere two steam tugs were from a distance approaching each other nearly end on, one light and the other with a train of booms in tow, and the former inclined from her course upon her starboard helm, and afterwards crossed upor a hard-a-port helm and struck the tug having the tow ; held, that she was in fault, and that the tug with the tow was not to blame for sturboarding at the moment of collision, and for not reveroing. Judgment.— Fy?i. 0. Okill Sttutrt. The collision, complained of by the St. Lawrence Steam Navigation Company, Avhose name haa by Act of Parlia- ment, been substituted for St. Lawrence 'iow-Boat Com- pany, and owners of the Albion, a wheel steam tug of 107 tons, as against the Margaret M., a screw tug of 44 tons, took place opposite the lighthouse, half a mile above Point St. Antoine, on the south shore of the St. Lawrence, 24 miles above the city of Quebec. The course of a steamer on the way up the St. Lawrence in this locality is about W. by N., until reaching Point St. Antoine ; she then turns upon a course about W. by S., and r-osoes to the south of the St. Croix light, a few miles fi; up the river. The channel is about 600 yards in bieaci-n and runs along the Pointe-auoa-Trembles and the Ecureui' . shoals on the north side, and the batture of St. Antoine on the south. At about 10 o'clock in the morning of the 15th of July last, the Albion had made the round of the point with a tow of 44 booms, chained two and two astern, the whole with the tow line, being about 400 feet. The tug Margaret M. had been seen from her for some time before rounding the point ; and afterwards they appeared to be approaching from almost opposite courses. The Albion was seen from the Margaret 3URT FOR LOWER CANADA. 271 ching each other Df booms in tow, starboard helm, d struck the tug lat the tug with aent of coUiaion, rt. wrence Steam ict of Parlia- w-Boat Com- ,m tug of 107 ig of 44 tons, i above Point Lawrence, 24 I of a steamer ility is about he then turns the south of Q river. The ins along the i on the north ih. At about st, the Albion of 44 booms, the tow line, M. had been le point; and from almost the Margaret M. at about the same time. The Margaret M. was liglit and hj,d no tow ; her speed was from nine to ten kiKjts, while that of the Albion, with that of the flood tide, which was running about three and a-half, amounted to about six, the conjoined speed of the vessels exceeding fifteen knots an hour. So soon as the pilot of the Margaret M. saw the side lights of the Albion and her two mast head lights, he became aware that she had a tow of booms, as there was no raft light behind her. The speed of the two vessels con- tinued unabated until opposite the St. Antoine light, when (,he stem of the Margaret M, came into collision with the fc^arboard side of the Albion, about 30 feet from lier stem. At the moment of collision the Margaret M. was on a hard- a-port helm, and the Albion starboarded hers, but without effect. On the one hand, th3 Albion has attributed foult to the Ma'.'garet M. for that while she was on the proper course, slightly on the south side of the channel, bearing some- what to the south of the St. Croix light, the Margaret M. descending on a parallel course about 360 f^et to the north, suddenly changed it towards the south, and thereby came into collision; while on the other hand, for the Margaret M., it has been contended that she was not on the north side of the channel, but on the south, that she saw the side lights and mast head lights of the Albion two miles off, that her green light first disappeared, then her red and mast head lights were visible from the port bow of the Margaret M., that she changed her course, showing her green light, and hove across the bow of the Margaret M. Not only is the evidence on one side in conflict with that of the other upon these statements, but the evidence on each side is, to a certain extent, in conflict with itself, which has been a source of some embarrassment to me. The difiS- culty is as to whether the Margaret M. was on the north side of the channel. The idea of the people of the Albion appears to have been that the Margaret M., a screw steamer drawing much more water than the Albion, was afraid of MARaARET M. 272 CASES IN THE VICE-ADMIRALTY COURT Marraeet running upon the shoals upon the north side of the channel, and attempted to cross over to the south, a supposition somewhat fortified by the opinion of some of the witnesses for the Margaret M., who say that she should have stopped her spe3d. The court is much relieved from difficulty on this score by the impartial testimony of Captain Humphrey, of the tug Rival, which had been in advance of the Albion from the time she left Quebec. He had two sea-going schooners in tow, and passed the Margaret M. when about a mile or a mile and a-half ahead of the Albion. The Margaret M. passed the Rival, starboard to starboard, about 72 feet apart. Captain Humphrey seems to have kept his eye upon the course of the Margaret M. for a quarter or half a mile after she passed, and remarked to his pilot that if she continued so much to the north she would run upon the Pointe-aux-Tremhlea shoals. These two vessels were meeting at first end or nearly end on, and, it is said, wera "dead ahead." It is also said that the Albion was in the wake of the Rival. If this be so, the Margaret M. must have starboarded her helm and gone over to the north before she came into contact with the Albion. This being so, it was for her to explain how, after passing the Rival and meeting the Albion at their conjoined speed of a mile in four minutes, she reached the south side of the centre of the channel, where the collision occurred. The mode of explanation attempted has been the placing of the Margaret M. on the south side of the centre of the channel, ani a pretension that the green light of the Albion was seen, that she closed it and showed her red and afterwards her green, wiien the helm of the Margaret M. was put hard-a-port. But this by no means accords with the evidence of the master of the Margaret M. He has said that, not once but twice, he had recommended his pilot to go further to the south, which he dechned doing, and it was only on his doing so a third time, and stating that the Albion had a tow, and that it wa3 their business to clear her, that he did so. It was then that her helm was put hard-a-port, after which by sound- ODRT of the channel, a supposition [■ the witnesses I liave stopped n difficulty on lin Humphrey, of the Albion two sea-going J. when about Albion. The arboard, about have kept his : a quarter or > his pilot that )uld run upon 3 vessels were is said, wera on was in the jaret M. must .6 north before is being so, it he Eival and i of a mile in the centre of The mode of ■ the Margaret lannel, and a vas seen, that ^s her green, . hard-a-port. dence of the not once but urther to the '■ on his doing ad a tow, and d so. It was ich by sound- FOU LOWEIl CAXAMA. :i6 ing, her master found that si 'le was on the north side of the Maboah channel. This leads me to the conclusion that the Mar-a. M., after she passed the Rival on the north, led the nil of the Albion to believe tliat slie would I'aret lot - - pass her in the came way; instead of which he, possiblv from fear of the shoals, crossed a moment too late, wiieu a miscalculate • f the speed of the vessel led to the collision. Had she slackened her speed in due time, or stopped and reversed there would have been no collision. The Albion even if time were given her for the purpose, coul.l not adopt this course, because the force of the tide would have thrown the booms on her paddles and made her ungovernable. The starboarding her helm at the last moment does not appear to have contributed to the collision. The view I liave taken of the case agrees with that of the assessors, as is to be seen from the following questions and their answers : — 1. After tlie Albion with her tow had passed the turn at Point St. Antoine had she assumed her proper course ? Ansiver.-She had, and for about half a mile. 2. Were the two vessels then approaching "end on" or " nearly end on ? " Answer.-We are of opinion that, at a long distance off, they were nearly "end on," but as they approached to wi hm about three quarters of a mile, the green light of the Albion was seen on the starboard bow of the Margaret M and remained so until the Margaret M. ported her helm' which was the cause of the collision. 3. Considering the conjoined speed of the two vessels should either, and which of them, have slackened her speed or reversed ? Amwer.~The Margaret M. should have slackened her speed to ascertain the position of the Albion with her tow before she altered her course, and we think the Albion was uoi called upon with her tow to slacken her speed. 4. At the time of the porting of the helm of the Margaret M. KC 274 CASES IN THE VICE-ADMIKA' TY COUKT MAutiABET M. was there time for the Albion to get out of her way, or ^^' could she by any course have avoided the collision ? Answer. — We think not, as they were too near each other. 5. Do you think the Margaret M. solely to blame for the collision ? Answer. — We do. E. D. AsiiE, Commander, R. X, F. GouRDEAU, Harbor Master. The Court : — Judgment for promoters with costs, — dam- ages to be assessed. F. A. Andrews, Q.G., for the Promoters. Charles A. Pentland, contra. UUT of her way, or llision ? ;oo near each blame for the lander, R. X. lor Master. costs, — dam- FOR LOWER CANADA. 27. Saturday, 30th June, 1881. IDA. — EOULSTON. \ plea of irresistible accident overruled, on the ground that the vessel proceeded against had attempted to bring up inld wel t tu ^zzi:::-^^---^'^' ^^ - e^ufp^entneoes:::;;" The litigation in this case arose from a coUision on the upper ballast ground at Quebec. The weather was clear iV T,'''«'" u" ^'''^' '"^ '^' ^^^^ ^'^'-S from the east. Ihe British Lion, a barque of 1098 tons, was lying at anchor with other ships, when the Ida, a barque of 571 whT'h ? Ju^^ ^" ^''"' '^ ^''' '""^ ^'' SO her anchors, which not holding, she drifted upon the British Lion The ktter sustained damage for which this suit was brought. The plea was inevitable accident occasioned by the irresis- fault of the British Lion not starboarding her helm Per Gariam,-To support a plea of inevitable accident. It must be shown that the collision could not possibly have been prevented by the exercise of ordinary care, caution and maritime skill. It appears that at about three o'clock in the afternoon of the 9th of May last, the British Lion was and during two hours previous to the collision had been, ridinc safely to her starboard anchor, in nineteen fathoms of water" upon about eighty fathoms of chain. She was on the upper baUast ground, and the farthest westward of any of the ships * there, save one on her port quarter. The wind was a strong easter y breeze, which, with the flood tide running about three knots an hour, might drive a vessel through the water at the rate of five or six knots. The Ida. then from sea, had lowered all sail except her upper top sails, and these were taken m when about opposite the Citadel. Arriving 276 CASES IN THE VICE-ADMIKALTY COUKT Ida. at the ballast grouiul under bare poles, she made an attenij)t to anchor at the distance of about half a mile ahead tjf tlie British Lion, while coming round and uj> to tlie wind and tide. Her failure in doing so was caused by circumstances detailed in the evidence of the Ida's chief officer, second mate and pilot. The first has said, " before ' e droj)pedour anchor, our helm was put to starboard by the pilot's orders, we were then running before the wind, and we came round from four to six points before we dropped our starboard anchor; afterwards we dropped our port anchor, our port chain parted at about sixty fathoms, and both cliain and anchor; were lost. We continued to pay out chain on tlie starboard anchor, and were still paying out on that anchor when the vessels fouled. Our anchors did not fetch us up to the moment of collision, we were driving with wind and tide all the time." The second mate of the Ida has said, " the chain on the starboard anchor did not pay out very easily, but that was not the reason why we let go our port anclior ; we dropped it wlien we found that the starboard anchor would not hold. The port chain ran out by itself, but the starboard chain did not run out so freely because the normans were gone on the windlass ; it did not jam, how- ever, it was the chain flying over the windlass that made the normans give way." Then the pilot of the Ida, Treffl(5 Simard, has said that her port anchor chain was an old one, and, although still good enough to hold her in moderate weather, it was not sufficient with the wind as it was on that day ; and that if it had been as good as the starboard chain and held, it would have brought her up. It is also in evidence that when the vessels fouled, the Ida's starboard chain cable was almost perpendicular to the hawse pipe, and that after the vessels separated, she was brought up about a mile further up the river by her starboard anchor without its stock and with one of its flukes broken. It being further proved that the Ida might have been safely brought up at the place where she attempted to anchor, several of her witnesses stating that they would have anchored her OCRT ado an attempt It! alieatl of the I the wind and ' circumstances olHcer, second dropped our e pilot's orders, we came round our starboard ichor, our port ioth cliain and it chain on tlie on that anchor lot fetch U8 up with wind and i Ida has said, t pay out very let go our port i the starboard a out by itself, ely because the not jam, how- lass that made the Ida, Treffl(5 was an old one, er in moderate d as it was on 3 the starboard p. It is also in Ida's starboard he hawse pipe, fas brought up tarboard anchor Token. It being I safely brought ihor, several of e anchored her FOR LOWER CANADA. there at the time, no other conclusion can be come to than that the cause of the collision was the Ida's starboard anchor chain not running out freely, eithc- from the defective wind- lass or some other cause, not exi)iained ; also to a defective I)ort chain cable, and very possibly to her being brought round with too much headway, a view of the cjMe strongly supported by the fact that, after the collision, the broken starl)oard anchor held her. Good seamanship seems to require that a vessel should not anchor directly ahead or directly astern of another vessel in the direction of the tides or prevailing winds, unless at such or so great a distance as would allow time for either vessel to take measures to avoid collision in the event of either driving from their anchor3,(«) and in the case of the Lotus, (b) in this Court, it was held that when a vessel is lying at anchor and another vessel is placed voluntarily by those in charge in such a position that danger will happen if some event arises, which is not improbable, those in charge of the second vessel must be answerable. If it were true, as many of the witnesses of the Ida say, that it was blowing a gale and the Ida was driving before it, with an increased rate from ihe tide, it was certainly the height of indiscretion to round as she did upon faith in an impaired windlass and an insuffi- cient chain cable, instead of bringing to astern of the British Lion, where she could have done no injury to her or any other vessel. The plea of inevitable accident must therefore be overruled, as well for mismanagement on board the Ida, as for her not being furnished with apparel adequate to the safetv of herself and others. There remains to mentioi. ' li fault imputed to the British Lion for not starboarding her helm. If it were true that the collision could have been avoided by this being dojie, and she neglected to do it, the fault would be mutual and each vessel would bear its own loss. The Ida's pilot says that he hailed the British Lion, at the distance of half a 277 Ida. (a) The Cumberland, 1 L. C, Adm. R. 75. (6) lb. vol. 2, p. 58. 278 OASES IN THE VIOE-ADMIHALTY COUIIT Ida. mMii's length to starboftnl hor helm, and ho iiiul others, stiitii their belief that she did uotdo so. But thia testimony is sufficiently contradicted. The chief mate of the Hritish Lion had been watching the approach of the Ida broa.iside on, and imtil he heard the call to atarlward, he was i.. doubt as to her piussing to port or starboard, and then ho instantly ordered tlie helm hard a-starboard. His evidence in this rospiict is confirmed by several on board of tho liritisli Lion, who say that his order was instantly carried into ellVtct. The suit must therefore bo maintained against tho Id,i, the damage of tho British Lion to bj ascertained in tho usual way. Cook, for tho Promoter. Alleyn, Q.C., for tho Ida. OURT ho iitiil othors, this tostiiuony of Uu! Hritish ) Ida broiuLsido le was i.. doubt an ho instantly vidonci! in this British Lion, ud into liHiict. it tho Id.i, the d in tho usual FOR LOWER CANADA. Mil' Friday, llth November, 1881. THE EUCLID.-Andekson. Whor.i an aprreemont was mado on the Lower St. Lawrence with a tug to tow a Hhip to QucIm^o, Montreal and back to Quebec, .Id :— 1. That the tug havinjT towed tho Hhip to Quebec and Montreal her owner could not transfer the contract to another to complete it, and 2. That ho could not substituto an inferior tug with additional tow for tho purpose. Qiimre, as to the jurisdiction of tho court. This suit against the barque Euclid, of about 470 tons, was brought by the owners of the Margaret M., Conqueror No. 2, and Dauntless, tugs employed by them in towing vessels in the gulf and river. The case, as stated in the libel, was that the promoters agreed to tow the Euclid from Bersemis to Quebec, thence to Montreal at tariff rates; that the Margaret M. towed her to Quebec, that the Dauntless moved her from the anchorage to a wharf for a sum of $10. That the barque was towed to Montreal by the Conqueror No. 2, that the towage from Bersemis to Montreal is $390, which with another sum r„r services at Montreal forms a sum of $400. That on the 16th of June, the master of the Euclid telegraphed the promoters that he wanted a steamer for the next day, Thursday, that on the 16th of June, the promoters offered to tow the vessel to Quebec in accordance with said agreement next day, but in violation of the said agreement the master refused to permit the promoters to tow the vessel, and employed another tug at a cheaper rate, which occasioned a loss of profits to the promoters of $313.82, which with the sum of $400 already stated forms $713.82. The respondent admitted the liability for the 1400, ana tendered and paid it; but by his plea asserted that the agreement included towage not only from Bersemis to LjCLin. 280 CASES IN THE VICE-ADMIRALTY COURT EfCLiD. Montreal but from Montreal to Quebec with tlie Margaret M., instead of which the promoters offered the Resolute, not their property nor in their possession, to tow the Euclid along with two other vessels to Quebec, for which the Resolute was unfit ; and her master declined to be answer- able for the safety of the Euclid. Per Cunam.—The promoters have stated in their libel an agreement to tow from Bersemis to (Juebec, and from Quebec to Montreal only, and claim damages under the same agi-eement for not being allowed to tow to Quebec, by no means a legal inference. I do not see that this Court can award damages for a breach of contract as stated in the libel. But as each party has submitted the case upon the supposition that the con- tract involved a re-towing to Quebec, I shall, upon this view, express my opinion. When the Euclid was ready to leave Montreal, the promoters had not one of their own steam tugs tliere. They, when asked to tow her, refen-ed her master to Mr. John Wilson, owner of the steam tug Resolute, and made an agreement with him to perform the towage to Quebec for seventy-five dollars. It seems that the Resolute was to tow two other vessels, a brig and bri- gantine, and that the Euclid was to be added to them. Tlie Resolute was of 140 tons and 75 horse-power. Tlie Margaret M. was twice her strength, and the Conqueror No. 2 still more powerful. Mr. Wilson was of opinion tJiat he could tow the three vessels safely by the Resolute, but persons of nautical skill, and whose business it was to know, were of a different opinion. The pilot of the Euclid declined to go in tow with the other two vessels, and the pilot of one of them told the pilot of the Euclid, that if the Euclid went, he would not go. One of these pilots had before been towed by the Resolute when he was in charge of other vessels, and has expressed his opinion that the Reso- lute was not equal to towing the three vessels. Upon these opinions the master of the Euclid acted, and he did rightly. Had he done otherwise, and an accident had happened DURT li tlie Margaret . the Resolute, tow the Euclid for which the [ to be answer- d in their libel jbec, and from .ges under the to Quebec, by damages for a t as each party 1 that the con- lall, upon this did was ready le of their own w her, refen-ed the steam tug to perform the It seems that a brig and bri- ided to them, e-power. The the Conqueror i^as of opinion • the Resolute, iness it was to t of the Euclid essels, and the !lid, that if the lese pilots had as in charge of that the Reso- . Upon these lie did rightly, had happened FOB LOWER CANADA. from defective power in the tug, at one of the many and dangerous twists in the channel between Montreal and Quebec, he would have incurred a serious responsibility. He was obliged to engage another tug to tow the Euclid to Quebec for $160, and seems to have been willing to pay the promoters the towage less that sum, an offer rather injudi- ciously declined. The suit cannot be maintained for two reasons ; the first is that the agreement to tow was with the owners as owners of three powerful tugs, in whose place the promoters had no right to substitute the owner of an inferior tug, and the second is that had they the right to substitute another tug, it should have been one of greater power, or else the Resolute minus one of the other vessels. The con- tract which has been proved has not been performed by the promoters. If they have not re*- 'ved profits upon a towage to Quebec, it is not the fault ox ohe respondent but their own. The respondent has in no wise been guilty of a breach of the contract, and the Court cannot award dam- ages against him. The decree I make is that declaring the tender of $400 to have been sufficient, the demand of $313.82 for damages over and above such tender, is dismissed with costs. Pentland, for the Promoters. William and Archibald, Hay Cook, contra. 281 EucLin. 282 CASES INT THE VICE-ADMIRALTY COURT Farewell. Friday, 11th November, 1881. THE FAREWELL.— CoTfi. The Dominion Parliament may confer on the Vice-Admiralty Courts jurisdiction in any matter of shipping and navigation, within the terri- torial limits of the Dominion. When an Act of the Dominion Parliament is in part repugnant to an Imperial Statute, effect will be given to its enactments in so far as they agree with those of the Imperial Statute. This was an action for indemnity in the nature of pilotage, based upon the Pilotage Act, 1873 (36 Vic, chap. 54), under the circumstances noticed in the following judgment : Per Curiam. — The promoter, a pilot, was engaged by the respondent, owner of the Farewell, to pilot her from Quebec to Bic, the limit of the pilotage district in the Lower St. Lawrence. At Bic he was, without his consent, taken to sea on the 2l3t of November. On the 14th of Decem- ber, at sea, he was transferred to the Bolgaya, of Dundee, taken to St. Thomas, thence to Havana, by a steam vessel to New York, and by rail arrived at Quebec on the 22nd of January last. By the fortieth section of the Dominion Pilotage Act, 1873, it is enacted " that no pilot shall, with- out his consent, be taken to sea, and every pilot so taken shall be entitled to cabin passage, and over and above the pilotage dues, to the sum of two dollars a day from the day on which the ship passes the limits up to which he was to pilot her." In the terms of this provision the promoter has claimed a sum of $280.45. For pilotage dues, there is no claim. By act on protest, the respondent declines this juris- diction, on the ground that the Dominion Parliament has no legislative authority to enlarge or restrict the powers of this Court as one of Imperial creation. If this be true, the Court cannot enforce the fortieth section of the Dominion Pilotage Act, 1873, which awards the indemnity demanded, and no remedy, either in rem or in personam,, can be afforded in this suit under that Act. )URT Admiralty Courts I within the terri- I repugnant to au 3nta in ao far as jre of pilotage, ic, chap. 54), ing judgment : .3 engaged by )ilot her from ; in the Lower jonsent, taken Uh of Decem- 'a, of Dundee, I steam vessel m the 22nd of the Dominion ot shall, with- pilot so taken .ud above the from the day lich he was to promoter has as, there is no nes this juris- arliaraent has the powers of is be true, the the Dominion ity demanded, nam, can be FOR LOWER CANADA. By the British North America Act, 1867, the exclusive legislative authority in the Parliament of Canada extends to the regulation of navigation and shipping. As an incident to this power, the courts of Vice- Admiralty necessarUy come under its control, as may be seen on reference to the case of the Hibernian, (a) determined by this Court, and its decis- ion aflSrmed by the Privy Council. The case of the Eliza Keith may be referred to on the same point, (b) atid as conclusive, the cases of the Samuel Gilbert and Frankhn B. Schenck, wherein, upon the information of Sir John A. Macdonald, the Attorney-General, two American vessels were declared forfeited by the judgment of the Court, for an infraction of the Dominion Act " respecting fishing by foreign vessels," 31 Vict. cap. 61. In all these caaes, how- ever, it is to be observed that the jurisdiction was exercised in matters within the territorial limits of the Dominion, which « do not extend beyond three marine miles (or a marine league) from the coasts, such being the distances to which, according to the modem interpretation and usage of nations, a cannon shot is supposed to reach." (c) Another section of the PUotage Act, 1873, the forty- second, declares that so soon as the vessel passes out of the pilotage district, the service is performed, which disconnects the pilotage dues from the subsequent indemnity for being taken to sea. The consequence of this is, that the Domi- nion Parliament PUotage Act, 1873, awaixJs an indemnity either for an injury sustained upon the high seas, or for an obligation there incurred. This is the exercise of a power beyond the territorial limits of the Dominion, and is so far void unless relieved by Imperial Legislation. By the Merchant Shipping Act, 1854, s. 357. it is enact- ed that no pilot, except under circumstances of unavoid- able necessity shall, without his consent, be taken to sea or beyond the limits for which he is licensed, in any ship whatever, and every pilot so taken, imder circumstances of unavoidable necessity, or without his consent, shall be 283 Farewell. (rt) 2 Stuart's V. A. R. 156 ; 4 P. C. App. 5U. (*) 3 Quebec L. R., p. H.'i. {c) Forsyth's Con. Law, 25, 284 CASES IN THE VICE-ADMIRALTY COURT Farewell, entitled, over and above his pilotage, to the sum of lOs. 6d. a day to be computed from and inclusive of the day, on which such ship passes the limit up to which he was engaged to pilot her, and inclusive of the day of his being returned in the said ship to the ])lace where he was taken on board, or up to and inclusive of such day as will allow him, if dis- charged from the ship, sufficient time to return thereto, and in such last mentioned case he shall be entitled to his rea- sonable travelling expenses." From this enactment, the clause of the Dominion Pilotage Act, 1873, varies in this, that it allows an indemnity to the pilot when taken to sea without restriction, while the Imperial Act provides the in- demnity only under circumstances of unavoidable necessity. Then the per diem allowance of the one act is two dollars, and that of the other is ten' shillings and six pence sterling. As respects the specific allowances of the Dominion Act, they may be brought under the head of travelling expenses allowed in the other. It may be further noticed that the disconnecting of the pilot service from the indemnity, does not appear in the Imperial Statute. By the Vice-Admiralty Courts Act, 1863, the Imperial Parliament conferred on this Court jurisdiction over claims in respect of pilotage, and the Merchant Shipping Act allows the indemnity over and above his pilotage in the same con- nection, and thus makes the pilot's indemnity incident to his having piloted the vessel. It was held by this Court in the case of the Haidee that where it has original jurisdiction of the principal matter it has also cognizance of the incidents thereto ; (a) and again, by Chancellor Kent, it was said that where the Court of Admiralty has original cognizance of the principal matter it has also of the incident, though that in- cident would not of itself, and if it stood for a principal thing, be within the Admiralty jurisdiction. (6) Even if there were no such enactments as those in the Vice-Admiralty Courts Act, 1863, and the Merchant Shipping Act, it by no means follows that a person taken to sea without his con- (rt) Stuart's V, A. E., vol. 2, p. 25. (ft) 1 Com. 5 379. FBT FOR LOWER CANADA. 285 m of lOs. 6d. lay, on which IS engaged to y returned in on board, or T him, if dis- 1 thereto, and ed to his rea- actment, the i^aries in this, taken to sea ivides the in- ble necessity. 3 two dollars, snce sterling. >minion Act, ling expenses iced that the lemnity, does the Imperial 1 over claims ig Act allows he same con- Qcident to his Court in the urisdiction of the incidents was said that lizance of the ough that in- incipal thing, iven if there ce-Admiralty Act, it by no hout his con- sent, and detained on board uf a vessel, would be without his remedy in this Court either upon an implied obligation, or for injury done upon the liigh seas, (a) If it were not so there would substantially be no remedy ; the service render- ed by a pilot at the close of navigation in the St. Lawrence, when ice obstructs and snow storms prevail, is one attend- ed with unusual danger, and the interests of the shipowner require that there should be no stint in providing a remu- neration for taking him to sea, in the interest of the ship. If it were otherwise, pilot service at that season might not be easily had. I proceed now to state the grounds of my decision on the act on petition. By the Imperial Act 28 and 29 Vict. cap. 63, intituled " An act to remove doubts as to the validity of colonial laws," it is enacted that " any colonial law re- pugnant to the provisions of any act of Parliament extend- ing to the colony to which such law may relate, or repug- nant to any order or regulation made under the authority of such act of Parliament, or having in the colony the force and effect of such act, shall be read subject to such act, order or regulation, and shall, to the extent of such repug- nancy, be void." Upon this authority I shall give effect to the Dominion Act so far only as it is not in conflict with the clause of the Merchant Shipping Act, which in this case amounts to no more than the difference between the per diem allowance of two dollars, and ten shillings and six pence sterling, which it is quite competent to the promoter to abandon, as he has done by his preference for the Domi- nion Act upon which he has proceeded. I therefore over- rule the act on protest with costs. Blanchet, Pentland and Pelletier, for the Promoter. Andrews, Caron, Andrews and Fitzpatrick, for the Respondent. Farewell. (a) The Friends, 1 S. V. A. R., 118. Ruckers, 4 C. Rob. 76. The Toronto, lb. 170. The 379. 286 CASES IN THE VICE-ADMIRALTY COURT European. Friday, l\ih November, 1881. S.S. EUEOPEAN.— Simpson. Where a Bieam vessel overtook and ooUided with a barqae, in a very dense fog. Held : — 1. That her speed, between seven and eight knots, was, under the oiroumstanoes, excessive, and that she was therefore to blame ; and 2. That the steamer, not having become visible from the barque, until within a distance of one hundred and twenty feet, or thereabouts, although her whistle had been heard for some time, the barque's people were not in fault in failing to show a stern light, as prescribed in the Bailing regulations. The rule, as to when a stern light is to be exhibited, explained. Judgment— FoTi. Q. 0. Stuart This is a suit for damages consequent upon a collision, — the defence, a breach of the sailing regulations. The Norwegian barque Gefion, of 440 tons, left the port of Arendel, in Norway, on the 19th of April last, on a voyage to St. Thomas, in the River St. Lawrence, and on the 14th of June, when about 40 miles to the south of Burgeo, Newfoundland, at about two o'clock in the morn- ing, she was on the port tack in a dense fog, steering by the wind, a light breeze from W. S. W., heading about N. W. half N., and going through the water at between 3 and 4 knots. Her starboard watch was on deck, she had a look-out on the top gallant forecastle, and her fog horn was sounded at regular intervals. At the same time the Euro- pean, a steamship of 1774 tons, from Liverpool, bound for Quebec, was upon a similar course. She sounded her fog whistle every two minutes ; a sound from right ahead was heard, her engines were stopped, the sails of the Gefion were seen from her under her bow, and the engines were reversed full speed astern, the two vessels being then > near to avoid a collision. The stem of the Europaan struck the DURT aarqae, in a very , was, under the 9 to blame ; and rom the barque, i, or thereabouts, > barcfue'a people jresoribed in the I explained. a colliaion, — , left the port ril last, on a rence, and on the south of in the morn- ?, steering by .eading about at between 3 ok, she had a fog horn was tne the Euro- « ^««««'« ^^ tow collided with her ; 1. That the steamship was in fault for not keeping out of the way and the t.w to have been to bla.,e for not keeping hfr course ; an'r* party "" "^""^'^ ^' "^"^"^ '^'"^'^' ^"*'"'"* *=««*« ^ "^her Judgment.— Fon. G. OJdll Stuart. The cases of the Lombard and the Farewell are two Lombard claims for damages. The first is that of Messrs. Maguire, of Farew"",. Quebec, owners of the barkentine FareAvell of 317 tons ' agamst the Lombard, a steamship of 1132 tons registered tonnage; and the second is a counter claim by J. H. Davidson of Newcastle, the owner of the Lombard, against the Fare^ weU. They originate from a collision between these vessels m that part of the channel in Lake St. Peter which is about opposite River du Loup, below Sorel. There the channel ot the St. Lawrence, according to a notice by the Montreal iiarbour Commissioners, has but 280 feet in breadth, but is spoken of as 300 feet. The Farewell is of a length of 136 feet and she drew 9 feet 9 inches of water. Another vessel the Louis A. Martinez, is a bark considerably longer of be- Uveen five and six hundred tons, drawing 17 feet°6 inches On the morning of the 17th November, 1880, these two vessels left Sorel, below Montreal, from whence they had reached Sorel the previous evening destined for sea, passing by the Port of Quebec. They were in tow of the tua T i90 CASES IN THE VICE-ADMIUALTY COURT LOMHABD. Faukwkll. Oliallonger, a steam vessel of about 75 tons, f)f medium strength, but her horse-power iloes not uj)ji('ar. These vessels were fastened by separate tow ropes to the same post about midships of tlie tug. The Farewell was towed ahead of the Louis A. Mixrtine/ by her tow to\)G, in length somewhat over thirty fathoms, and the Louis A. Martinez by her's about 20 or 25 feet longer, astern of the Farewell, all three, tug and tow, in a line. The wind was fair and strong from the S.W., and said to be half a gale. The sails carried by the Farewell were her lower and upj)er topsails, and the Louis A. Martinez was under her u)»per and hnser fore topsails and fore topgallant sail. The tow lines were loose and occasionally in the water. The Lombard }iad left Sorel some time after these vessels, and had been gradually overtaking them. After passing a curve in the channel, and when within a quarter of a mile of them, she intimated her intention to pass by blowing her whistle for them to keep to the north side of it, and they did so. The speed of the tug and tow was about six knots and that of the Lombard a mile or so faster. Wl)en the Lombard had come nearly abreast of the Farewell, and when they were about 150 feet apart, the Louis A. Martinez drove upon the Farewell, struck the port side of her taffrail and sent her over upon the Lombard. The latter, to escape collision, ordered her engines full speed ahead, but too late. The anchor of the Farewell came into contact with the Lombard at about 25 feet from her taffrail, which prevented her steering upon her port helm, and caused her to run aground upon the nort hbank of the channel, about 400 feet below the place of collision. Tlie sailing rules by which these cases ave to be governed are the twentieth and the twenty-second. The twentieth is, that, " notwithstanding anything contained in any preceding article, every ship, whether a sailing ship or a steamship, overtaking any other, shall keep out of the way of the over- taken sliip ;" and the twenty-second is, that " where, by the above rules, one of two ships is to keep out of the way, the COURT tons, of medium ai){i(>ar. Thosu ojiea to the same re well W118 towed •w ro[)e, in leiif^Ui .ouis A. Martinez 1 f)f the Farewell, vind was fair and a f,'ale. Tlie sails lul u])j)er topsails, • u|iper and lower le tow lines were Lombard It ad left id been gradually e in the cliannel, em, she intimated libtle for them to io. The speed of at of the Lombard had come nearly 2re about 150 feet on the Farewell, int her over upon ision, ordered her riie anchor of the ibard at about 25 ler steering upon ground upon the ' feet below the ,ve to be governed The twentieth is, I in any preceding p or a steamship, ! way of the over- it " where, by the it of the way, the FOU LOWER CANADA. 291 other shall keep her course." The case of the Lombard is Lombabo. tfl be tested by the the twentieth, und that against the Fauewkm.. Farewell by the twenty-second rule. " It appears that about ten minutes would have brought these vessels, at tlie rate the tug and tow were moving, to a greater breadth of channel, where they could have been passed with safety, and it rested with the pilot of the Lorn- bard to try tlie experiment to pass or wait. The tug and tow in length were more that the lireadth of the channel, and the derangement of their line in any particular would obviously endanger the Lombard, or the Lombard them, in passing. Tlie Farewell was steering badly, and the pil.^t of the Louis A. Martinez was lieard from the Lombard several times reproaching the pilot of the Farewell for not minding his helm, and prudence should perhaps then have dictated a retrograde movement to the Lombard. The Louis A. Martinez was but twenty-five feet astern of the Farewell^ the latter steering under her bows. The tow-ropes were slack and the vessels in tow were subjected to the counter influences of the tow-ropes and their sails. AU this wa» visible from the Lombard. Still she went on and assumed the risk of passing. She faded by the length of about twenty-five feet, and the consequences of her imprudence must be felt by her under the twentieth rule. On a former occasion I acted upon the principle, " If it be practicable to pursue a course which is safe, and you follow so closely upon the track of another vessel that mischief may ensue, you are bound to adopt the safe course." This is the princi- ple which is always acted on in cases of injury done at sea, (a) and in the case of the Betavier, Dr. Lushington said : "A steamer going at a slow rate, even at one knot " and a half an hour, if she sees anything in her way which " if she prosecutes her voyage without stopping she will be " likely to destroy or put life in danger, is bound not merely " to diminish her rate but to stop altogether." (h) {n) Quebec, L.R., vol. 2, p. I. Infra, p. 87. (*) Spink's A. and E.R., 382. C^t^ES IN THE VICi;- ADMIRALTY COUllT LnMBARD. PAREWEt.r,. Now, with rpfpwnce to tho counter claim of tho Loinlmrd against the Farewell. It was equally imperative upon her under the twenty-second rule to keep her course as it was upon tho L"Tnbard to keep out of liiir w.iy. This rule was especially m. 'i' for the purpose of preventinj^ the vessel charged with the duty of avoiding the other, in this instance the Lombard, from l)eing embarrassed by a change of course on the part of the other, in the present cases of the tug and tow, in the eye of the law, but one ship (a). The Farewell, comparatively a very light vi ssel, was injudiciously placed in the line of tow in front of a heavy one, a faster sailer under tho pressure of a higli wind. Moreover, she could not use her starboard helm, which was necessary t(j keep her on her course and from runUing across tlie channel. The reason why, is repeatedly stated by the pilot of the Louis A. Martinez, that by starboarding she would have ran into his vessel, which accounts for his so often railing upon the pilot of the Farewell to mind his helm, and that was for his own safety. With his helm iuilf-paraly/ed it is jjlaiu that an accident might from one moment to another occur. Tlie propelling fon'c of the wind upon the sails sent the tow over their tow-ropes and so weakened the tractive power of the tug as to deprive it of all control. Considering the proximity of the Louis A. Martinez to the Farewell, a collision between them was by no means improbable, under their pressure of sail. That the blow of the former upon the port end of the tati'rail of the latter was one of considerable violence admits of no doubt. It rendered the helm useless, and the man in charge was compelled to leave it. Either at the moment of this collision, or shortly before, the Farewell was on her port helm and the blow of tho 1 ouis A. .^.lartinez upon the port quarter of the Farewell iin.le!' " ^ 'lused a v ■ v rapid transit across the channel, s/ much so uiat there was not time to foresee the impending collision, as the pilot of the Farewell and the master of the Lombard were exchang- ing salutations almost at the moment it took place. As well (a) Maraden Coll. at eea, p. 202. UT till! Loinliard ivi' upon her i'80 as it was his rule wns f^ the vessel this instance ige of course :' the tu^' anil he Farewell, uusly placed faster aailer ir, she CKuld r to keep her mnel. The the Louis A. ran into his ig upon the t was f(jr his is plain tliat occur. The :he tow over lower of the le proximity ion between ' pressure of :'t end of the )le violence ess, and the -ither at the 'are well was artiuez upon used a v ■ v it there was the pilot of ire exchaug- !e. As well FOR LOWFI! CANADA. the master as the chief offiwr have emli :nven their opinion as to the cause of collision. That of the master is, that it was owing to the Farewell sheering imderneath the bows of the Louis A. Martinez, to her having l„)r topsail 8(it, to the Louis A. Martinez being the fastest sailer and overrun- iug her hawser, and also to the pilot of the Farewell n..t minding his helm. The ojanion of the chief otlicer does not materially dilfer. He has attributed it to the tug being too light for keeping her tow under command, to the sheering of the Farewell under the bows of the vessel astern, and to her being upon a port helm und its ilesertion by the man in charge of it. On the other hand, the Farewell has met these clmrgea by d statement that the speed of tlu; Lom])ard was too great, and that her wave or swell drove the Louis A. Martinez upon her, and that she was thereby rendered unmanageable. I cannot see how this could be, as the speed of the Lombard was reduced about one-half before she attempted to puss, and her progress was but about a mile or so faster than that of the tug and tow, nor does it appear to me that the wave or suction, as it has been also termed, could have had any influence on the Louis A. Martinez, upon a parallel course 150 feet distant. In truth it would have been better for the Farewell had the Lombard's rate been faster, as but a very little more would have carried her clear of the collision. As it was, the Lombard was in a dilemma, (in what is familiarly termed a tight place,) she could not recede or advance without danger at the moment the Farewell took the sheer. I wiU only add that a strict (jbservance of the sailing rules, alone will pre- vent accidents to life and property upon the many narrow passes in the channels of the upper St. Lawrence. On this occasion the collision originated from the Farewell placing herself in a false and dangerous position, only twenty-five feet in front of a faster sailer than herself. It cannot be permitted that a light tug should dangle at the end of two ropes, with vessels at their other ends, sailing at cross pur- LOMRARI' Farkhf.li. 294 CASES IN THE VICE-ADMIRALTY COUUT Lombard. Farewell poses upon a breadth of channel much less than their length. The view I have taken of these cases quite accords with that of the nautical assessors, whose opinions are to be found in the following ([uestions and answers : Question. — Was there risk of collision when the Lom- bard in overtaking the tug Challenger and her tow attempted to pass them, considering the breadth of the channel and their position at the time ? Answer. — There was. Question. — Could tlie Lombard, after the Farewell was struck by the Louis A. Martinez, have kept out of the way of the Farewell ? Aiiswer. — The time was too short. Question. — Was the Lombard to blame for the collision ? Answer. — The Lombaixl should have seen that the small tug liad not sufficient control over the tow to prevent tlieir sheering about, and in this particular the Lombard was to blame. Question. — Did the Farewell by any actof heroilicers and crew contribute to the collision, or are they in any way to blame for it ? Answer. — She was to blame in deviating from her course. E. D. Ashe, Commander R. N. F. GouuDEAU, Harbor Master. Per Curiam: — There having been mutual fault, the decree is, that the damages be equally divided under tlie old rule recently revived by an Act of the Dominion Turlia- ment, and that the parties respectively pay their own costs. Eeference as usual, (a) Andrews, Q.C., for the steamer. Jules Larue, for the barque. (()) Tho sixth section of the linion arising from iioii-ol)scrvauoe Dominion Stiitute, itl Vict. cap. of tho rules of nnvijfHtiou pre- 68, provided that in cases of col- scribed by the Statute, the owner CUT !ss than their 3 accords with jns are to be I : hen the Loin- aiid her tow ircadth of the Farewell was ut of the way ' the collision ? tliatthe small i prevent their jiubard was to leroificorsand in any way to ing from her mkr R. N. or Master. ual fault, the i under tlie old minion Tarlia- huir own costs. FOR LOWER CANADA. of tho vessel or vessels by which such rules wore infringed ulunild not be entitled to rercive amj com- pensatwn whnterer, thus virtually, if not expressly, putting an end in a largo number of oases, to the Admiralty principle of the eijual division of the damages, in the event of common fault. Tho Dominion Act, 43 Vict. cap. 29 re- stores tho former law. When the Judicature Act for England was introduced, in 1873, it was proposed by tho Lord Chancellor (Lord Selbourno), that the rule of common law, where it was shown that tho plaintiff had contributed U) the injury, should in all cases prevail, and the pro- posed alteration was adopted in the House of Lords. In the Com- mons' Committee, however, the Admiralty rule was restored, with tho concurrence of tho Attorney- General, and of all the legal mem- bers of the House, and it thus, after a somewhat narrow escape remains a principle of tho existing Maritime Law. {llama rd Pari. Deb. ^rd Serien, Vol. 2l(), pp. 1800, 1801.) This result was in no small measure due to the ex- ertions of Mr. H. C. Rothery, then Registrar of the High Court of Admiralty, who in an admirable letter to the Chancellor, stated and defended tho antiquity and equity of tho ancient maritime rule. {Long mam A Co. 1873.) It has been suggested that the Mosaic law lays down, in one case at least, that, namely, of collision, biitwuen beasts, not ships, very similar principles. " And if one man's ox hurts " another's that he die ; then " shall they sell the livo ox, and " diride the money of it ; and the " d-end ox aUo .ihall they diride. " Or if it be known that the ox " hath used to push in time past, "ill 1 . ' \ 1 hath not kept " him in ; ho shall surely pay ox " for ox, and the doad shall bo his '* own." (Uxodus, Ch. XXI. V. 35-36.) Without claiming for tho rulo such a remote descent, there can bo no doubt of its great antiquity,, and of tho fact that it has been adopted by almost all tho civilized nations of the world. " To find the origin of tho rule," says Mr. Rothery, in the letter re- ferred to, " we must go to tho col- lections of Maritime Laws, which date from tho revival of civiliza- tion and commerce in Europe in the 12th, 1 3th and I4th centuries. I refer to tho Consolato del Mare, the Laws of Oleron, tho Ordonuau- co9 of Wisbuy, the Siete Partidas, the Black Book of the Admiralty, tho Jugemens do Damme, and others of the same period. Prora those, it is that the General Mari- time Law of Europe was framed , and it is here that wo shall find the principle of the equal division of damages in certain cases of col- lision, for the first time laid down." 205 LOMBARI:. Farewell. II uou-observanoe navigation pre- tatuti', tho owner 296 CASES IN THE VICE-ADMIEALTY COURT Friday, 28ih April, 1882. BOTHAL.— Brotherton. NELSON.— Glaister. Where a sailing vessel and a steamship were meeting nearly "end on," and the former ported, while the latter starboarded. Held that the former was in fault for not keeping her course, and the latter, for not stopping, or Blackening her speed. Judgment. — Hon. G. 0. Stnart. BoTHAL. Proceedings in cross-actions bring under notice a collision Nelson. of the Nelson, a barque of 288 tons, with the Bothal, a steamship of 1228 tons, at 12.30 a.m. of the 18th Sep- tember last, with the wind N.E. The Nelson on a course S.W. by W. was sailing up the river St. Lawrence, under all plain sail, the Crane Island Light, about two miles distant, bearing W. by S. In her log it is stated, that the ■white light of the Bothal, on her course down the river, was seen about three miles off, bearing about a point and a half on her port bow, then her red light ; and when she had approached to within a mile and a half, the pilot of the Nelson ordered her helm to port. The speed of the Bothal was about ten, and that of the Nelson about five knots ; and, according to the pilot of the Nelson, she continued her course until she was within a quarter of a mile of the Bothal, when the latter starboarded her helm which brought her across the bows of the Nelson and into contact with the end of the jibboom, which struck the Bothal aft the bridge. It further appears from this pilot that the Bothal had been coming " head-on," showing her three lights before the Nelson ported. The collision was in the centre of the channel, about a mile in breadth. The account given by the second mate of the Bothal, who was COUKT TOX. eting nearly "end arded. Held that and the latter, for otice a collision th the Botbal, ' the 18th Sep- NelsoD on a • St. Lawrence, ibout two miles stated, that the 3wn the river, t a point and a i when she had le pilot of the speed of the Nelson about be Nelson, she a quarter of a rded her helm e Nelson and ich struck the rom this pilot ," showing her i collision was breadth. The ithal, who was FOR LOWER CANADA. with the pilot in charge, is, that the lights of the Nelson, when first seen, were about a point and a half on her star- board bow, and when within about two miles from her, the pilot of the Bothal ordered her helm to starboard, and while answering it she lost the green light of the Nelson and saw her red, when the helm was ordered hard-a-star- board, and then came the collision. No satisfactory reason has been given for the Nelson's porting her helm. This change of helm brought her from whatever distance she was at the time from the south side of the channel to the centre of it, where the collision occur- red. To excuse this act, the Bothal has been blamed for not keeping to the starboard side of the fairway or mid- channel under the 31st rule, which so directs when in a nan-ow channel. But this was not a narrow channel, and if it were, it would be no excuse for the Nelson's porting contrary to the 22nd rule, which directs that she should have kept her course. In point of fact, the Nelson ported for no other reason than to aUow the Bothal to pass port to port. It appears that a conversation took place between Mr. Carbray, the agent of the Bothal, and the master of the Nelson at Quebec, when the former said to the latter, " What business had you porting your helm " ? to which, according to Mr. Carbray, the answer was, " I ported my helm to get out of your road, wlien I saw your vessel coming down upon us." It is true that the master has de- nied this statement. If he did speak as stated, he must have had it from hearsay, as he was not on deck before the collision. But the evidence of the second mate of the Nelson leaves no doubt upon the point; he has stated that her helm was ported when the red light of the Bothal was seen, and then she incHned shghtly to the right in order to show her red light perfectly to the Bothal, so that she could pass on the Nelson's port side. The Nelson is therefore in fault, for not complying with the 22nd rule. It by no means follows that the Bothal was not to blame also. By the 18th article of the regulations, every 29^ Bothal. Nelson. 298 CASES IN THE VICE-ADMIRALTY COURT BOTHAL. Nelson. steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed or stop, and reverse if necessary. The weather was clear, the wind moderate, and the tide flood. While the Bothal was steaming at the rate of ten knots and saw the green light of the Nel- son shat out, her red being visible, it was plain that one vessel was crossing the course of the other, and that the two were approaching so as to involve risk of collision. Instead of star! oarding or hard-a-starboarding, had the Bothal slacken .d speed or reversed, or even ported, as anticipated by t^ e Nelson, there would have been no col- lision. Both these vessels being in fault, the decree is that the damages be divided, and that each party defray their own costs. With ordinary prudence and care the Bothal could have kept out of the way of the Nelson, and for not doing so she is to blame. From this judgment, the owners of the Nelson asserted on the 5th of May, an appeal to Her Majesty in Her Privy Council, Williavi Cook, Q.C., and Archibald. Hay Cook, for the baique. Jules Larue and C. A. Pentland, contra. lURT as to involve top, and reverse vind moderate, as steaming at ;ht of the Nel- plain that one nd that the two llision. irding, had the ven ported, as ve been no col- le decree is that ,rty defray their care the Bothal son, and tor not Nelson asserted klajesty in Her ly Cook, for the FOB LOWER CANADA. 299 Friday, IQth May, lcj82. BARCELONA.— Anderson. Upon the liquidation of on account by the Registrar and Mer- chants in a case of collision for damages done by a ship to a wharf : Held; 1. That a claim for consequential damages, not asked for in the libel nor awarded by the decree, cannot be considered by the Re- gistrar and Merchants ; and 2. Tlat if it could, such damages should not be allowed.either under article 1660 of the Civil Code, or by the Maritime law. Queer e, as to jurisdiction. Appeal from an award by the Registrar and Merchants, to Barcelona. whom under interlocutory decree, the assessment of dam- ages had been referred in this matter. Per Curiam — This is a suit for damages arising from the ship Barcelona, striking and breaking into the wharf of Mr. Alford, the owner, and is brought under the Imperial Act of 1861, which confers jurisdiction on the court in respect of claims for damage done by any ship. The charge in the libel is " that the collision and the damages and losses conse- quent thereon are attributable to the negligence of those on board the Barcelona." The decree of the court of the 16th December last, is for the damages demanded, with the usual reference for their hquidation. On the 24th January last, Mr. Alford submitted his claim to the Registrar and Mer- chants ; it amounts to $4857.81, composed of three items, viz. : 1st. For labor and materials, $3793.81 ; 2nd. For stages used in the work and for care of them, 164 ; and 3rd. §1000 for damages said to have been sustained by the St. Lawrence Steam Navigation Company, lessees of Mr. Alford, consequent upon their being deprived of the use of the wharf. The report of the Registrar and Merchants has reduced the demand for labor and materials by ^761.67, viz. : to $3026.20. They have rejected the item of $64 and 300 CASES IN THE VICE-ADMIRALTY COURT Barcelona, have declined to allow the SI 000 as being unliquidated dam- ages, aud because they have doul)ts as to it being included in tlie reference. The claim of $4857.71 by the report thus stands reduced to S3026.20, making in deductions S183 1.61. By an act on petition the accuracy of the report is ques- tioned, and the court has been called on to rectify it by allowing the parts of the claim which have been rejected. The damage done to the wharf was on the 11th October last. Mr. Archer, a builder and contractor, had been ap])lied to by the agent of Mr. Alford to furnish an estimate of the cost to repair the damage, and on the 13th of October he furnished one; it amounted to $2,300. Mr. Simon Peters, a builder and contractor, was applied to by the agent of the ship, also, for an estimate, and on the 14th of October he furnished another amounting to $2,400. These estimates appear to have been based upon exhaustive calculations of the materials and labor required, for which, as respects Mr. Peters, a fee of S20 was charged. No application was made to Mr. Archer to perform the work, but after delay to the 31st of October, it was given to Ilr. Peters by Mr. Bcss^ the agent of Mr. Alford, and the two estimates ignored. The account of Mr. Peters is that now under consideration ; it is $1,393.81 above his estimate, and $1,493.81 above that of Archer. Mr. Peters has given as reasons for the excess of his charges over his estimate, that the work to be done was not all visible, and that the cost was more than he anticipated ; but the evidence of Mr. Simons, surveyor of the Bureau Veritas, and of Mr. Dick, the port warden, is that it was quite possible to see as much as was necessary to make an estimate ; and so says Mr. Archer, who was checked in his calculations by Mr. Simons, and the former has sworn that he would have done the ontire work for $2,300. The objections to the account are the charges for iron bolts and the value of the timber. On the new bolts the reduction is one-half, from 10 to 5 cents, and on the old, welded and renewed, from 5 to 2^, The reduction on the timber, white pine, is from 40 to 20 cents per foot, and for joisting to 30 COURT iliquidated dam- t being included f tlie report thus 3tion3S1831.61. 3 report is ques- to rectify it by- been rejected, le 11 til October lad been ap])lied estimate of the h of October he r. Simon Peters, the agent of the [i of October he These estimates } calculations of as respects Mr. ation was made ter delay to the s by Mr. Bcss^ imates ignored. r consideration ; 1,493.81 above reasons for the the work to be was more than mons, surveyor port warden, is ^as necessary to ho was checked rmer has sworn r S2,300. The f iron bolts and a the reduction )ld, welded and e timber, white r joisting to 30 FOR LOWER CANADA. cents, from 40. These reduce the account by the $767.61. Mr. Simons has fixed the outside value of the timber at 23 cents. Mr. Amos Bowen has said that timber at 15 cents, would have answered, and Mr. Archer was offered timber at 15 cents when he examined the wharf, and his estimate was based on 20 cents ; the iron he was to use was from 4 to 5 cents a pound, and he included the plant. Mr. Tweeddle has sworn that the price charged for the bolts is exorbitant, and their value in his opinion was 4 cents. As respects the stages, they are plant, they are incident to the work and are not allowed. Altogether the reductions amount to $831.61. Mr. Peters is still allowed $462.20 above his own estimate. Mr. Alford in assuming to do this work as if he were the negotiorum gestor of the owners of the Barcelona, was bound to do what a reasonable man would have done for himself under the circumstances. It was his duty, while acting for another, either to take Mr. Archer's estimate, which was in reality a tender, as he has sworn that he would have done the entire work for 82,300, or else to have applied for tenders if not satisfied with Mr. Archer's. I have gone over the evidence with care, and lind the de- ductions of the Eegistrar and Merchants quite in accordance with it. There woidd have been a difficulty with me if the report had been contested, instead of being acquiesced in by the respondents. If it had been contested I certainly would have hesitated in allowing more than the estimate of Mr. Archer. It might have been, that Mr. Archer would Jiave lost money by the contract, but that was his own lookout, and the respondents would have had the benefit. As respects the additional claim for $100 being for damages sustained by the St. Lawrence Steam Navigation Company, lessees of the wharf, it is pretended that Mr. Alford is liable to them for such damages, and that, therefore, he can recover them from the owners of the Barcelona. This claim is for consequential damage, that is, for damages sustained hij the lessees for loss of use of ivharf ; these damages appear to have depended upon the contingency of 101 Barcelona- 302 CASES IN THE VICE-ADMIRALTY COURT Barcelona, the price of coal to be used by the company, and the difference between fall and spring prices in the article, in other words, upon the state of the market in the spring following the collision. In support of the claim, Article 1660 of the Quebec Code has been referred to, by which, for a partial destruction of property, the tenant is allowed a proportionate reduction of the rent ; no doubt it is so, but the same Article expressly provides, that the lessee shall have no claim for damages against the lessor. The St. I^wrence Steam Navigation Company have claimed damages for having been depri id of the use of the wharf, which can arise from no other cause than being hindered in the receiving and disposing of goods and merchandize from off it. There has been no claim for reduction of rent by the lessees, — a very different claim from consequential damages. Such damages are explicitly disallowed by the code upon which the language of the comu ntators is very plain. The law as administered in France before the code existed, is thus stated by Pouthier, Louage, 81 : " II y a differentes " esp^ces de troubles qui peuvent gtre apporttjs de la part " des tiers k la jouissance du conducteur. II y en a qui ne " consiste que dans des voies de faits sans que ceux qui " ont apport^ le trouble pretendent avoir aucun droit dans " I'heritage, on par rapport a I'heritage. Le locateur n'est " pas garant de cette esp^ce de trouble, le fermier n'a d'action " que contre ceux qui I'ont caus^, actionem injuriaruvi." The Louisiana Code (a), as well as ours, is based on the 1722nd Article of the Code Napoleon, the commentators on which state the law under it as given by Pothier. The maritime law is quite in accord with the provisions of our Code, in the matter of consequential damages. In the case of Minon v. tke Steamer Picayune (b), it was held that in cases of collision between ships, in estimating damages, the remote and consequential damages growing out of the supposed loss of profits, is not to be considered, (c) These (a) See Article 2673. (b) Louisiana Am. R., vol. 1.3, p. 664. (c) The Atalaya, Q. L. R., vol. 7, p. 5. Infra, p. 260. COURT rapany, and the in the article, in et in the spring ho claim, Article ■ed to, by which, tenant is allowed loubt it is so, but the lessee shall lessor. The St. claimed damages he wharf, which hindered in the 3handize from off n of rent by the ^uential damages. ly the code upon •3 is very plain, the code existed, II y a differeutes )port(53 de la part II y en a qui ne ,ns que ceux qui aucun droit dans Le locateur n'est irmier n'a d'action '.m injuriariim." , is based on the commentators on Y Pothier. The provisions of our iges. In the case it was held that imating damages, rowing out of the iered. (c) These alaya, Q. L. R., vol. ra. p. 260. FOR LOWER CANADA. damiigos, therefore, not being cliargeable against Mr. Alford he cannot recover them from the Barcelona. I iiave treated tins latter claim as if it were before the court, because it was argued at some length and with con- fidence, and because it is desirable the parties should know that, If prop..rly before the court, it would not have been allowed. Neither the libel nor the decree of the court makes mention of this claim for consequential dama-os It has, therefore, not been adjudicated upon, and of course there could have been no reference for its liquidation. The regis- trar was quite right in not submitting it to the referees "for their opinion. I must add that the first duty of the court is to be assur- ed of Its jurisdiction. If the libel had contained an article assertmg this claim, I should have called the attention of counsel to the question, as to whether the court can accord damages under the Imperial Statute for breach of a contract, made and to be executed, on land, according to the muni- cipal law of the country. Tlie report is confirmed, and as the claim stands dimin- ished by more than a thrd, the costs of reference neces- sarily fall upon the promoter. Judgment wiU therefore be entered for ^3026.20. Bos8^ and Languedoc, for the Promoter. Irvine and Femberton, contra. 30:{ Barcelona 304 CASES IN THE VICE-ADMIRALTY COURT Friday, Uth June, 1882. RED JACKET.— Atkin. Where seamen were Rhipped for a voyage from London to Quebec, and back to the port of London ; held, that the nature of the voyage thus stated, was a sufBcicnt intimation to the mariner of its duration. Ri:i) Jacket. This was a cause of subtraction of wages, civil and mari- time, and came before the court upon a reference made under tlie authority of the Merchant Shipping Act, by the Judge of the Sessions of the Teace, at (Quebec, before whom the original suit for wages was brought. Judgment. — ffon. G. Okill Stuart. Tliis suit is one of several others; it is biought by Wil- liam Kearney, seaman of the Red Jacket, a ship of 2,006 tons, to test the validity of articles signed by him for " a voy- age from London to Quebec and back to the jwrt of Lon- don," the duration of tlie voyage not being stated. It was commenced before the Judge of Sessions at Quebec, and has been by him, under the 19th bcctionof the Merchant Sliip- ping Act, 1854, referred to this court for decision. The suit treats the articles as null, and simply claims a balance of wages as on a voyage from London to Quebec, where the ship now is. The articles have been pleaded as an existing agreement, by an act on protest ; and if this be true the pro- moter cannot recover but must fulfil his engagement. It is contended that as well under the 149th section of the Merchant Shipping Act, 1854, as under that of 1873, the dur- ation of the voyage must be stated on pain of nullity. By the first of these enactments the nature and, as far as prac- ticable, the duration of the intended voyage or engagement are to be indicated ; and, by the second, as a substitute, the maximum period of the voyage and an indication of the IIT FOR LOWER CANADA. 305 idon to Quebec, •e of the voyage of itB duration. vil ami niari- Fereuce made ; Act, by the before whom t. ight by Wil- ihip of 2,006 n for " a voy- iwrt of Lon- ited. It was ebec, and has jrchant Sliip- icision. The ms a balance ic, wliere the 13 an existing true the pro- gemeut. It ection of the .873, the dur- nullity. By 3 far as prac- : engagement iibstitute, the cation of the places or parts of the world, if any, to which the voyage is Red Jacket. not to extend, is sufficient. The 149tli section enacts, that every snch agreement sliall be in a form sanctioned by tlie IJoard of 'irude, and sliall contain the nature, and, as far as practicable, the duration of the intended vr.yage or engagement. The articles of the Red Jacket in jKiint of form are sanctioned by the Board of Trade. 'J'hii form appears to have been adopted by it in 18t;!», and purports to be such as the 149th section already referred to requires. Before stating the voyage of the Red Jacket to be from Jyindon to (Quebec and back to the port of London, there is to be found a printed reference at the foot of the articles in the following terms : " Here the voyage is to be described and the places named at which the ship is to touch, or, if that cannot be done, the general nature and probable length of the voyage is to be stated." The articles as they stand"have thus the sanction of the Board of Trade ; the voyage is given, and as there were no intermediate places to touch at, none could be stated, and this would seem to preclude any reference to the alternative, a statement of the probable length of the voyage from London to Quebec and back. Two cases decided by this Court have been referred to by the promoters' counsel in support of this suit, — one the Varuna, decided by Mr. Black (a), and the other the Latona (b) decided by me. The first did not come under the 149th section because it was not in force, and the question detemined was one of departure from the voyage stated in the articles ; so it was in the case of the Latona a departure also, and although the articles in these cases were declared void it was not, in either, upon the question of duration. The intention of the Imperial Legislature in declaring that the nature, and, as far as practicable, the duration of the voyage should be contained in the articles, is plain enougli ; it was no more than to give the mariner a fair intimation of the (a) S. V. A. R., Vol. 1, p. 357. (*) Ibid, Vol. 2, p, 203. U (c) The Westmoreland, 1 W. Rob. 221. I At*'' 306 CASKS IN THK VICE-ADMIHALTY VOVHT IIkdJackkt. value of the service and of its length, and the question sim- ply is, was the statement of a voyage from Loudon to Que- bec, and back again to the port of London, u fair intimation to the nmriners of the Ked Jacket of its niilure and duration ? Before the enactment of the 149th section, .seamen were in- duced to sign articles to take them to any part of tiie world, for an indefinite j)eriod, and of such a nature as to keep them in ignorance as to when or whether they would ever return, to their native country. Courts of .luHtice have to discover the true intention of the law, and whenever tiiat intention can be indubitably ascertained, tliey are bound to give it effect, and the real intention too, when colh'cted with certainty, will always in statutes prevail over the literal use of the terms. For "every statute ought to be expounded not according to the letter, but accoriliug to the meaning, qui haeret in litera haeret in curtice." (a) In specifying a voyage as from one place to another, touching at fixed, iutermeduite ])orts, the Board of Trade has given effect to the 149th section, and, after an exi)erience ( f thir- teen years, an Admiralty Court will not lightly disturlj it by setting at liberty the many ships' crews now held under it. The statement of a voyage from London to (Quebec and back to the port of London, conveys along witli it a knowledge of its duration, viz. : just so long as it will take to go and return with an intercliauge of cargo. Tlie seamen would not be a whit the wiser if the length of the voyage were said not to exceed six weeks or six years, as the nature of the voyage in such a case would control the term so stated. In the case of the American Union, which was determined upon the 149th section, it was said " that the Merchant Shipping Act, 1854, requires that the ship's articles should set forth the nature, and, as far as practicable, the duration of the intended voyage or engagement ; and, therefore, the time specified in articles is only to be viewed as a particular of the intended voyage, and the substance of the articles being the performance of tiie voyage therein described, whe- (fl) 2 Dwarris on Stat. 690. OUUT qiu'stion sim- ,oiidon to Que- fuir intinmtion >. ami ilumtiun? 'uiiit'ii wuiu in- vt of the World, ;uro as to keep icy vmild ever liistict! have to wluiievnr tliiit L'y are bound to wheu collected rcvail over the ite onji;ht to be iccording to the rtice." (a) In lother, touching Viide has given [tcrienco ( f thir- tly di.sturb it by V held under it. J ue bee and back it a knowledge . take to go and ! seamen would oyage were said le nature of the a so stated. In was determined t the Merchant 3 articles should Ae, the duration d, therefore, the d as a particular e of the articles described, whe- FOR LOWER CANADA. 307 thoror no tho assigned period fall .hort or exceed, the actual REn-TACKKr tune named, the voyagu, if at all uii(l..rtuken by the seamen " must be car- fully carried out and completi-d by them." (a) These obs-'vations are particularly applicable iti a case where the voyj -o is clearly defined, as in the present case, although, in other cases, sucii as that of the Latc.na, where the voyage was so ambiguously stati-d that the seaman might have been carried to any part of the known world, they would not apply. Whenever the intention which the makers of a statute entertained can be discovered, it ought to be foUowed in its construction in a course consonant to reason and discre- tion. (6) The intention of the Legislature was to enable the mariner to know the nature ol the voyage, and, as far as practicable, its duration; audi, does appear to me that it would be inconsistent witli reason and common sense, in this case, to say, that the description of the voyage' as stated did not convey to him, as far as practicable, its nature, and a knowledge of its probable duration. The act on protest is maintained, and the suit is dismissed. M. A. Hearn, Q.C.. and C. A. Pmtland, for the seaman. E. R. Alleyn and A. H. Cook, for the ship. (fl) 5 (Iriah) Jurist N. S. 380. (A) o Dw. oa Stat 60a 308 CASES IN THE VICE-ADMIUALTY COURT FniJay, 15th SejJtemher, 1882. PROGRESS.— Bernieu. A steam vessel, while on fire in the Lower St. Lawrence, derelict, was partially saved by a steam tuff, which towed her to tlic shdrc, where she was beached, and afterwards sold by decree. Held, that the salvors were entitled to one-third of the proceeds of sale and their costs, and the award distributed among them. PRoonE88. Salvage services, under the circumstances stated in the "^ '^"^ following judgment. Per CaHam : — Three suits for salvage have been brought against the steam vessel Progress, which be- longt the St. La\vreuce Steam Navigation Company, by whom, as stated by the promoters, she had been abandoned while on fire. The first suit is by John Wilson, owner of the tug Resolute, of 139 tons; the second, by James Keiley, her master, and the third by Honord Dassault, her pilot, to which last are parties the second pilot, two engineers and seven others, who worked on board of her. The own- ers of the Progress have denied that salvage services were performed ; they have averred that there was no abandonment, tliat her crew had left her but temporarily, that the Resolute had refused help in proper time, and that the promoters had incurred no danger or risk. The evidence establishes that on the evening of the 17th of May last, at about nine o'clock, there was seen from the Resolute, then alongside another vessel between the Brandy Pots and White Island, a vessel on fire, which was supposed to be the Progress, about nine miles distant. The Resolute soon after went to and reached her near the west end of Green Island and passed at some distance from her stern. The master then perceived that the burning vessel was the Progress, and that there was no one on URT jawrence, derelict, hor to the Khorc, ecree. Held, thiit I of aale and their es stated in the ge have been i33, which be- in Company, by )een abandoned '^ilson, owner of •nd, by James e Dussault, her ;, two engineers ler. The own- ilvage services there was no lit temporarily, jper time, and r or risk. The )f the 17th of v&a seen from jl between the fire, which was miles distant. 3d her near the e distance from at the burning vas no one on FOR LOWER CANADA. board of her. After sounding the wliistle of the Resolute there were seen two boats, which, it was ascertained, con- tamed the master and crew of the Progress, then about a thn'd of a mile from the shore of Green Island. They were taken on board, and tlie master of the Progress, requested tlie master of the Kesolute to beach the former on Green Island ; but after consultation witli the pilot of the Re- solute the request was declined from the fear of fire and the dangerous nature of the place. The Resolute then returned to River du Loup, the neighborhood of which she had left, and landed the master and crew of the Progress there. They did not return to their vessel, nor do they ap- pear to have intimated any intention of doing so, but after- wards took their dei)arture for Quebec. Towards the following morning the master of the Re- solute from River du Loup observed that the flames from the Progress were diminishing, and about daybreak he returned to her. She had floated about a mile higher up the river than where she was when lie left her. The fire was now confined to her hold. The Resolute took her in tow and arrived at River du Loup at about 8.30 the same morning. She was there allowed to settle upon the ground with a receding tide upon the east, but at high tide she was removed, to the west side of the wharf, and there she sank. The time occupied in the salvage services does not appear to have exceeded seven hours. The wind and weather was propitious, and as the fire was confined to the hold of the burning vessel there does not ajipear to have been danger from it. Still, had it not been fur the Resolute, the Progress would have been a total loss. The parties interes- ted in these suits unfortunately have not agreed upon the value of the vessel as she now lies. A decree of appraise- ment was consequently issued from the court, and com- petent appraisers have valued her at $6,000, with a recom- mendation that she should be brought to Quebec where she would bring a better price. This again was not agreed to, and she was sold as she lay sunk at the much smaUer 300 Progrkss. 310 CASES IN THE VICE- ADMIRALTY COURT Progress, figure of $3,000. Upon the best consideration I can ' -^-""-^ givg to the case, I am of opinion that one-third of this sum, $1,000, is a fitting reward for the salvage services. Three- fifths of this, $600, will go to Mr. Wilson, the owner of the Kesolute ; $120 will be the portion of her master, who acted with judgment and discretion ; the pilot will receive S50, the second pilot S30, each engineer, there being two, will receive $30, and the balance will be divided among the remaining promoters, with costs in each case. W. and A . H. Cook, for John Wilson. Hearn, for the other Promoters. Andrews, Car on, Andrews and Pentland, for the Company. OURT deration I can rd of this sum, irvices. Three- e owner of the ister, who acted ill receive S50, being two, will ided among the 36. tland, for the FOR LOWER CANADA. 3U Friday, 13th October, 1882. BARCELONA.— Anderson. VICE-ADMIRALTY COUKT ACT, 1863.-JUBI8DICTION .-LESSEE. Where damage was done by a ship to a wharf ; held, that the Vice- Admiralty Court Act, 1863, conferring jurisdiction on Vice- Admiralty Courts, where damage was done by any ship, does not extend to award- ing consequential damages occasioned to the traffic of a lessee. Per Curiam. — This is a second suit against the ship Bahcelona. Barcelona, arising out of a collision with a wharf, at the City of Quebec. In the first suit, Mr. Alford, the pro- prietor, has recovered in this court a sum of $3,026.20 for damages done to his property, and now, his lessees, the St. Lawrence Steam Navigation Company, holding the wharf under a pending lease for five years, at a rental of 82,400, claim damages consequent upon the collision for not having had the use of the wharf in part, during the repairs, and the winter ending at open navigation of the present year. A plea has been filed, in which it is alleged that the subject matter of this suit was determined in that of Alford V. the Barcelona. This was specially objected to by the promoters, and on the preliminary hearing judgment was reserved, and the case has proceeded to, and been heard on, the merits. But an objection to the jurisdiction of the court suggests itself, although there is no exception by which it has been pleaded. The Vice-Admiralty Courts Act, 1863, in its tenth sec- tion, confers upon courts of Vice-Admiralty jurisdiction in respect of damage done I y any ship. The court has akeady had occasion to decide cases under this provision, as in the matter of this same vessel at the suit of Mr. Alford, 312 CASES IN THE VICE-ADMIEALTY COURT Barcelona, already referred to, and also in the case of the Czar, (a) In these cases damages were awarded to the parties interested, the owners of the property damaged, but they were the direct and immediate consequence of the collision. The claim in this suit is not for damage done by the ship to property, and it is not for any damage occasioned at the time of the collision, but for remote and consequential damages arising from disturbance in the enjoyment of a five years' lease. If damage could be allowed for loss of business during the period now demanded, from the 11th of October to the ensuing month of July, when the Barce- lona was arrested the second time, a period of eight months, she might be kept under a lie7i for damages during the five years' lease. In cases of ordinary collisions and detention the maritime law does not recognize damages of this nature. It confines the claim to actual damage sus- tained at the time and place of injury, and does not allow profits which might probably have been realized, if the act complained of had not occurred. The term " damage " in the singular, used by the Imperial Statute, would seem to be in accordance with the law as it now stands, with reference to collision of ships, and restrictive of the injury to time and place. An addition to the jurisdiction of Vice-Admiralty courts is made by the act, and a statute creating a new jurisdiction ought to be construed strictly, and the jurisdiction of the superior courts not ousted, but by express words or necessary implication, (b) By article 1660 of our Code, the St. Lawrence Steam Navi- gation Company, the promoters, would seem to have their remedy against Mr. Alford, their lessor, for a reduction of rent proportionate to their own enjoyment, and with the jurisdiction of the superior courts in this particular, I can- not interfere. The defendants have not taken exception to the jurisdic- (a) Th^ Barcelona, 8. Q. L, B., (J) Dwarris on Statutes, vol. 2, p. 193. TheCzar, L.C.J.,vol. 19, p.751. 10 Rep. 75. St.558. The p. 197 Ante, p. 9. Atalaya, 712. Infra, p. 260. URT ! Czar, (a) In ties interested, they were the jllision. The y the ship to sasioned at the consequential ijoyment of a ed for loss of from the 11th len the Barce- eight months, es during the collisions and se damages of 1 damage sus- does not allow ealized, if the rm " damage " e, would seem r stands, with ! of the injury urisdiction of and a statute itrued strictly, s not ousted, tion. (b) By Steam Navi- to have their a reduction of and with the ticular, I can- the jurisdic- Statutes, vol. 2, 3. St. 658. The fra, p. 260. FOR LOWER CANADA. 313 tion, and, as a necessary consequence, they cannot recover Barcelona. costs, without which this suit is dismissed, Andrews, Caron, Andrews and Pentland, for Pro- moters. limine and Pemberton, for Defendants. 3U CASES IN THE VICE-ADMIRALTY COURT Saturday, 9th December, 1882. SS. MONICA.— Thacker. Where a flailing vessel deviated from her course contrary to the sail- ing rules, and came into collision with a steamer which might have otherwise avoided her, each held to be in fault and the damages divided. Whore a steamer is charged with having omitted to do something which ought to have been done, proof of three things is required : — first, that it was clearly in the power of the ateamer to have done, the thing charged to have been omitted ; secondly, that if done it would in all probability have prevented the collision ; and, thirdly, that it was such an act as would havn occurred to any officer of competent skill and experience in command of the steamer. Judgment. — Hon. 0. 0. Stuart. Monica. Five suits have been brought against the steamship Monica, 1,312 tons, for damages caused by a collision with the schooner Marie Marthe, of 62 tons, when the former, bound from Pictou with a cargo of coal for Montreal, col- lided with the latter, bound for St. Pierre de Miquelon with a cargo of flour and other provisions. It occurred off Basque Island at about eleven on the night of the 9th of June last, when the weather was clear and where the chan- nel is eight miles broad. The result was the sinking of the schooner, which was so much injured as not to be worth repairs, and damage to her cargo. The first suit is that of the owners of the schooner, and the others are those of Messrs. Hossack, Woods and Co., Lemesurier and Sons, Eenaud and Co., and Joseph Whitehead and another, owners of part of her cargo. The complaint of the promoters in these suits is, that while the Marie Marthe was on a course N.E. the steamship did not keep out of her way, which is met by the defence that the schooner did not keep her course but changed it on a starboard helm and thereby caused the coUision. The way CRT FOR LOWER CANADA. 315 trary to the sail- liich might have damageB divided, ■o do Romethlng J8 is required : — XI have done, the if done it would I, thirdly, that it cer of competent he steamship collision with in the former, Montreal, col- de Miquelon It occuiTed off ; of the 9th of here the chan- sinking of the t to be worth suit is that of 1 are those of rier and Sons, and another, i suits is, that . the steamship le defence that lauged it on a :on. The way in which the collision occurred was, by the round of the port bow of the steamship, colliding with the round of the star- boanl bow of the schooner, A large hole was made in the bow of the latter. She became water-logged and in that state was towed by the Monica a distance of twenty-five miles and sank near a wharf at Iliver du Loup. The crew of the schooner were in number five, Thomas Trembhiy and Clovis Trerablay, the owners, the first named being master, Xavier Bouchard, mate, a seaman and a cook. The only persons on her deck up to the moment of the col- lision were Clovis Treniblay at the wheel and Xavier Bouchard, who acted as a look-out, and upon their testimony the cases of the promoters principally rest. According to them, the schooner was on her course N.E., her speed between five and six knots, when a white light, supposed by them to be the light of a pilot schooner, but which was after"ards ascertained to be that of the Monica, at a dis- tance of about six miles, appeared about two points on their port bow. That it approached the schooner rapidly, and, when within a mile or two, it passed from north to south and crossed her. About fifteen minutes after, all at once, the steamer's red lights appeared at about a distance of 150 feet, when Clovis Tremblay cried out " My God, it is a steamer, she will cut us in two." Bouchard then called out to him " luff," which was attempted without effect as the steamer was then, as they say, about fifteen feet distant. These witnesses are persistent in their statement that the schooner never deviated from her N.E. course until then, and they positively state that the look-out from the schooner was continuous, and that they did not, at any time, see the steamship's lights, red or green, before the red light ap- peared 150 feet distant To meet this testimony there is that of the master, chief officer, pilot and engineer of the Monica, all of whom, except the e^ igineer, were on the bridge of the steamship, and that A the look-out, who was on the forecastle. From this it would appear that the speed of the steamship was about eight knots Monica. 316 CASES IN THE VICE-ADMIRALTY COURT Monica. and a half. That while on a course S.W. by W. the schooner's red light was seen about a point on her port bow, about four miles off, that the steamer's helm was then ported, and after- wards the schooner's two lights were seen ; and it was ported a second time. The steamer was then put ahead at full speed, and so continued until the red light of the schooner was shut out and her green appeared ; then the engines were reversed full speed astern, which reduced her headway to about three knots, when the vessels came into collision in the way which has been stated. This testimony is positive that the schooner must have starboarded her helm, first, when she showed her two lights; and, secondly, when she shut out her red and showed her green light. The pilot of the steamship has sworn as follows : — " We stopped and re- versed when the schooner shut her red light and showed only her green ; " and being asked " If the Monica had stopped ani har engines reversed full speed astern when the two lights of thj schooner were first seen what would have been the result ? " he answered that he did not know ; and being interrogated ; " Assuming yon saw the gi-een light of a sailing vessel about a point and a-half or two points off your port bow, how would you steer your steamer to avoid a collision ? " he has answered " I would order the steamer's helm to be starboarded." From these statements the two questions at issue arise : — 1. Did the schooner deviate from her course by star- boarding her helm ? and, 2. Was it in the power of the steamship to avoid her ? That the Marie Martha did deviate from her N.E. course by starboarding her helm is clear from the statements of the persons on board the steamship. It is quite true that Clovis Bouchard and Tremblay deny that she did so. But their account is quite unreliable, because their statement as to the course of the steamship could not have produced the collision in the way they admit, that is her port bow coming into con- tact with that of the schooner at the fore-rigging. They have evidently not kept a proper look-out, for if they had, lURT FOR LOWER CANADA. 317 , the schooner's )ow, about four rted, andafter- d it was ported id at full speed, Doner was shut 1 were reversed I way to about sion in the way )sitive that tlie first, when she :ien she shut he pilot of the topped and re- lit and showed le Monica had i astern when in what would did not know ; saw the gi'een a-half or two r your steamer ould order the at issue arise : ourse by star- power of the er N.E. course tements of the rue that Clovis !0. But their sment as to the }d the collision ning into con- igging. They or if they had, th.;> would not have told so improbable a story, and if in ow particular their statement is at variance with tlie truth, it is not unfair to presume th- it is so in another, as in the matter of starboarding, of which there is such positive tes'iniouy against them. I have, therefore, no hesitation in coming to the conclusion that the Marie Marthe did star- board her helm, and tliat her doing so led U) the collision. It remains to be considered whether the steamship is to blame for not having kept out of the way of the schooner. It was said by the Privy Council in a modern aise (a) " It " is undoubtedly true, in cases of collision between a sailing " ship and a oteamer, that, although the sailing ship may be " found to have been guilty of misconduct, or not to have " observed the sailing regulations, yet the steamer will be held " culpable if it appears that it was in her power to have " avoided the collision. It cannot be too much insisted on that " it is the duty of a steamer when there is risk of collision, " whatsoever may be the conduct of the sailing vessel, to do " everything in her power that can be done consistently with " her own safety in orderto avoid a collision." The Monica and the Marie Marthe were approaching nearly end on, when the latter was seen from the former to be starboarding her helm. For this there is the testimony of the master of the ste^m- shij), that when the schooner shewed her two lights she was heading about N.E. by E., while the steamship was head- ing S.W. by W. half W. Was it in the power of the steamship to have kept out of her way at this moment ? Three courses were open to her, 1, To continue on her port helm ; 2. to starboard, or, 3,, abate her speed by reversing the engines full speed astern. Uncertainty attended either of the two lirst courses : the first because the schooner was starboarding, and how far she would go upon that helm was by no means certain, and as respects the second, there was no certainty that she would go back to the course she was leaving. The third course would seem to have been unexceptionable, because there appears to have been time to {a) The City of Antwerp, L. R. 2, P.O. 25. Monica. 318 CASES IN THK VICE-ADMIRALTV COURT Monica. adopt it successfully. The master of the Monica has said that sternway could be put on the steaniahii) from full speed ahead within barely half a mile, which was about the distance the vessels were apart when the schooner shewed her two lights. Had tliis course been followed it is for the nautical assessors to say what, in their opinion, would have been the result. Then there is an ulterior question to be answered. Was it proper after the schooner's red light was shut out and the green light of the schooner appeared, for the steamship to go off upon a hard-a-port helm while the schooner was fast coming round upon a starboard helm ? I shall put this case in the way tliat the case before the Privy Council on an appeal already referred was considered. " The material inquiry arises whether anything was done •' by the steamer that ought not to have been done, or " whether anything was omitted to be done that ought to " have been done, and which if omitted or done would have " prevented the collision. "The nautical assessors, with whose assistance I am favored, have maturely considered the several bearings of the case submitted to them by me, as will be seen from the following questions and answers : — 1. Had the Monica and the Marie Marthe, when first seen from each other, kept their respective courses, would there have been a collision ? Answer. — We think that the vessels would have passed clear of each other. 2. When did the risk of collision commence ? Answer. — When the steamship saw both lights of the schooner. 3. Would the porting, steadying, and hard-a-porting of the Monica, as stated by the pilot, have caused her red light to be visible from the Marie Marthe to a proper look-out until the moment of collision, or for how long before it ' Answer. — The look-out on boai-d of the schooner should have seen the red light, and afterwards the green, if the steamship had crossed the schooner as stated by the man at the wheel of the schooner. These should have been visible if the look-out were good. )UKT FOa LOWER CANADA. 319 fonica haa said ship from full was about the liooner shewed ed it is for the jn, would have question to be 's red light was appeared, for lelui while the mrd helm ? I jfore the Privy 13 considered, hing was done been done, or that ought to ne would have )rs, with whose considered the lera by me, as answers : — he, when first jourses, would d have passed !e? . lights of the d-a-porting of d her red light 'oper look-out r before it ' hoouer should green, if the by the man at 6 been visible 4. Tf the !\r(.nica, at the distance of a mile or more from the JMarie Martlie, liad changed her course from north to south, would not lier green Jiuht iiave been vi.sible to a pr jper look-out from the Marie Marthe, if ou a north-east course ? Anm'er. — No doubt it would. 6. If the Mario Marthe liad continued on a nortli-east course from the time of first seeing the wliite light of the Monica, could the latter, proceeding on a course from north to south, have struck the Marie Marthe, on the bow, stem 071, or port bow against port bow ? Anaiver. — She could not. 6. When the red light of the Marie Marthe opened on the Monica, then her green and red, and afterwards her green, was the course of porting and hard-a-porting of the Monica such a course as should have been adopted by her to prevent a collision ? Ansiver.—^o. So soon as tlie lights, red and green, of the schooner were seen from the Monica, the latter should have slowe 1 immediately and stopped and reversed full speed astern, and so soon as the green light of the schooner was seen the steamship should have starboarded her helm. In not adopting this coui oC, we think she was in fault. 7. At what distance was the schooner from the steam- ship, when her two lights, red and green, were seen from the steamship ? ^/isiyen— According to the evidence, half a mile. 8. At that time, so to show her red and green lights to the steamship, must not the schooner have starboarded her helm and gone off ? Ansiver.—YGS, and from three to four points. She had the wind on her port quarter. 9. If the schooner had held her course instead of star- boarding, as stated in the last question, would the two ves- sels have passed clear of each other ? Answer.— They would— green light to green light. E. D. Ashe, Commatider R. N. F. GouRDEAU, Harbor Master. Monica. 320 CASKS IN THE VICE-ADMIRALTY COURT Monica. For the condemnation of a steamer in a case of this description throe requisites have been held requiring clear proof. 1. That the thing omitted to be done was clearly within the power of the steamer to do. 2. That if done it would in all probability have prevented collision, and 3. That it was an act which would have occuiTed to any officer of competent skill and experience in command of the steamer, (a) The omissions by the persons in charge of the steamship, clearly stated by the assessors, shew that they were not equal to the emergency, and that ordinary skill would have sufficed to enable her to pass the schooner in safety. The decree of the court is, that each party being to blame the losses be divided, and according to the Admiralty rule in similar cases, I make no order as to costs. Reference as usual. Andrews, Caron, Andrews and Pentland, for Promo- ters. W. ar„d A. H. Cook, for the Mouica. (a) Maud and Pollock, Shipping, p. 602. OURT a case of this requiring clear )ne was cloiirly I. That if done collision, and :cuiTed to any ommand of the the steamship, they were not :ill would have I safety. )arty being to the Admiralty its. Reference id, for Fromo- )2. FOK LOWEU CANADA. Friday, 2)id March, 1883. THE GUELl'H.— May. Whore ncffligeaoo was ohargc.l a^jainst a tug for runalng hor tow R^rouii.l in nil iutrioate chamiol in the St. Lawrence : Held :- 1. That th.i acoiilent was owing to the inoroaMod a.uirferof the navi- gatinn at the beginning of winter, 2. That the immediate oaune wan the shutting out of lights and from the fact of the buoys m the uhauuel being invisible ; and 3. That the tow was to blame for navigating without a pilot. Per Vu^'iam.-A claim for towage by Vital Paradis, owner of tlio tug Calumet, of 22 tons and 45 horse-power has been preferred before this CJourt for ilf.O, for towage of the Guelph, a top sail schooner of 239 tons, from Montreal to Quebec at the close of the season of 1881. The re3i)onsive plea of the owners is that the Guelph left Toronto laden with lumber for Porto Kico on the lOth of November, and arrived at Montreal on the 20th. That the agreement was for $150, but with the condition thr.' if the transit to Quebec exceeded 25 hours it should be re ( , -d to S80. That against their consent two barges were taken in tow of the schooner. '■ .ut i, Lake St. Peter, while the weather was line, o^Mug to the negligence of the tug the schooner was run aground, when one of the barges sti-uck her stern and did damage, which occasi( sed delay. That she was also delayed at Three Rivers for fuel, and was afterwards cast adrift at the Richelieu, a dangerous place where she liad to come to anchor, and broke her anchor stock, the damage exceeding in amount the value of the towage. So much of this plea a' relates to a reduction of the amount of $150 to 880. may be disposed of at once, as there has been no evidence t prove it. So may the matter of the barges. The bargain for 8150 appears to have been V 321 OURLPH. 322 CASES IN THE VIOE-ADMIRALTY COURT GuELPii. first made with Mr. Beujiimin Tripp by the promoter, in the presence of the owner of the barges, and subseiiucntly repeated between the master of the Guelph and iJalliiire, who took it for granted that the price had boon previously settled. The promoter and the owner of the barges both testify that Tripp consented to the barges being towed also. It is true that Tripp has denied that he did. But, ])eside3 the evidence of the owners, there is that of Dallaire that he agreed with the master that the barges should go also, and they were lashed to the schooner accordingly. It may be here observed that the master upon enquiring of Dallaire how long it would take to reach Quebec, was told twenty- four hours in fine weather. The defence is then restricted to: 1st. delay and dam- age where the schooner ran aground ; 2nd. delay at Three llivers ; and 3rd. the anclioring at the Richelieu, where the schooner's anchor stock was broken and delay caused. The tug and her tow left Montreal on the 23rd Novem- ber ; in the afternoon she had passed Sorel with the weatlier fine until they reached Lake St. Peter, and when in the Lake opposite River du Loup, where the channel is but 300 feet wide and very intricate, they passed the two light ships, their hghts being visible, but the next light, about sixteen miles ahead, was invisible. The buoys had been either taken up on the approach of winter, or from darkness were not to be seen. A fall of rain and snow had commenced, and the Guelph grounded on the north side of the channel. No damage was done to the schooner, as she touched upon the flats in a muddy bottom, further than injury to a plank in her stern which her master has said not to have been of much moment. It was considered dangerons by the persons in charge of these vessels to proceed, and the tug went alongside the schooner and remained there with steam up until seven in the morning, a period of nine hours. The tug then towed the schooner off with ease and proceeded. The person who acted as a pilot on the schooner, Louis Cyrille Fortier, but who was not qualified as such, has said that the )URT promoter, in the d subso(iuontly h and DiiUaire, boeu ])roviouHly the barges both eing towed alao. I. But, besides Dallaife that he iiUl go also, and ifly. It may be iring of Dallaira ras told twenty- delay and dani- dolay at Three lelieu, whore the lay caused, he 23rd Novcm- with the weatlier /hen in the Lake >1 is but 300 feet two light ships, it, about sixteen liad been either •XI darkness were [ commenced, and ;he channel. No :,ouched upon the ury to a plank in ave been of much I by the persons nd the tug went 'e with steam up e hours. The tug proceeded. The ner, Louis Cyrille , has said that the FOR LOWER CANADA. night was fine that there was no snow, and that the lights ouelph wzthou specifying which, were visible; and that he cdled out to the tug that she was too far to the north, but he thought he might not have been heard. Other witnesses say that there was no snow, to their recollection, but most of he promoter's witnesses testify as to both rain and snow If the weather was fine and the lights visible on that inght. as lortier has said, as have also the defendants in their protest, why did he not go on, as the seliooner could then have been as easily towed oft" the fiats as she was the next morning. Ihe responsibility for not requiring thi.s to be done rests with the t«w, and the law on this point was ac- curately stated for the respondents at the argument : " that he tug ,s the moving power, but it is under the control of the master or pilot (m board the ship in tow." The inference from this is plain that the stopping for the night was either a necessary precaution owing to the thick weather or if it were not. that the delay was assented to by the defendants The opinion I have formed after careful consideration of the testimony is that the tug was proceeding with due caution, but that the buoys on the sides of the channel were invisible (a witness has stated that they had been removed.) and the lights ahead were suddenly obscured by misty weather. It has been held that a tug usin. ordmary care is not liable for damage caused by an nnex! plained sheering of the tow to the right or left, and that, where the accident to a tow was occasioned by a sudden gus of wind, the tug is not liable. («) I do not think that negligence on the part of the tug has been shown or that she can be made responsible for the schooner's taking the ground With reference to the delay at Three Rivers, it is to be observed that the Calumet left Montreal with a sufficient quantity of coal, m fact as much as she could carry, about 13 t^ns, which would have sufficed to reach Quebec; but her passage down, and keeping up her steam alongside her tow all the n.glitof the 23rd. vvitli the assent of tlie tow. («) Dosty's Shipping and Admiraltj-, § 339. 323 324 CASES IN THE VICE-ADMIRALTY COURT GuKLPH. reduced the quantity by one half, and she had to stop at Three Kivers to take in 3^ cords of fire wood, a necessary precaution as it was consumed, and but one chaldron of coal remained, when the tug and her tow arrived at Quebec. Now with respect to the third complaint, that the tow was cast off at the Kichelieu. It seems that after leaving Three Kivers in the afternoon, owing to gusts of snow and occa- sionally bad weather, as stated by the promoter's witnesses, there was a delay at Batiscan, which was not objected to by the people of the tow, and Grondines, at the head of the Kichelieu, was reached about midnight. Of a sudden, the lights at Deschambault and the Platon, which indicate a most dangerous piece of navigation, the Richelieu, were obscured by snow with a strong north-west wind, when the schooner was cast off and came to anchor. The cold was 80 severe that ice was forming fast and the tow line was kept under water to prevent its freezing. Under these cir- cumstances Fortier has said that the vessel should not have been cast off to anchor, because the snow drift lasted but a very short time, and that the tug could have gone on safely after it. He has however failed to state by what process of divination the duration of the gust of wind and snow could be known before hand. If the vessels had not come to anchor it is quite possible that they would have gone upon the rocks in the Richelieu, and have been cut into by the ice, as happened on the ensuing day to the Guelph after she arrived r t Quebec, in which event it is as likely as not that the promoter would have been liable for the conse- quences. When the anchor was raised next morning on the Guelph, its stock was broken, not from the mismanagement of the tug, but owing to the rocky bottom of the river, as admitted by her master. Tlie damage is said by her master to have been about SlO. That the attempt of the schooner to run down the St. Lawrence and go to sea at so late a period of the navigation when, it may be said, the winter was actually setting in. OUST had to stop at jd, a necessary jhaldron of coal I at Quebec, hat the tow was V leaving Three snow and occa- oter's witnesses, not objected to the head of the )f a sudden, the hich indicate a Richeheu, were wind, when the The cold was he tow line was Under these cir- should not have rift lasted but a e gone on safely by what process wind and snow jls had not come vould have gone been cut into by the Guelph after i as hkely as not e for the conse- FOR LOWEK CANADA. was a hazardous experiment, does not admit of question. She left Montreal on the 23rd, and the buoys on the channel in the lower St. Lawrence were taken up on the 24th. She left Montreal, it may be said, without a pilot, as Fortier, it is proved, was not a licensed pilot, nor even a cotier between Montreal and Quebec. It is not improbable that if there had been a competent pilot on board, the accident would not have occurred, and for not having one, I think the schooner was to blame. Pilots of small tugs are generaUy not licensed pilots, and the pilot of the tug was not, thus rendering stronger the reason for a quaHfied one on the sea going vessel. The pilot of tbe tug has said that if Fortier had been a pilot, he would have ordered him to stop at Sorel, that is before entering the Lake, until day- light as is the custom. The delnvs at River-du-Loup, Three Rivers and the Richelieu, amount together to but one day. They orig. inated in the grounding of the Guelph at River-du-Loup. This accident was owing to bad weather, incident to the cor ; ,.. on of winter, and was, I think, inevitable. I award t).., , (i; demanded with costs, no very adequate remuner- auou to the promoter, who has stated that he loses by his bargain $200, owing to its having taken eight days for his tug to work through ice to reach Montreal. Langelier and Langelier, for Promoters. Andrews, Caron, Andretue and Pentland, contra. 325 Gl'ELPH. ig on the Guelph, magement of the iver, as admitted ;r master to have 'un down the St. of the navigation itually setting in. 32G CASES IN THE VICE-AUMIRALTY COUET Royal. Tuesday, 6th April, 1883. EOYAL.— Burns. In a suit by the master of a ^team tug against the owner for wages and disbursements ; held, 1. That a Vice- Admiralty Court cannot, under "the Vice- Admiralty Courts Act, 1863," exercise its jurisdiction so as to give effect to a'- agreement between the owner and master of a vessel, where the d'/ to be performed are miscellaneous and not incident to the situation . a master. 2. That by the Dominion Statute, "tho Seamen's Act, 1873," the jurisdiction of this Court, as respects vessels registered in the Provinces of Quebec, Nova Scotia, New Brunswick and British Columbia, being restricted to claims for master's and seamen's wages over $200, the 18&th and 191st sections of the Imperial Merchant Shipping Act, 1854, are so far repealed as to reduce £.50 stg. to $200. 3. That " the Vice-Admiralty Courts Act, 186!'," has not in any other way effected or repealed the 1 8'Jth and ] 9 1 st sections of " the Merchant Shippiug Act, 1854." 4. That in a suit for ship's disbursements brought by the master, who became liable upon condition that the owner did not pay them, there must be a demand on the owner before suit 5. Where a master sues for ship's disbursements without first present- ing his accounts, he cannot recover costs. Tho Court this day delivered its opinion in the above cause, to the following effect: — Judgment. — Hon. G. 0. Stuart. This is a suit by PieiTe Raphael Baron, who was master of the steam tug Royal, a vessel registered in this Province, and owned by Helena Maria Kelly, wife of John Griffin Burns, against that vessel for wages as master, for work, and by reason of liability for necessaries, on the following statement : For the season of navigation in 1880 (1st May to 22ud November), less one month, wages at $45 a month, $258 ; less $151 paid on account $107.00 COURT le owner for wages the Vice- Admiralty give effect to ai- il, where the dv' b to the situation ., I's Act, 1873," the red in the Provinces six Columbia, being iges over $200, the Shipping Act, 1854, las not in any other i8 of " the Merchant 1 by the master, who lot pay them, there ■ithout first present- >n in the above xrt. who was master in this Province, of John Griffin laster, for work, m the following ^ay to atS45 It $107.00 FOK LOWER CANADA. For the faason of 1881 at $45, $307.50; less «J283.50 on account 24.00 For part of the season 1882 (1st May to 15th J"iy) 111.50 1882, July_.18 cords of firewood purchased at Batiscan 40 50 8 tons of coal purchased at Sorel 50.00 Duehesneau, blacksmith 13.62 ^07' " 7.00 $353.62 The libel states the services of the promoter as master, for the seasons of 1880-81 and part of 1882, and goes on to allege that he acted as pilot, agent, and carpenter and performed numerous other duties. There is a plea to the jurisdiction, to which the respondent excepts upon the gi-ound that the promoter was not engaged as master, but as an agent for the tug Royal and the tug Challenger, to secure employment for these vessels, at $45 a month. That he discharged this duty for the Eoyal until the 16th of August, 1880, and for the rest of that season was employed for the Challenger, for which it is admitted that there is a balance of $68 due to him. For the season of 1881. it is alleged that the Royal was chartered by the Quebec and Levis Tow Boat Company, and that by them the promoter was i aid in full $40 a month ; and as respects the season of 1882, that the promoter acted as master at $40 a month, on account of which he has received $46, leaving due to him $24.60. The jurisdiction is not excepted to as respects the liability for what were really disbursements and not necessaries, as stated in the libel. If they were the latter, the Court could not award them owing to the residence of the parties in the same locality. The respondent denies her liability for tiie disbursements, and has pleaded that the promoter has not paid them. 327 Royal. 328 CASES IN THE VICE-ADMIRALTY COURT Royal. There can be no doubt that the agreement was for the promoter to act as sub-agent for the tugs, and as master or pilot when and if required. Indeed, it so appears, from the evidence of the promoter. In the season of 1880, until the 14th of August from the 9th of May, he discharged his duty under the agreement for the Eoyal. He then became master of the Challenger, for a month or more. One Joseph riamand has been master of the Royal until the 24th September. He then left her, the promoter took his place as master for about two weeks, when her pilot, Dubuc, was appointed, and so continued through the rest of the season. The exclusive duty as master, for the period he so served, ■would entitle the promoter to $1!2.50 as master's wages. For the season of 1881, the agreement was continued, but the Royal being under charter to a company, they would not give the promoter more than $40 a month, which he took under protest. The additional $5 a month, he would be entitled to under the renewal or continuation of the agree- ment of the previous year, making $24, but not as master ; for during this season, it appears that he acted as a carpen- ter, as painter, painting the tug himself, and as watchman. Having been paid for the entire season by the company, except as to the $24, it is impossible to say that this was master's wages. It would thus necessarily be classed with the $68, making $92 for miscellaneous work. The agree- ment does not appear to have been continued for the season of 1882, but the promoter acted as master until the 15th of July, when he was discharged by Bums, at which period there appears to be a balance of wages amounting to $24.60. This with the sum due for wages alone in 1880, viz. : $22.50, would make a sum of $47.10. The question now is, can this Court assume jurisdiction ; 1st, to enforce the contract, and 2nd, to allow the wages earned as master. The only authority under which it can be pretended that the court has jurisdiction, with reference to the agreement, is the Imperial Statute, "the Vice-Admiralty Courts Act, 1863," 26 Vic, c. 24, s. 10, sub. s. 2, by which it is enacted DURT )nt was for the id as master or )pears, from the 1880, until the discharged hia [e then became . One Joseph intil the 24th took his place lot, Dubuc, was t of the season. i he so served, iter's wages. (vas continued, ay, they would onth, which he onth, he would Dn of the agree- not as master ; id as a carpen- as watchman. the company, that this was )e classed with The agree- for the season itil the 15th of ; which period ;ing to $24.60. n 1880, viz.: I question now to enforce the i as master, pretended that he agreement, y Courts Act, :h it is enacted FOR LOWER CANADA. that the matters among others, in respect of which Vice- Admiralty Courts shall have jurisdiction, are as follows : Claims for master's wages, and for his dishursementa on account of the ship. By the same statute, the jurisdic- tion is made to extend to claims in respect of towage. In a case which came before this Court in 1865 (the British Lion, 2, S.V. A. R., p. 114), it was said by Mr. Black that he had great doubt as to the power of the Court to enforce an agreement to employ a particular tug, either for a definite or indefinite quantity of work. No doubt the court can under the statute, 26 Vic, c. 24 (the Vice-Admiralty Courts Act, 1863), enforce the payment of reasonable towage, but it does not seem that it has power to enforce an agree- ment to employ a particular tug either for a definite or an indefinite quantity of work ; and Dr. Lushington in the case of the Martha (Vernon Lush. R. 314) lield the same opinion under the 3rd and 4th Vic, c 65, s. 6, an act giving similar jurisdiction to the High Court of Admiralty, (a) The same reasoning applies, and perhaps with additional force, to the agreement now under consideration, upon which remuneration is asked for a sub-agency not incident to the duties of a master of a vessel, but one comprising duties analogous to those of a commissaire ; most assuredly, the terms of the Statute " claims for master's wages " cannot cover claims of a runner for a tag-boat or for the miscella- neous offices which the promoter promised to perform. I therefore can exercise no jurisdiction to award the 892 evidently due to the promoter. The second question, as to the allowance cf the $47.10 due the promoter for wages that have been earned by him as master, is to be determined by the enactments of two Statutes, the Merchant Shipping Act, 1854, ss. 189, 191, and that of the Dominion, known as the Seamen's Act, 1873 (36 Vic, c 129, ss. 56, 59). By the former no suit for the recovery of master's wages under the sum of £50 sterling can be instituted by or on behalf of a master or seaman in any Court of Vice-Admiralty. By the latter the (a) Vide City of Petersburg, 2 S. V. A. R. 333. 329 Royal. 330 CASES IN THE VICE-ADMIBALTY COUKT RoYAt. sum of £50 is reduced to $200, as respects vessels registered in the Provinces of Quebec, Nova Scotia, New Brunswick and British Columbia, The Parliament of the Dominion is vested with exclusive legislative powers in all matters classed under " navigation and shipping," under the British North America Act, 1867. The Seamen's Act, 1873, was passed by it, and after reservation for the Royal Assent it came into force on the 27th of March, 1874. By it, the 189th and 191st sections of the Merchant Shipping Act, 1854, are so far repealed as to reduce £50 sterling to $200, as I have said, with reference to vessels registered in the four Provinces I have named. The 189th and the 19 Ist sections remain in full fo^^e as respects all other vessels which had been made subject to them, and have been invariably canied into effect as respects them. These enactments have had a most salutary effect and have remedied grievances of which the shipping interest had great reason to complain, particularly at this port, where suits without foundation for seamen's wages, levying black mail, and in aid of the crimping business, were continually resorted to. Effect was given to these sections in the case of the Margaretha Stevenson, (2 S.V. A. E., 192) determined by this Court in 1873. I observe that this latter decision has been ques- tioned by a court, although one of limited jurisdiction; still as an opinion expressed by it, if correct, would unsettle the law in a most important particular, I shall advert to it. (The tug Robb. Mar. Court Ontario-C. A, J., 1881, p. 67). It is stated that the two sections of the Merchant Shipping Act, 1854 (189th, 191st) are not to be read in connection with the Vice- Admiralty Courts Act, 1863, thus leaving it to be inferred that the latter repealed tlie former act. If such be the case, an efficient safeguard to British shipping, frequenting not only this port, but all the ports of Her Majesty's Dominions, would be removed. The Merchant Shipping Act, 1854, by two sections limits, except in certain cases. Vice- Admiralty jurisdiction over masters and seamen's wages to cases above £50 sterling; and because OUUT FOR LOWER CANADA. 331 jssels registered few Brunswick i" the Dominion 1 in all matters ider the British Act, 1873, was loyal Assent it By it, the 189th ing Act, 1854, 5 to $200, as I 'ed in the four i 191st sections sels which had variably canied aents have had grievances of n to complain, )ut foundation i in aid of the ed to. Effect lie Margaretha y this Court in las been ques- 1 jurisdiction; would unsettle ill advert to it. „ 1881, p. 67). jhant Shipping I in connection t, thus leaving former act. If ritish shipping, ports of Her The Merchant lits, except in er masters and : and because it is said in the Vice-Admiralty Courts Act, 1863, while enu- merating the cases of jurisdiction, that the Vice- Admiralty Courts shall have jurisdiction in respect of claims for their wages, it is contended, that it repeals by inference or impli- cation the 189th and 191st sections. As no mention of the fii-st statute is n ade in the second, the latter would rather be confirmatory of it, affirming that which existed before. The former statute is not even referred to in the latter. A later act of Parliament has never been construed to repeal a prior act, unless there be contrariety or repugnancy in them, or, at least, some notice taken of the former act, so as to indicate an intention in the law to repeal it ; the law does not favor a repeal by implication unless the repugnance be quite plain, and a subsequent Act which can be reconciled with a former Act shall not be a repeal of it. {Div. on Stat., and cases cited, p. 674.) Of this supposed implied or infer- ential repeal, a recent writer has taken notice. (Madachlan on Shipping, p. 253.) Adverting to the Admiralty Court Act, 1861, (2 S. V. A. 11., App. 24S.— Boyd Merchant Ship- ping Laws, pp. 161, 456,) in which a like jurisdiction is conferred on the High Court of Admiralty over any claim for masters' wages, and providing that if in any such case the plaintiff do not recover £50 he shall not be entitled to costs, he has observed : " It has been said that this section is repealed by the provision of the Admiralty Court Act, 1 861, because the language of it is ' a^iy claim ; ' but whereas the one statute affirmatively gives jurisdiction, and the other negatively, within certain limits, debars the suitor from the court, there seems to be no contradiction between them, such aa would otherwise imply the repeal of the earlier statute." Additional jurisdiction in other matters was to be given by the new act, and in a list of the whole, claims for masters' wages, were necessarily repeated, leaving them standing as before. Then there is the Imperial Statute, the Mer- chant Shipping Act, 1873, the second section of which enacts, — that it is to be construed as one with the Merchant Shipping Act, 1854, and the Acts amending the same, and RoVAt-. 332 CASES IN THE VICE-ADMIRALTY COURT Royal, that the latter statute and these acts may be cited col- lectively as the Merchant Shipping Acts, 1854 to 1873. The 33rd section repeals several sections of the Merchant Shipping Act, 1854, but not the 189th or 191st sections, which seems to show that the Legislature did not intend to repeal these sections by the Vice-Admiralty Courts Act, 1863, but advisedly left them in full force. I have, therefore, not the slightest hesitation in deciding that the two sections of the Merchant Shipping Act, 1854, have not been repealed by implication or inference, and that I must give effect to them, except in so far as they have been modified ii) the Dominion Statute, the Seamen's Act, 1873, with respect to vessels registered in the Provinces referred to. Now as the sums earned by the promoter as masters' wagt s do not amount to $2UU, I cannot assume jurisdiction so as to award them to him. There remains to be disposed of the claim for disburse- ments. The amounts have been already stated. The last, for $7, may be discarded, as the promoter does not appear at the time (March, 1872) to have been then employ- ed as master ; in fact, the navigation could not have then been open. As respects the remaining three accounts : the first is for firewood sold by one Edouard Alain, on the 29th June, at Batiscan, when the Eoyal was towing a raft and required fuel. The promoter then gave an order on Burns for the price, $40.50, payable to Alain, and the promoter endorsed it. Alain has testified " that in taking the signa- ture of the promoter on the order he intended to hold him responsible for the price, if he was not paid by Burns." The suit was brought on the 19th of July, 1882, and the draft was paid by Burns on the 22nd of the same month. The second account is for coal sold at Sorel, by one Ernest Rondeau, the day before the purchase of the firewood ; the account was made out against the steamer Royal for $50 ; at the foot the promoter wrote correct, and signed his name to it. Rondeau at the same time asked the name of the owner; the promoter said Burns; the reply waS: "I don't 30UUT FOB LOWER CANADA. 333 y be cited col- 1854 to 1873. f the Merchant 191st sections, did not intend miralty Courts brce. tion in deciding ping Act, 1854, 3rence, and that they have been Seamen's Act, I the Provinces he promoter as cannot assume m for disburse- r stated. The moter does not n then employ- [ not have then e accounts : the ivci, on the 29th n"ng a raft and order on Burns i the promoter king the signa- led to hold him id by Burns." 1882, and the le same month, by one Ernest } firewood ; the Eoyal for $50 ; ligned his name le name of the was: "I don't know him, I will give the coal to you, but you must bo resiwnsible ; and then the promoter said : "It is all right, if ke dues not pay you I will." Rondeau being in Quebec on the 15th of September last, 1882, Burns paid him the amount. The third account is for work and materials furnished by one Decheneau at Quebec, to whom the pro- moter said : " If Burns does not pay you I %uiLl" The account was made out on the 22nd July, 1882, and at the expiration of a fortnight Burns paid it. The respondent has contended that these amounts caimot be recovered because the promoter did not pay them. It was so held by Dr. Lushington (the Chieftain, Browning & Lmh 104, the Edwin, 281) but the rule was relaxed by Sir Robert Phillimore in the case of the Ferouia (2 A. and E. R., p. 65), in which he said : " I cuunot but think that in this and other cases," referring to Dr.Lushington's decisions, " an attempt has bten made to strain those judgments beyond what the learned Judge has intended. My reasons for that opinion were fully stated by me in a recent case, that of the Red Rose. I shall allow the items, l)ut I shall accom- pany them with a recommendation that no order for the payment thereof be made, until the master has deposited in the Registry vouchers for the payment, or given satisfac- tory evidence that the accounts have been paid." I would readily so decree in this case, if it were not for several obstacles. The evidence establishes that the promoter did not assume a direct liability to pay the accounts but one purely conditional upon the agent of the tug not paying them ; and until such time as the respondent, or her agent, was placed in mord upon the presentment of the draft and the accounts, and a refusal or neglect to yay established, liability by the promoter could not attach to him. These precautious were not taken, as I think they should have been. But there is another impediment in the way of a judgment in favor of the promoter. In the case of the Fleur de Lis it was held, that a master suing for wages and disbursements, is bound to furnish accounts before ROY^L. 834 ROTAt. CASES IN THE VICE-ADMIRALTY COUKT beginning his suit ; if he do not, he will not be entitled to his costs ; the language of Dr. Lushington in the case is " The master was bound by practice and justice to furnish accounts before bringing his suit ; ho might have had the amount claimed without suit, he is therefore not entitled to his costs." («). If the account sued upon with the proper vouchers, that is, the accounts which have been referred to, had been presented to the respondent or her agent, Burns, before this suit was brought, and a default to pay the three accounts established, I should have rendered judgment in favor of the promoter for the amount, if not paid, and if paid after action was brought, for the costs. The promoter quarrelled with Burns when discharged. He seems to have acted without due premeditation in bringing this suit, a step like others taken in haste most unfortunately to be repented of at leisure, as I ind myself compelled ♦o dismiss his suit. He must also pay the costs. Pentland, for Promoter. Hearn, Q.C., contra. (a) 1. A. & E 49. 30URT FOB LOWER CANADA. 335 it be entitled to , in the case is latice to furnish t huve had the i not entitled to with the proper leeu referred to, r agent, Burns, ;o pay the three id judgment in lot i)aid, and if The promoter He seems to I bringing this t unfortunately If compelled to t3. Fridaij, 8th. June, 1883. VICTORY.— Natvio, 8ALVA(iB SUPERVEMIMa ON A TOWAGE CONTBACT. A Hteam tng engaged to tow a ship can claim for services to Buch Bhip, if she incurs a rink or performs a duty, outside the ncope of her original engagement, and when hhe hnw been freed from the obligations under which she is placed by her original contract, as by a vU major, or by accidents not contemplated when the contract was entered into. The tug cannot claim if t!' e ihip hai. . sen brought into a dangerous position by the fault of tb tu(<^, on it • principle that a vessel (so to speak) cannot profit by L r o in wTonjj This was a suit for sal^ ^o, promoted by Mr. J. H. Powell, for services rendered under the circuTustances fully stated in the following opinion of the court. Judgment.— FoTi. 0. Okill Stuart. The promoter, John H. Powell, owner of the steam tugs Rhoda of 182 tons, with a crew of ten, and of the Flora of 49 tons, with a crew of eight persons, has brought this suit against the Victory, of 1,500 tons, valued at $5,000, and her cargo at S18,000, for salvage services. It appears that on the morning of the 12th of November last she was laden with timber and deals, and ready for sea, lying at Hall's booms, on the north shore of the St. Lawrence. Under an agreement that the Rhoda should tow her as far as the Traverse, she was at an early hour towed out of these booms, and inside of the Fly Bank, a shoal running along the north shore, where there was a channel for vessels of the draught of the Victory, about 150 feet broad. This vessel was from 200 to 300 feet long, and it appears that after proceeding about half a mile, and when near the end Victory. 331) CASES IN THE VICE-ADMIIULTY COUKT VicTouY. of tlie bank, she took a sheer and there ran aground. Tnef- fectuul attemi)t8 were made by the Khoda and by the Flora to tow her off with a receding tide. They were directed to return at the flood-tide in the afternoon. They did so, and under the direction of the pilot of the Victory, the tugs were kept at work, but were unsuccessful in getting her off, until, as tlie promoter, the owner of the tugs, who liad been spe- cially requested by the nuister of the Victory to accompany his tugs, has said, ho suggested taking out two hawsers from the stern of the ship and fastening them to the booms known as Blais, on the north shore, opposite to which tlie ship was aground. This being done the Victory was held from drifting up with wind and tide over a bottom of small boulders. Tlie pilot claims the merit of suggesting and adopting this course, of which I entertain doubts, as he hud been at work for three hoftrs and upwards, and it was only about 8 p.m. that the Flora took out the hawsers and fastened them to the booms, when the Victory swung round, and, with the aid of the Flora, floated off. The wind was strong and blowing a gale, the night was dark with rain and hail, the boats ran some risk, and, although well handled, the Rhoda suffered some damage, and the ship was in great peril of receiving much more injury than she actually sustiiined. Had she gone further on the bank in the Lite season of November, she might have been permanently injured; as it was, according to the master's statement, tlie damage was great. He has said that " by going and lying aground the damage sustained was the straining of the liuU and the breaking of a number of her bottom planks, also tlio breaking of about 200 feet of her false keel. She had about nine feet of water in her when she was got oil' the bank. The estimate of damage to the hull is $7,000. The cost of discharging the cargo, including bateau hire and othe. expenses, amounted to something like S! 1,500." The plea to this suit, while admitting salvage services, is that Ihey were of small v.due and that $250 is a sufficient remuneration, which with costs has been paid into the OUKT ground. Tnef- id by the Flora 'ere directed to hey did so, and ', the tugs were g her off, until, liad been sjje- J to accompany t two hawsers II to tlie booms B to which the ctory was held (ottora of small suggesting and ubts, as he had ,ud it was only 3 hawsers and y swung round, The wind was c with rain and 3II handled, tlip i was in great a she actually nk in the late 1 permanently statement, the oing and lying ling of the hull ai planks, also ceel. She had was got oil' tiie lull is $7,000. ig bateau hire [ like $1,500." ge services, is is a sufficient paid into the Fuli LOWKU CANADA. 337 K.'-ristry ; an.l that if there was injury to the tugs it was VroTOKv. because thi'v were badly managed. The evidence on eacli side is composed of quite a number of depositions, portions of whicli are inailmissible testimony not objecteil t... namely, the opinions of persons uiH)n a hypothetical case, or some case wliere salvage has been paid to tlieir knowle.lge. As to this particular salvage, witiu'sses for the prom(jLer say it was worth 5^2,000. On tlie other hand, most of those for the ship say that in reality there was no salvage at all, b.;cause slie would have tluated witii the return tide, and tliat SI.) an hour, tarillrale for towage, would have been sullieient reniunerati..n. Am..t.'r „tliers the master of the Victory has said, that it woidd have been better if the tugs had not turned up at all, as all he had to do was to take out the hawsers himself from the stern, attach them, and tiien float her off. This witness seems to have forgotten that he pressed the j.romoter rsonally to accompany his tugs to ensure a better command of them • and not only this, but while he or his pilot were using the' tugs he attemi.ted to force upon the promoter the hirin- „f another tug, which he declined; and, ^^■hat is nu.re, while the ship was lying broadside on the shoal, he or his pilot were tugging at her about three hours to force her against wind and tide, and the idea of the hawsers during that" time never occurred to either. Even when the idea was adopted It was almost too late, and but for the Flora's activity in taking the hawsers to the booms in boisterous and tempes- tuous weather and fastening them, attended with some danger, the Victory would not have been then got olf, as there was not time for the ship's boats to do it, and it is in evidence that the men refused to go in them. The q uantunt for these services is the only question in the case, as no neghgence or carelessness in the tugs has been pleaded or proved ; on the contrary, the master of the Victory has admitted that they were well handled. The Ehoda has suflered damage, and it is in evidence that she must be docked to ascertain its nature, at a cost of |G0. W 333 CASES IN THE VICE-ADMIRALTY COURT Victory. As to the mode and manner and amount of remunerating the proprietors of tugs for their services there is no fixed rule. The Court has to rely on its own judgment. If it had to rely on the opinions of the witnesses, all very respectable persons, who have been examined, it would ne- cessarily feel very much afloat ; as between $2,000 sworn to on one side, and $250, or nothing, on the other, there is a most material difference. The witness who has spoken most intelligently in the matter is Julien Chabot, who, in answer to a question stating the nature of the service which was rendered and the danger of the tugs, has said that every- thing depends on the position of the vessel and where the steamers are placed to do the service ; there is always more risk in working at night, more particularly in the fall of the year, than at any other tima. A good deal would depend also upon the skiU in handling the boats and upon the danger of coming into colUsion with other vessels at anchor in the vicinity; there is always danger of striking the booms if there is no vessel alongside. In a current there is the also danger of coming into contact with the ship herself. All these circumstances are dangers of navigation. He rates the llhoda and Flora as second and third class boats respect- ively on account of their power. The Flora is considered in every respect a good harbor tug, and powerful for her size, and the Rhuda is considered a first class boat for her power, and a good sea boat. This witness, of much experience, has been produced by the respondents. He has been the manager of the St. Lawrence Steam Navigation Company for about nineteen years, and has further said : " I know the usual charges for the services of tug steamers, and I know the tug steamers lihodaand Flora," and upon beiay asked, upon a statement of the work done by these vessels, for the Vic- tory what his charge would be, he has answered, " If we had made no engagement our charge would be dependent upon difficulty of the service and the value of the property saved. Under these circumstances we would not be limited to the tariff rates. We have sometimes charged more than forty lURT [■ remunerating ire is no fixed dgment. If it sses, all very d, it would ne- $2,000 sworn other, there is 10 has spoken habot, who, in i service which aid that every- and where the s always more t the fall of the would depend and upon the ssels at anchor f striking the urrent there is le ship herself, tion. He rates 3 boats respect- 3 considered in il for her size, t for her power, oh experience, ! has been the ition Company : " I know the and I know the ;ig asked, upon Is, for the Vic- ed, " If we had ependent upon )roperty saved, limited to the lore than forty FOR LOWER CANADA. 339 dollars an hour for a boat when she was required for special Viotoby service to assist a vessel in danger, we have charged as much ^^— ' as a hundred dollars for an hour's work, but it was under special an-angement with the captain. Without any agree- ment at all, we have charged from forty to fifty dollars an hour m the Iiarbor of Quebec." As stated in instructions of tlie Board of Trade respecting salvage, the main ingredients of a salvage service are : 1 The degree of danger from which the property is rescued. 2. The value of the property saved. 3. The risk incurred by the salvors. 4. The val.e, if any, of the property by the use of which the services are rendered, and the danger to which it was exposed. 5. The skill in rendering the services. 6. The time and labor occupied. That the Victory was rescued from a place where if there had been further delay she might have been a wreck is not to be doubted. The value of the ship and cargo has been stated. The Rlioda is worth $15,000 and the Flora $10,000._The nij^ht.wasdark; the velocity of the wind appears from the evidence of Mr. William Ashe, in charge of the Quebec observatory, to have been by 11.30 p m at least 41 miles an hour. It was accompanied by sleet and ram, the waves dashed over the booms, and the wharves were overflowed by the force of the tide, and there was but a confined space between the shoal and booms to work Tha' some risk attended the boats is apparent from the fact that the Rhoda was injured and must be docked. That the Flora rendered essential service- whether at the instance of the promoter or the Victory's pilot is a matter of indifference -mhuits of no question. The time occupied in the salvage service was quite five hours, and I think the case is within the fifty dollar category stated by Mr. Chabot. Then there is the matter of towage in the morning of the 12th November I cannot but believe that the Victory was run aground by negligence in steering, and without any fault in the tugs The llhoda was in attendance and towed out the Victory and the two were at work for an hour and a half ; for this I ' 340 CASES IN THE VICE-ADMIEALTY COURT VicTOKT. allow aa towage work S50. I am disposed to allow the further sum of $60, which it will cost to dock the Ehoda, the whole making a sum of $610 and costs. In coming to this conclusion I have adhered to the rule apphcable in similar cases. " The amount, according to the maritime law of England and the United States, rests in the sound discre- tion of the Court, upon a full consideration of all the facts of the case. It generally far exceeds a mere remuneration pro opere et labore, the excess being intended, upon prin- ciples of sound public policy, not only as a reward to the particular salvor, but also as an inducement to others to render like services." (a) W. and A. H. Cook, for the salvors. Andrews, Caron, Andrews and Pentland, for Eespon- dents. (fl) Marvin, Wreck and Salvage, s. 96. OURT ;d to allow the 3ck the Khoda, In coming to 3 applicable in le maritime law le sound discre- of all the facts e remuneration led, upon prin- i reward to the int to others- to rid, for Respon- FOR LOWER CANADA. 341 )6. Friday, 20th July, 1883. MONAEK.— Halvorsen. In a suit for seamen's wages, the protest of a Foreign Consul to the jurisdiction over-ruled. This was a suit for seamen's wages, and came before the court upon the intervention of the Consul for Sweden and Norway, in the form of a protest to the jurisdiction, the Monark being a foreign vessel, and the case being one which it was represented the Court in its discretion ought not to determine. Judgment.— FoTi. G. Okill Stuart. A motion has been made in this suit for wages, to dismiss it upon the ground that the Monark is a foreign Norwegian vessel, and that notice of the suit before it was instituted was not given to the Consul for Sweden and Norway, and that no copy of such a notice was attached to the affidavit to lead the warrant for arrest of the ship; and in support of it, a protest from Mr. Schwartz, the Consul for Sweden and Norway, has been addressed to me. It is to the following effect, and bears date the 16th instant: " In connection with the present case, I would respectfully draw your Honour's attention to the following facts : The vessel seized by the promoter arrived in this port on the twenty-seventh day of June last ; from that day to this I never saw the promoter. No complaint or demand of any kind has been made by him to me, and I never received any intimation from the pro- moter declaring his intention of making a claim against the Monark, except the letter hereunto annexed, and signed, I believe, by M. A. Hearn, Esquire, advocate, of this city. This note I received at about 10.30 o'clock on the morning Monark. 342 CASES IN THE VICE-ADMIRALTY COURT MoNARK. of the 12th instant. The vessel being at New Liverpool, I did not succeed to see the master before about four o'clock in the afternoon, when I immediately niroimoil iiim of the conteiits of Mr. Hearn's letter. N • fosuial notice of ?ii.j kind from the promoter was ever s'ive'l upon mu. I here-- with i-ubmit the account of wages :if Iht' said seamt n ;ib made out by the master, ann which ■ fsccept as pi iraa J<;rie con-ect. The balance, as shewn by th',- account, the master assures me he has always been wiUing to pay if he had been req. f ;ted by tbj promoter to do so. This balance is now deposited in the Consulate for payment upon ]/,oviag his identity. I beg, th^refow, to submit that no wmni; has (iver been done or intended io be dnne by thi master, who has always been ready to pay the jromots-i' his due, but v.ho Jias not even had an opportunity to become aware of his desires before the action was commenced, and that there is j.ot, nor ever has been, any need or necessity whatever of the intervention of the Vice-Admiralty Court in the matter. Under these circumstances I consider it my duty to protest against the promoter's suit, and ^^o respectfully ask that your Honour will not take jurisdiolion in this cause." The letter from Mr. Hearn refeiTed to by the Consul, addressed to him, bears date the 12th July, and is as follows : — " Sir, — Frank Berry has instructed me to proceed against the Norwegian vessel called the Monark, her master and owners, in the Vice- Admiralty Court, for wages due him on a voyage from Antwerp to Quebec. It appears that my client was carried to sea without signing the ship's articles or being engaged before the Consul. I have already written to the master of the vessel, but he has not thought proper to even acknowledge the receipt of my letter. As the amount due my client is small and the costs incident upon its collection must necessarily be high, perhaps an amicable settlement might be had. A reply before noon to day is requested, as my instructions are of a peremptory nature." 30URT FOR LOWER CANADA. 343 New Liverpool, )out four o'clock nii^i! Jiim of the il notki: of !^ii.j lon me. I lure- said seamt n .iB :as piiriia Jii'ie ount, the laaster ) pay if he had This balance is nt upon |/,'oving at no wrong has tlif: master, who uis due, but who lie aware of his Liid that there is ity whatevv-r of rt in the matter. • duty to protest 3tfully ask that his cause." by the Consul, Fuly, and is as proceed against rk, her master for wages due lec. It appears out signing the Consul. I have , but he has not receipt of my 8 small and the 3ssarily be high, had. A reply jtructions are of At about three o'clock in the afternoon of the same day, 12th July, the Consul answered this letter personally by calling on Mr. Hearn and stating to him that he had not seen the captain, that he knew nothing of t)ie matter and could not do anything. Upon his being asked by Mr. Hearn what he was to do as he did not wish to trouble the Court with so small a case, the Consul replied : " It is not for me to tell you what you should do, but you can do as you wish." On tlie same afternoon the warrant was issued, but the Monark was not arrested until the next day. Two days before the notice to the Consul, on the 19th July, Mr. Hearn wrote to the master demanding payment. The statement of the promoter, on oath, is, that he was told by the master at Antwerp, that the Monark was to sail for New York, that he was not asked to sign, and did not sign ship's articles, that on the voyage he ascertained she was bound to Quebec ; that on arrival at Quebec he asked for his discharge from the master, stating that he had friends and relatives in New York whom he wished to join, to which he received for answer : " We are in Quebec now and you must return in the ship." Upon this he asked to be paid off, but received $2 on account. He has added that on two occasions he demanded hk wages and discharge from the master, before applying to a lawyer to sue him. So much of the foregoing statement is denied by the master as respects the demand of payment, and at the same time, while stating that he did not receive notice of the suit, he admits his wiUingness to pay the wages. The notice to the Consul would have been considered by me as too short were it not that he acted upon it by declining to interfere. Moreover, the Consul has signed a bond for the release of the ship, in which it is stated : " WiUiam Anthony Schwartz, of the city of Quebec, gentle- man, who, submitting to the jurisdiction of Her Majesty's Vice-Admiralty Court of Quebec, binds himself in £S0 to answer this action. " This bond bears date the 14th July MoNAKK. 344 CASES IN THE VICE-ADMIUALTY COUUT MoNARK. and carries with it an assent to the jurisdiction of this Court. Tiie master of the sliip and the Consid admit the amount claimed, but refuse to j)ay the promoter's costs. The case originates in an irregularity of the muster, in taking the promoter to sea without signing articles. This, he was aware of some time before the suit was brought, and Ids duty then was to discharge him and pay him ids wages if he refused to sign articles, which he did refuse to do at Quebec. After the arrest of the ship, the wages appear to have been tendered without costs and refused, which so come to be the sole difficulty in the matter. The protest does not contain sufficient grounds to induce the Court in the exer- cise of its discretion to stay its hand by declining jurisdic- tion, for the reasons stated in the respondent's motion. The not annexing the notice to the affidavit seems to have been an accidental omission, but this will not annul the pro- ceedings. The respondent's motion is dismissed with costs. Hearn, Q.C., for the Promoter. Fentland, for the Monark. 'UT ;ction of tliis jiil udmit tlio 's costs. The tor, ill taking Tliis, lie WHS light, and liis 1 his wages if "use to do at ;es apjiear to I'hich so come otest does not in the exer- iiing jurisdic- motion. The to have been nul the pro- josts. FOR LOWER CANADA. 345 Friday, 21 th July, 1883. MONAKK.— HoLVORSEN. JUUISDICTION— WAGES. The 189th Hection of tho Merchant Shippinjf Act 1854, applies to foreign as well as British vossuls, and a Vico-Adiniralty Court cannot entertain a suit for seamen's waffeg, the dumand being below £60 stg., unless upon a reference as prescribed by that Act. A seaman of the Monark, a Norwegian .ship, was en- gaged at Antwerp, where he wns informed that her destina- tion was New York. He did not sign articles. After sailing he learned that she was on a voyage to the port of Quebec, and after her arrival there he demanded his discharge and wages. Subsequently he brought this suit, which was tried summarily, and at the argument exception to the jurisdiction was taken, on the ground that the amount in controversy was less than £50 sterling, and that the Court must ex-offi,cio decline exercising it. Judgment.— .BTon. G. OUll Stuart. In this case, which is a suit for wages for $54.40, the demand is admitted to the extent of SI 6. 13, but at a sum- mary trial, without any plea to the jurisdiction, it was argued for the respondent that this Court had no jurisdic- tion as the amount in controversy was less than £50 ster- ling, and that thus it was taken away by the 189th section of the Merchant Shipping Act, 1854. The case of the Margaretha Stevenson (a) was referred to in support of this position, wherein it was decided that a less sum than £50 sterling being due to the master of the ship as wages, the master, by the Act being upon the same footing as a sea- man, the Court could not take cognizance in the matter. (o) 2 S. V. A. E., p. 192. Monark. w. 340 CASES IK THE VICE-ADMIUALTY COUKT MoNABK. The 180th section eu.icta that " )io suit or proceedinff for the recover!/ of wages under the sum of £50 sterlivf/ shall be instituted hij any seaman in any Court of Admiralty i,. V iC.-A-h'iiralty (with the excoptions therein stated, of M'hi'i' ''is case is not one,) unless any Justices acting ■under the authority of this act refer the case to he adjudged by such Court." By the same Act, section 188, a sea- man can sue for wages in a summary manner before tivo justices or a stipendiary marpstrate where the amount does not exo""'' '"'^ ' s respects British vessels and sea- men, the soiition of the statute limiting the jurisdiction to ^£50 has been continually acted on by this Court since the decision in the case above referred to, l)Ut the present suit, it is now said, is against a foreign ship, and the section of the statute must be limited to British vessels, and the jurisdiction of this Court exercised as it stood previous to the act of 1854. Upon a careful examination of cases decided under this section I find none in which the question was fully raised or examined. The only one in which it is aUuded to, is that of Burns vs. Chapman (a), in which a case of Cope vfi. Do'iierty (6) was referred to, an(' ui wliich it was held that, excepting where foreign sliips are expressly mentioned, the Merchant Shipping Act of 1854 applies only to British ships, l>nt that, it is k observed, i|.plies to matters affecting thu substance of the remedy, and not the form. In the former case *here was a claim for wages against the master, also a part owner of an Amerian ship, and upon an incidental cucstion to set aside a capias there was a quaere w jther the 1 S'Jth section applies to a claim for wagi^b earned a board au American ship. On the other hand, there is the case of the Milford, which wou. i seem to co^er the point now in controversy, (c) It was there held f in a suit for ^ '^es by a master, who is placed on the i same footing by the Act as a se;rrj,n iii re^; ect of the recovery of his •■ tgep, that the 191st section does so S( (a) 5 C. ' V S. 1 . (c) Swabey i- 362. n (*) 27 L. <0O JOUIIT FOR LOWEl. wNADA. 347 proceeding for aterlhiff fihall t of Admiralty lerein stated, of Justices (icti)ig t to he ail judged on 188, a 8«ti- iiner before two '.re the utiinant vessels and sea- e jurisdiction to Court since the e present suit, it . the section of ossels, and the tood previous to nation of cases lich the (luestion le in which it is , in which a case ' in which it was b are expressly 854 applies only :ved, '] plies to jdy, and not the claim for wages n Amerian ship, [e a capias there lies to a claim for On the other h woUi i seem to t was there held 1 placed on the i ^e^ cct of the secti'n does so 362. extend to the masters of foreign ships, and gives them a remedy under it for their wages. Muster and rfeameu having thus the same remedy for their wages, the observa- tions of the court in that case are aj)plicalde in this. The language of Dr. r.ushington in it wi^ . " But what is there t(> prevent th(^ aj)pIication of the Merchant Sliijiping Act, 1854, the 19 1st section of which gives the master the same rights and remedies for tlie recovery of Ins wages as seamen have ? The construction put upon tlie 29Gth section of tlie Act in cases of collision, wliere foreign vessels on tlie high seas are concerned, cannot Iiind it in tlie present case. In cases of collision the court has held that a British statute could not regulate the conduct of foreigners on tlie high seas. The general rule has been that where vessels are within British waters, a statute, rfneral in terms, and, intended for the protection of nnvijution, would apply to foreigners, as in the case of statutory obligations to take pilots on board," According to this authority, the promoter in this suit would have his remedy under the 189th section, only under the r(;strictions therein stated. The object of the legislature in passing the ) 89th section was to remedy a serious evil, to which the shipping in British ports was pxposed, to prevent frivolous and unfounded suits in the higher courts, including the Vice-Admiralty Courts, by seamen who were in the habit, particularly at this port, upon a claim of wages, of instituting suits for trivial amounts 8' detaining vessels at an expense of hundreds of dollars, Will perliaps not ten dollars were due. On the other hand, cas' ~i of oppression by masters of vessels on their men and improper retention of their wages occurred. To meet these evils the 189th section was passed, which precludes the institution of a seaman's suit for L'S'^ than £50 sterling, in this tdiirt. So much for the p,..iectio') of the ship-owner. As respects the seaman the previous section, the 188th, affonls him a remedy in a summary manner before a Stipendiary Magistrate or any two Justices of the Peace acting in or near to the place at which MONAKK. 318 CASES IN THE VICK-ADMIHALTY COUUT MoxAiiK. tlio service has tormiiiated U})on ti cliiim not, oxcei''Iinj( jC aO, '"'"' H') that foranythinj? ubovn ^50 the auaman has this cdiirt as his tri))unal, and for anythiiij^ bulow that sum he has the Justic«a,. with this further relief, however, that his case may coriK! before this court should the Justices gflo Ht to r»^fer it. These provisions liavo oi)eratt'd wtdl as respects liritiflh ships, by aflurdin^' an ellectivo and (-heai) remedy to the ship-owner and the seaman. But it is said tiiat the J 89th section does not comprise foreign ships. The language is most cnraprehcnsive where it enacts that no suit or proceeding for the recovery of wages un under the aura I if any seaiuim 'ice-Admiralty, most beneficial it is diseretioa- ;3 of foreit,'n(ir8 retiou 1 ciinnot Litweeu Britiah distinction, are irinciple of kw ace of the coa- in deciding on itract ; hut the ial i>roceediug8 of the state in in the United and the court, d is tlif i)roi)er foreigners, (h) at any nation i open its own nd to the same 3 ; and to give ongs which it cipal code for rd Brougham's tSict of Laws ch. FOR LOWER CANADA. judgment in the ca»«e of Donn vs. Lii)i)inan (a) contains some striking remarks on the same subject :— " The hiw on this point," he said, " is well settled in this country, where this distinction is properly taken, that whatever relates to th(* renuidy to bo enforced must be determined by the lex fori, the lavi^ of the country to the tribunals of which the appeal is made." (b) The tribunal before which the pro- moter .should have brought his claim for #54.40 is obviously that of the justices to which I have referred. By the limit- ation of £50, this court is debarred from acting in the matter, and I must therefore decline jurisdiction. The suit is dismissed, but without costs. Hearn, Q.C., for Promoter. Andrews, Caron, Andreiva and Pcntland, contra. 349 (rt) 5 Clark and Finnely, R. 1, 13, 14, and Story 1 c. in note. (*) The Vernon, 1 W. Rob. 819. MONARK. 350 CASES IN THE VICE-ADMIRALTV COURT Friday, 28th September', 1883. THE CARMONA.— Halcuow. Where a veHHel with a valuable cargo wan stranded on a dangiiroiis plnco near Capo Roni sr Halvago sorvicea were rendered by a passing Hteiimer, Held, 1. Tliat as there was no danger to life or property incurred by the salving steamer in aiding to get her off, the sum of $l,O()0 was an adequate remuneration ; hut '2. Tliat a tender of the above amount, after suit brought, without ooits was insutiiuient. ('akmona. Salvage. — This was a suit promoted by the Quolxjc Steamship Company, under circumstances fully noticed in the following judgment: Judgment. — Hon. 0. Okill Stuart. The present claim for salvage services has been made by the owners of the Miramichi against the steamship Carmona. They ajjpear to have been performed on the 27th June last, while the Uarmona of the burden of 2,247 tons, with a valuable cargo, was ashore about seven miles N.N.W. from Cape Rosier, whore she had run aground in foggy weather, ttt about one o'clock in the afternoon. She was laden with iron rails, coals and other goods. She made no water and received no damage. The master and crow immediately set to Work and tiirew a part of the cargo overboard, so 11.3 to lighten her and lloat her oft' with the aid of her engines at the rise of the tidi>. They so contiuuetl until about seven o'clock in the evening, when the Miramichi, a steam vessel of 727 tons, hove in sight on her way from Gaspd to Montreal. The Miramichi is a passenger steamer, and was by signals hailed to come to the assistance of the Carmona. She did so, and came to anchor on her starboard side. She subsequently weighed anchor, and by means of hawsers 30UKT W. [ud on a dangerous Icrcd by a passing ty incurred by the of $1,U<)0 was au t brought, without by the QuebiiC fully noticed iu aH. i been made by nship Cannona. 27th June List, t7 tons, with a IS N.N.W. from foggy weatber, was laden with e no water and w immediately iverboard, so as if her engines at itil about seven a steam vessel from Gaspe to earner, and was f the Carmoua, )ard side. She ans of hawsers FOR LOWEH CANADA. 351 from the Cannona fastened to the Miramichi, an attempt Carmona. was made to jndl her oil" with the aid of the engines of the Cannona. After tlie hawsers became taut, the Uarmona's engines were reversed, and while tiie Miramichi was attempting to draw her off, aided by the en:.rines of the Cunnona, she rtoated. The time expended l)y the Mira- michi during which she was engaged iu the tloating oil' the Cannona, was about two hours and a half, and her devia- tion from her course, as one of tlie respondent's witnessfs has said, was nothing to .speak of The defence iigainst this claim is that the Carmona was relieved from her perilous position by the rising of the tide and the power of her own engines, before the Miramichi rendered any assisUmce. This pretension is not substantiated by the evidence, although the master of the Carmona has testified in support of it. The master of the Miramichi finds it luird to say that there was not a possibility of her coming off as pretended, but iu his opinion, she would not have done so that night. Tiie master of the Carmona has stated that if she had not come off his intention was to take half an hour for supper, then turn to all hands and throw over cargo all night. The coast is au extremely dangerous one, and had the wind come on to blow in the niglit the probability was that she would have been a wreck by the ensuing morning. The rise and fall of the tide in the locality is from four to six feet, and it is, I think, extremely doubtful whether the Carmona would have even got off without the aid of the Miramichi, until the ensuing day, at the cost of much more of her cargo. At any rate, she aided in getting the Carmona out of extreme danger while -stranded in a very dangerous i)lace, and her owners are entitled to salvage. Although it has been held that when salvors, in good weather, simply towed a vessel disabled to a safe anchorage, incuniug no risk of life or property, as in this case, and there was no deviation from their ordinary pursuits, a low rate of salvage should be allowed, (a) still Admiralty Courts have to look not (rt) DEsty's Shipping and Adm. §320. 352 CASES IN THE VICE-ADMIRALTY COURT Oarmona. merely to the exact quantum of service performed in the case itself, but to the general interests of the navigation and commerce of the country, which are greatly protected by exertions of this nature. The day before the hearing of this suit the defendant offered a sum of one thousand dollars to the promoters, in fuU of all demands, for thts salvage services now sued for. It was made by a notary at tlie office of the promoters. It is limited to the salvage services and makes no tender of costs then fully incurred, and is therefore insufficient. The next day, when the case came on for hearing on the merits, the defendants without notice prayed for acte that they admit the promoters' claim to the amount of one thousand dollars, and have moved that such sum, including costs, which they state had been tendered the day previous by the tender referred to, be deposited in Court. This motion cannot be allowed for two reasons : the first is want of notice ; and the second, that the tender without costs is insufficient both in the notarial tender and in that by motion. I am of opinion that one thousand dollars is an adequate remuneration for the salvage services rendered and I pronounce judgment for that amount with costs. Andrews, Car on, Andrenaand Pentland, for Promoter. Irvine and Pemberton, contra COURT performed in the iti Mtivigation and itly protected by i the hearing of thousand dollars for thrf salvage a notary at tlie ) salvage services incurred, and is >n the case came sndants without the promoters' ollars, and have ?hich they state B tender referred mnotbe allowed notice ; and the iufficient both in I am of opinion remuneration for ounce judgment ad, for Promoter, FOR LOWER CANADA. Fi-iday, 28th September, 1883. ARHAN.—MacMickex. Where two ships in the harbor of Quebec, from the violence of pr x^i trat \' I'JV'' ^"'^ '''='="^^"'«"-^' b.on.ht rnrsuoh proximity that each had a foul berth, both held to be in funlt for rinf adopting the proper course to relieve themselves f rom tS pt lo^ positions, and thereby avoid a collision. ^ Judgment.— Fon. G. Okill Stuart. This suit against the Arran, a British barque of 1 063 tons, has been brought by the owners of the Moen, a Danish Tf Y^^ *"°'' ^'' ^^""'S'' ^"«"'g fr^'" a collision on the 23rd of May last, on the upper ballast ground, in the harbor of Quebec, about ten o'clock at night, as caused by the neghgence of the former. The Arran was laden and had been there from the day previous, held by her starboard anchor until between two and three o'clock in the afternoon of the 23rd. On the north, the Quebec side of the river there lay next to her the Albertine and further in shore the (.atineau The wind was from the east, a gale with a heavy swell ; the tide had but turned to ebb when the Moen m ballast sailed up the river, carrying her upper topsails, passed the Arran between the Albertine am) the Gatineau and dropped her starboard anchor, which broke off with 45 fathoms of chain. Her anchor was then cast and after (Inftmg .he came to. At six o'clock in the evening, the ebb tide, the Arran and the Moen were in such dangerous proximity that when swung to the ebb a collision appeared to be inevitable, an anticipation afterwards realised. The promoters have represented that about four o'clock m the afternoon, when the tide had turned to flood and the Moen had swung to her anchor, the Arran, then four and a X S53 Ahran. 354 CASES IN THE VICE-ADMIRALTY COURT Arban. half cables length lower down the river, began to drag her anchor and ap])roached the Moen until within fifteen fathoms on her poit side, and so gave the latter a foul bertli ; and, further, that about ten o'clock p. m., when the vessels began to swing with the ebb, the An-an collided with the Moen, her jibboom becoming foul of the port main rigging of the Moen and the starboard bow of the Arran coming into contact with the Moen's port side, between her main and mizzeii rigging. The counter allegati(jn of the resptjudents is, that when tlie Moen came to anchor she attempted, but unsuccessfully, to do so to the north-west of the Ariun, but failed, and was so close that she gave her a foul berth. Tliat the Arrau did not drift, but as a matter of precaution, at six o'clock in the afternoon, the tide being flood, she dropped her port anchor with forty-five fathoms of chain. There is no cross action, and no protest was made by the respondents, as no damage appears to have been sustained by the Arran. Upon these issues the evidence has established that the Ar'-au had been at anchor from the day previous and was held upon her starboard anchor, when in the afternoon the Moen was driven from the place where it was intended that she should anchor by the breaking of her chain, to a place more to the south of the Arran and higher up the river. There is no doubt that the two vessels, after the tide had turned to flood, had each of them a foul berth, so much so that at the ebb when the vessels would have to swing with the tide, a collision was inevitable, if they, respectively, held each its position. Upon the questions — 1. Whether the Moen on anchoring gave a foul berth to the Arran ; or, 2. Whether the Arrau afterwards dragged her anchor and drifted up the river with the flood too close to the Muen and so gave her a foul berth, the testimony is unusually conflicting, the discrepancy varying from four and a half cables lengtli, as stated by the witnesses of the promoter, to about a ship's length, as stated by those of the respon- dent, as the distance at which the Moen anchored higher up the river than the Arran. After a very careful con- COURT egan to drag her in fifteen fathoms foul berth ; and, the vessels began th the Moen, her i^ing of the Moen into contact with d mizzeii rigging, is, tluit when the .nsuccessfuUy, to failed, and was That the Arraii , at six o'clock in Iropped her port There is no cross espondents, as no r the Arran. ftblished that the previous and was the afternoon the ivas intended that chain, to a place ler up the river, after the tide had jerth, so much so ive to swing with hey, respectively, — 1, Whether the the Arran ; or, 2. her anchor and lose to the Moen lony is unusually I four and a half of the promoter, )se of the respon- i anchored higher very careful con- FOR LOVVER CANADA. sideration of the matter, it appears to me that although the Moen missed the place of her selection for coming to anchor, she did not come up so close as to give a foul berth as cliarged against her. As respects the Arran, I think that she did drag her anchor but not under sucli circum- stances as to justify the charge of negligence, the gist of tliis action. It is evident that the place first selected by the Moen for anchoring was a safer one for each vesse?, and that, had she not broken her chain and drifted, there would have been no collision. As it was, she lay almost astern of the Arran at the flood. The latter was a laden vessel, and tliere- fore more apt to drag her anchor than one in ballast. The wind Mas a gale, the ballast ground was crowded with vessels. When the Albertine came to anchor before the Moen broke her chain, she had come into collision not only with tlie Arran but also with the Gatincau, and the master of the Albertine lias testified that there were but few of the vessels wliich arrived at the ballast ground at the time, that got off without the loss of an anchor or coming foul of anotlier ship; and the pilot of the Moen has attributed the loss of her anchor to the violence of the gale. I am there fore disposed to attribute the proximity of these vessels at six o'clock on the evening of the 23rd of May t-. the difficul- ties into which they had been forced by wind and tide, rather than to negligence in either; and had the matter rested here, tJie judgment would have been in accordance with such an opinion. But at that time the case had assumed a very different aspect. At six o'clock, and during four hours afterwards, it is certain that these vessels occupied such relative positions until the turn of tide to ebb at ten o'clock, as to render a collision certain. The master of ^he Moen has testified that when the Arran brought up , east of him, she was so close that when the vessels swung there would be a collision, and that without the assistance e of a tug it would have been dangerous for either to drop down the river, owing to the great number of vessels in the vici- nity. He has .^■aid uldu . "We did not think of movin<^, 356 Aruan*. 356 CASES IN THE VICE-ADMIRALTY COURT AuRAN. because our pilot said we were not to blame, and I was aware that if one of the vessels was not moved a collision was inevitable." The chief mate of the Arran was in charge of her during the afternoon until half-past nine o'clock, half an hour before the collision, when her master, who had been absent on business connected with his vessel, on coming on board called out " How the deuce has that ship got so close to us," and he has said, " that he could have chucked a biscuit on board of her. " It is proved that at any time during the four hours that I have mentioned, these vessels could have been relieved from impending danger by the use of a tug. It is plain that one would not give way to the other by employing one, but preferred to stand the consequences of a collision. Now it has been deter- mined that in coming into harbor, it is the duty of mariners to provide for their own safety and that of others, and not to wait till the moment of danger, (a) Also, that it is the duty of every vessel seeing another at anchor, whether in a proper or improper place, and whether properly or improperly anchored, to avoid, if practicable and consistent with her own safety, a collision. (/>) Again, it is necessary that the measures taken to avoid a collision should not only be right, but that they should be taken in time, (c) If circumstances evidently and clearly require prudential measures, and those measures are not taken, and the natural result of such omission is accident, the court would be inclined to hold the party liable, even if such result was only possible, (il) In a cause of damage, both ships were equally blamable for not taking the necessary precaution to prevent accidents^ and the court awarded one-half the value of the plaintiffs loss against the defendant (e), and by the modern (a) Prit. Dig p. 172. No. 407. (6) The Batavier, 4 Notes of oasea 356 2 W. R. p. 407, 10 Jar. 19. (r) The Trent, Spinks, 222. (rf) 2 V. E. 240, 8 Jar. 131, 3 Notes of CB80H 6. («) The Favorite, 5 (Irish Jur 118.) COURT lame, and I was loved a collision e Arran was in 1 half-past nine vlien her master, i with his vessel, 3 deuce has that , "that he could It is proved that have mentioned, from impending at one would not , but preferred to it has been deter- duty of mariners if others, and not dso, that it is the anchor, whether 3tlier properly or )le and consistent in, it is necessary n should not only I in time, (c) If 3quire prudential n, and the natural court would be ch result was only ihips were ec^ually caution to prevent ' the value of the nd by the modern R. 24<\ 8 Jar. 131, 3 9H 5. Favorite, 5 (Irish FOR LOWER CANADA. practice of the Court of Admiralty, the defendant is con- demned in a moiety of the damages of the plaintifl's vessel, (a) It was in the power of each of these vessels to avoid a collision by a precautionary measure — the employment of a tug; in fact there was one near them. That each should quietly wait for a collision is almost inconceivable, a result that miglit liave been attended with loss of life and property. They have thus courted disaster, and must mutually abide the consequences. The judgment of the court is, considering that there is no cross-action, and that the Arran has not suffered damage nor made a protest, but that the injury done by the collision is confined to the Moen, that the amount of the damage be paid by the owners of these vessels respectively, each a moiety, v/ithout costs to either. Charles A. Pentland, for the Moen. Archibald Hay Cook, for the Arran. (a) See Pritchard's Dig. p. 136. No. 31. 357 Arran. 358 CASES IN THE VICE-ADMIKALTY COURT Fnday, 2nd November, 1883. SS. PALMERIN.— Anderson. The Palmerin, a screw steamHhip of 1725 tons register, valued at JEia,500 sterling, when on a voyage from Montreal to Cape Breton, broke her shaft off the Bird Uocks. The SS. Nestorian, valued, with her cargo and freight, at £57,000 sterling, bound from Montreal to Glasgow, took the Palmerin in tow, and towed her safely to Sydney ; in doing so the Nestorian deviated from her voyage, but incurred no special risk. The towage lasted twenty hours. £1160 sterling allowed as salvage remuneration. Palmerin. This was a cause of salvage, promoted by Andrew Allan, William Eae and others, in which they claimed compen- sation for salvage services, rendered by their steamship the Nestorian in the Gulf of St. Lawrence, to the Palmerin, an iron screw steamship in distress. The facts of the case sufficiently appear from the following opinion of the learned judge : The Court. — Hon. 0. 0. Stuart. This suit has been instituted by the owners of the iron screw steamship Nestorian, f)ne of the AUan line, for salvage services to the Palmerin, also an iron screw steamship, while the former was on a voyage from Montreal to Glasgow. The Palmerin is of 1725 tons register, valued at £19,500 stg. She was, on the morning of the second of June last, at the hour of 2.40, in the prosecution of a voyage from Montreal to Little Glace Bay, Cape Breton, in ballast, when her shaft broke, as also her stem tube, and as respects machinery she becjime (^uite powerless. It was, when in this state, that the services for which this suit was brought were rendered. The defence to the claim is that these services were not salvage but towage services, and that the Palmerin could have ;OURT FOR LOWER CANADA. 359 3. 'N. regiator, valued at Hi to Cape Breton, freight, at £57,000 e Palmerin in tow, Nestorian deviated The tt)wage lasted emuneration. Andrew Allan, laimed coinpen- ir steamship the ;he Palmerin, an acts of the case on of the learned art. vners of the iron . line, for salvage steamship, while ,0 Glasgow. The at £19,500 stg. June last, at the e from Montreal t, when her shaft ts machinery she lis state, that the e rendered. The were not salvage erin could have accomplished her voyage by means of her sailing capacity. No tender or otfer has been made. At the time of the accident the Palmi3rin was in the Gulf of St. Lawrence not from the Bird Kocks. Her sails were then set and her course shaped for Sydney, Cape Bre- ton, distant about 140 miles. The same morning she spoke the steamship Winnipeg, whose offer to tow her she declined, because her master would not agree for a fixed sum. She continued under canvas until 11 o'clock on the morning of the 4th of June, about fifty-six hours, when she was about 85 miles from Sydney, and wlien the Nestorian was seen to be crossing her stern, the weather being at the time a dead calm : she hoisted signals which were three balls at the fore- mast head and flags flying at half-mast, to intimate to the Nestorian that her machinery was disabled and that she required assistance. The Nestorian came near and the master of the Palmerin endeavored to obtain her services to tow to Sydney for a specified sum, as in the case of the Lake Winnipeg, an offer which was declined : but finally it was agreed that the amount should be left for the owners of the vessels to settle, and the Palmerin was towed safely into Sydney without accident, except the breaking of a tow line. When taken in tow she was ten miles off Cape liny, Newfoundland, and in 47.35 N. L. by 59.38 W. L. The Nestorian is 2,465 tons register ; she had on board 332 head of cattle ; her cargo was worth about £20,000 sterling, which, witli her own value and freight, have been estimated at ^57,000 sterhng. Her course when she sighted the Palmerin was about S.E. J S., steering towards Cape Eace outside Miquelon. Her course to Sydney with the Palmerin was S.W. The master of the Nestorian has stated the most daugerous part of the navigation between Montreal and Glasgow to be between Capes Ray and Eace, wliere fogs are frequently encountered; that the Palme- rin when taken in tow had two square sails set, which, from the want of wind, were useless, and that the current outside Cape Eay and St. Paul's Island being very strong Palmerin- SCO CASES IX THE VICE-ADMIKALTY COUUT I'ALMEBiN'. might possibly have put the ship on shore. He considered the I'ahuerin to be in a (hmgerous position, especially had a dense fug sot in or a gale from southward and eastward, which generally aceonipanicH the fog auu lius expressed his opinion that the raliueriu, hud he left her withoit assist- ance, would sooner or liiU^r have gone on shore, and life and property been sacriliced, because she could not have been kept oir the laml with her sails or guided to a harbor. His experience has further enabltid him to say that with the propeller outside, as the I'alnierin had, it is impossible to keej) a ship under command and to steer her in any given direction. He has added that he ran great risk in taking the Palmerin into Sydney, as his upper deck was encumbered with cattle, and had it come on to blow, or if dense fog had set in, it would have been a vi • y serious thing fur him. The time occupied in towing the Palmerin into Sydney, including what elapsed afterwaixls, to place the Nestorian on lier course again, was about twenty hours, and in the afternoon of her departure a fog came on winch compelled her to slow her engines and lose time. Considerable evidence has been adduced by the respon- dents, to establish that the Palmerin by means uf her canvas alone could have reached her destination. To accomplish this it appears that the wind must have been constantly fair. She seems, according to the respondent's evidence, to have been distant from Sydney w hen she broke her shaft about 140 miles, and with favorable winds to have made 200 miles before she fell in with the Nestorian, but fifty of which were available on her course. The best evidence of her sailing power and headway, however, would have been found in her log, which has been withheld. It has been attempted to prove also that the Palmerin, with the wind upon a lee shore, could keep from it by taking a course north or south, evidence which I do not find cou- A careful consideration of the testimony has led me to the conclusion that there was but a bare possibiUty of the 4 JOURT He considered , esjieciully liivd (i and eastward, ii3 expressed his without assi.st- ure, ami life and [ not have been a harbor. His r that with the it is imiixHsible teer her in any in great risk in upper deck was an to blow, or if a V( ' y serious ig the Palmerin waixls, to placo it twenty hours, came on which time. [ by the respon- means uf her esiination. To nust have been he respondent's when she broke arable winds to I the Nestorian, urse. The best however, would withheld. It Palmerin, with a it by taking a io not find cou- y has led me to ossibility of the FOU LOWER CANADA. Palrnorin's ivuching her port of destination by her as alone without shipwretiv. The master seems to lia come to the same -onclusion, otherw ise he would not have |)plied to the Nestoriau for aid, after having declined it from the Lake Winnipeg two days before. Had his sailing efforts not hav proved fruitless he would most probalily have persisted in them. With a head wind and her "^ nnv in a dead lock she would have been at the mercy of the winds, w;ivos atid currents, and in the exercise of a sound discretion he availed himself of the aid of li. ■ Nestf)rian. His vessel was in a dead L.ilm when taken in tow, and ^vhat nughthave 8ubse(iuently hai)pened is matter of eonject The respondents have made no offer or as remu- neration for the services rendered by the K orian. They have said that there wiis no salvage service but a towage only, and for this even they have made no offer. That the services in question were salvage services admits of no questii .. The language of Dr. Lushington in the case of the Undaunted is in point : " There is a broad difference between salvors who volunteer to go out, and salvors who are employed by a ship in distress. Salvors who volunteer, go out at their own risk for the chance of earning reward, and if they labor unsuccessfully they are entitled to nothing. The effectual performance of salvage service is tliat wliich gives them a title to salvage remuneration. But if men are engaged by a ship in distress, whether generally or particularly, they are to be paid according to their efforts made, even though the labor and service may not prove beneficial to the vessel. Take the case of a vessel at anchor in a gale of wind hailing a steamer to lie by and take her in tow, if required : The steamer does so, the ship rides out the gale safely without the assistance of the steamer. I should undoubtedly hold in such a case that the steamer was entitled to salvage reward, the how much to be determined by the risk encountered by both vessels, the value uf the property at hazard, and the other circum- stances of the case. The engagement to render assistance 361 Palurhik. ! MICROCOPY RESOlUTK)N TEST CHART (ANSI and ISO TEST CHART No. 2) ^ -APPLIED IfVHGE ^^ 1653 East Moin Street S%= Roctiester. New York 14609 US '-^ (716) 482 - 0300 - Phone 1= (716) 288 - 5989 - Fox 362 CASES IN THE VICE-ADMIRALTY COUKT Palmebin. to a vessel in distress, and the performance of that engage- ment, 80 far as necessary, or so far as possible, establish a title to salvage reward." (a) The how much — the quantum — to be awarded in this suit is now the question. The safety of the Palmerin no doubt required the services of the Nestorian. Property to the amount of £19,500 sterling, her value, was at stake. The Nestorian, her freight and cargo, valued at £57,000 sterling, were more or less jeopardized, not only by deviating from her course but by towing, an occupation for which she was not constructed, and one which necessarily enhanced the ordi- nary risk of navigation. In settling the value of salvage services, the Court has regard to the interest of trade and navigation, and the vast amount of property engaged in it. The necessity of an ample remuneration for salvage services on the inhospitable coast of Newfoundland is too apparent to require comment. The interest, as well of the underwriter as of the shipowner, demands it, and the Court must neces- sarily award it. Should it not do so, and with liberality, owners of steamships would restrict their salvage service to life, and allow vessels to go to wreck and destruction. In coming to a decision, I have maturely weighed the scale of remuneration adopted in the Admiralty Division of the High Court, as accurately as I can. The amount at first claimed by the promoters was £2,000 sterling — after- wards reduced to £1,250 sterling. The promoters have consented to bail in the amount of £1,150 sterling which, by the judgment of the Court, I now award them, with costs. William Cook, Q.C., for the salvors. C. A. Pentland, for the Palmerin. (fl) Lush. p. 92. :OUUT e of that engage- sible, establish a FOR LOWER CANADA. 363 awarded in this the Palraerin no I. Property to the ,s at stake. The £57,000 sterling, eviating from her liich she was not hanced the ordi- /alue of salvage 'est of trade and ty engaged in it. salvage services I is too apparent rthe underwriter ourt must neces- l with liberality, salvage service I destruction, 'ely weighed the niralty Division The amount at sterling — after- promoters have ) sterling which, 'ard them, with Friday, 1-kth December, 1883. SS. NETTLESWOETH.— Tom. Where a vessel under charter was injured by collision caused by another vessel, the charter-party providing that in case of damage the hiring should cease until she could be repaired ; Held, that au action by the charterers againat the oflfending ship for the detention would lie. JuDGMSNT.— Hen. 0. Okill Stuart. The Fiado, a steamship of 985 tons, gross register, while lying at the Island wharf, at Montreal, was injured by the Nettlesworth, of 1,150 tons, also a sLeamship, by striking her on the port side ; her bulwark was broken as also several of her iron plates. She was consequently detained in Montreal for a day. Her destination was Pictou, and in tlie prosecution of her voyage she was detained eight days at Quebec, for survey and for repairs. This suit has been brought by the charterers of the Fiado, who represent that she had been hired to them foi freight for six calendar months with the master and crew, that she was under their exclusive contrijl, and that they were enti- tled to S2,000 in damages, the result of her detention during nine days. The respondents in the first instance objected to the jurisdiction of the Court, and by their act on protest have said that the damages were consequential, the result oidivis major or inevitable accident. As such a statement, if true, can by no means preclude the Court from adjudica- ting in the matter, the act on protest is overruled. The contents of the act on protest were then pleaded. That the Nettlesworth was to blame for the collision does not admit of question. Indeed, it is admitted that she was, and it is in evidence that there was a detention of the Fiado Nettlfs- WOKTH. 364 CASES IN THE VICE-ADMIKAL'iY COURT Xettles- WOBTH, for survey and repairs during nine days. The question now is, can the charterers of the Fiado recover upon the loss sustained by this detention ? By the first condition of the charter party it is stipulated " that the owners shall provide and pay for all provisions and wages of the captain, officers, engineers, firemen and crew ; shall pay for the insurance of the vessel, also for all engine-room stores, and maintain her in a thorough efficient state in hull and machinery for the service." By the second, the charterers were to pav for the use of the vessel at the rate of thirteen shillings and three-pence per gross register ton per calendar month. By the eighth, if the charterers had reason to be dissatisfied with the conduct of the captain, officers, or engineers, the owners should, on receiving particulars of the complaint, investigate the same, and if necessary make a change in the appointments ; and by the eleventh condition it was stipu- lated, that, in the event of loss of time from deficiency of men or stores, break down of machinery or damage, preventing the working of the vessel for more than forty- eight hours, the payment of hire should cease until she should be again in an efficient state to resume her service. It is quite true that the loss of the owners from the sus- pension of the charter-party would be recoverable with other damage against the Nettles worth. " Where, in consequence of a collision a vessel loses the benefit of a charter-party damages are allowed for the loss of the charter-party in addition to demurrage." (a) So that an indemnity may be recovered by the owners of the Fiado against the Nettlesworth for the loss of the hire of the F'- for nine days. An actual loss from detention was su;^' '. by the promoters, the charterers. It has been caused by the wrongful act of the persons in charge of the Nettxesworth, their carelessness and negligence in the management of their vessel — and for this they must have their remedy. By the terms of the eleventh condition, they are pre- (a) The "Star of India," I P. D. 466, Marsden's Collisions at Sea, p. 62. 30URT ie question now r upon the loss iondition of the rs shall provide captain, officers, the insurance of ad maintain her ichinery for the ivere to pay for a shillings and lar mouth. By be dissatisfied p engineers, the the complaint, a change in the )n it was stipu- m deficiency of y or damage, lore than forty- jease until she me her service, •s from the sus- rable with other in consequence a charter-party e charter-party indemnity may io against the ¥'■' for nine Ui.' '. by the caused by the e Nettiesworth, management of e their remedy. , they are pre- sions at Sea, p. 62, FOR LOWER CANADA. precluded ircm redress against the owners of the Fiado, and necessarily they riust fall back upon the Nettiesworth. The judgment overrules the act on protest, and maintains the suit for detention during nine days, with costs. Reference to the registrar to settle the loss. Fitzpatrick, for Promoters. Larue, Q. C, contra. 365 Nkttles- WORTH. 306 CASES IN THE VICE-ADMIRALTY COURT SlONE. Rose C. Friday, \%th January, 1884. SIGNE.— BlERMAN. EOSE C— Gardannes. Two vessels crossing, one on the starboard and the other on the port tack — Held : That the latter did not keep a proper look out and that the former did not keep her course, but ported her helm too late to avoid a collision, and that there was mutual fault. These were causes promoted by the owners of the Rose C. against the barqiie Signe, and by the owners of the Signe against the Rose C, each vessel proceeding against the other, for considerable damage by a collision which took place on the 14th September last, while both vessels were in the Gixlf of St. Lawrence, the jib-boom of the Signe striking the raizzen-mast of the Rose C, and her stem com- ing in on the French barque's starboard quarter. The facts of this case are sufficiently noticed in the fol- lowing opinion of the learned judge : Judgment. — Hon. 0. 0. Stuart Cross-actions of damages have been brought by the owner of the Rose C, a French barque of 419 tons, and the owners of the Signe, a Norwegian barque of 994 tons, for a collision. On the morning of the 14th of September last, these vessels were in the Gulf of St. Lawrence, between Newfoundland and Anticosti, and at about 3.30 were approaching each other. The night was dark, but so clear that a ship's light could be seen three miles off, and the wind north-westerly, a moderate breeze. The Rose C. was on the port tack, her course N.N.E. ^ E., her yards braced sharp to the wind, her speed about three knots, and her lights bright. The Signe was on the starboard tack under all sails, except the flying jib, royals and topgallant staysail, close hauled, on a course W. by S., with a s^eed COURT FOR LOWER CANADA. 36/ 84. ES. the other on the port )er look out and that her helm too late to i'ners of the Roae i^ners of the Sigae ding against the ision which took )oth vessels were )oni of the Signe ndher stem com - larter. loticed in the fol- art. brought by the il9 tons, and tlie )f 994 tons, for a f September last, wrence, between bout 3.30 were lark, but so clear liles off, and the The Rose C. was I E., her yards three knots, and le starboard tack ,1s and topgallant S., with a Sjjeed of about five knots. It was the duty of these vessels respectively, while crossing, to follow the rule of navigation, which directs that the vessel— in this case the Rose C— on the port tack must keep out of the way, while the other, the Signe, on the starboard tack, had to keep her course. The Rose C. did not keep out of the way, nor did the Signe keep her course until the moment of collision. The jib-boom of the Signe came into contact with the mizzen- mast of the Rose C. at about thirty feet from her stern, and the damages resulting to the parties have been estimated at from four to six thousand dollars to the Rose C. and two thousand two hundred dollars to the Signe. The case as represented for the Rose C. is, that the Signe showed no lights, that those she had were improperly placed, that she did not keep her course, and, fiuaUy, that she did not render assistance after the coUision. On the other side it has been contended, that the lookout on board the Rose C. was bad, and that she did not keep out of the way. The facts attending the collision, as represented for the Rose C, are to be found principally in the evidence of her lookout, Vincenco Perricollo, a young man, an Itahan, nineteen years of age, and of her master. The persons on deck were the master, Perricollo, and three others composing the captain's watch. Perricollo was on the lookout on the forecastle, and has said that at the distance of a quarter of mile he saw something dark, a black mass, without know- mg what it was, or on what side it was approaching, and it showed no lights. He left the forecastle instantly and went astern to notify the master, who was on the poop. The master ordered the helm to port, and seeing that the Rose C. would not come round, further ordered her sails aft to be hauled down, but she would not pay off in time, as the dark object which proved to be the Signe struck her ^vith her jibboom. The forepart of her mainmast was carried away ; the stem of the Signe also struck her railing on the starboard side, thirty feet from the stern, her mizzen- mast was broken into three pieces, and the whole came down with a crash, splitting the rudder from top to bottom. Signe. itOSE C. •m;h CASES IN THE VICE-ADMIUALTV COUUT SlONt. Rose C. In these particulars the testimony of th(3 mastp.^ and the others on the watch of the Eose C. corresponds, and ia to the effect also that they saw no lights upon the Signe, and that if there were they would have seen them. After care- fully weighing this evidence by itself, it has seemed to me that the lookout PerricoUo was tardy in seeing the Signe. Although the distance at which he saw her, is said to be a quarter of a mile, or two cables, I think she must have been much closer, and possibly he may have deemed it more prudent to leave his post to find the master instead of hailing the watch, as usual with seamen on the lookout. This supposition is confirmed by the testimony of the master of the Rose C. He seems not to have had time for reflection, or proper action, before the crash came ; and, what is more, he has stated that after the Signe came into collision she passed by, and that he kept her in view on the starboard tack without seeing her lights until day- light, when she was about three miles off. If so, the weather being the same, PerricoUo should have seen her at more than a quarter of a mile off. But, were there any doubt in the matter, it is removed by testimony, positive and to the point, from persons on board the Signe, who have testified that her lights were bright and burning long before, at the time of, and after the collision. Had the Signe been perceived in proper time the Rose C. could have have kept away on a port helm and have passed clear. Referring now to the course taken by the Signe, her case may be determined, I think, by the evidence of the chief mate, who was in charge with his watch. Her lookout reported to him the green light of the Rose C. about a mile and a half off, about two points on the port bow. For the period of about ten minutes he kept this light in view, expecting that she would wear and show her red light, the Signe all the time being kept close to the wind ; but the Rose C, instead of doing so, kept her course on the port tack until her hull was close under the bow of the Signe. When the helm of the Signe was put down, she answered it and luffed, but her sails had not come aback, her topgallant sail :1 COUKT \\e maatfi' and the esponds, and is to »ou the Signe, and hem. After care- has seemed to me seeing the Signe. her, is said to be think she must Y he may have to find the master ith seamen on the by the testimony 3 not to have had :e the crash came ; 3r the Signe came kept her in view r hghts until day- s off. If so, the I have seen her at it, were there any estiraony, positive ■d the Signe, who , and burning long oUision. Had the Rose C. could have s passed clear, the Signe, her case idence of the chief tch. Her lookout )se C. about a mile ort bow. For the ;his light in view, T her red light, the the wind ; but the rse on the port tack ■ the Signe. When le answered it and her topgallant sail Foil LOWER CANADA. only beginning to shiver when the vessels came into con- tact. The chief mate has said that he adopted this course to ease the blow, l,ut it was one, as it appears to me, which had a contrary effect, and had he kept liis course it is quite possible, as the witnesses from on board the Rose C. liave stated, that the Signe would have passed clear and without collision. I„ construing the rules of navigation, due regard must be had to its dangers and to any special cir- cumstances rendering a departure necessary," in order to avoid imme ite danger, (a) Before the opinion of the nautical assessor, by whose advice I am favoured, is given, I may state with reference to the two other points raised on tlie part of the Kuse C, that they^ are without foundation. It has been contended that the lights of the Signe were improperly placed. Very weak testimony on this head has been given, and it is met by overwhelming testimony to the contrary. Again, it has been urged that the Signe after the collision did not stop to render assistance to the Rose C. Tliese vessels were very much disabled, and continued to be so for about three hours before they could put matters sufliciently to rights to proceed on their respective courses, and I see no relsou to impute blame to the Signe v this particular. The opinion of the nautical assessor is as follows :— Question.— When the Rose C. on her port tack, close hauled, was approaching the Signe on her starboard tack, also close hauled, supposing the night to have been suf- ficiently clear to see the hghts of the Signe at one or two miles off, could she have kept out of her way by porting her helm in proper time, or by any other course ? Ansiver.— She could by porting her helm. Even if the master of the Rose C. did not see the liglits of the Signe as he has stated, but saw her hull, he might have put his vessel on the other tack and thus have avoided the collision. Question.— A> the Signe saw the green light of the (a) The Khedive, L. R. 5, App. Cases 876. The Buckhurst, L. R 6 P. D. 162. ■ ' 369 SlONE. R08K C. 370 CASES IN THE VICE-ADMIUALTY COURT. SioNK. Rose C. for a mile or more, luul hIio kept her course close Rose C. to the wind instead of jwrtin},' her helm heforo the collision, would she have passed clear of the IJose C. without accident, or could she have adopted any other course to avoid it ? Anstvfr.—l am not sure, but I think it likely she would have passed clear ; but her proper course was to heave every- thing aback instead of lufting up, and by doing so she would have avoided the collision; for this there was ample time, as the green light of the Rose C. was seen from the Sigue at a distance of a mile and a half before the coUision. Question.— Did the Signe by porting her helm, or other- wise, contribute to the collision ? Answer.— Hhe did,— by porting her helm. Question. — Are one or both of these vessels to blame ? Answer. — I am of opinion that each was in fault. F. GoUHDEAU, Harbor Master. The Coukt.— The opinion of Captain Gourdeau being that both vessels are to blame, in which view of the matter I fully concur, 1 pronounce accordingly, and decree that the damages be aj>portioned equally between the parties, according to the Maritime law,— the amount to be established upon the usual reference. Each party must pay his own costs, (a) From this judgment the owners of the Sigue asserted, on the 25th instant, an appeal to Her Majesty in Her Privy Council, and gave the usual bail. Larue, Q.C., and Panel Angers, for the Rose C. C. A. Pentland, for the Signe. (a) In the cases of the Khedive and Voowaarts, referred to in the note on the preceding page, the House of Lords recently decided that tin unnecessary departure from the regulations, even in the agony of the collision, and though it only possibly contributed to the collision, did not absolve the ship from blame for such departure. The same decision tends to make it somewhat doubtful, thougrh the departure could not possibly have contributed to the disaster, yet if it was unnecessary, whether the ship so departing would not be to blame. As, however, this exact point did not arise in the case, this judgment is no direct authority on the question. See Ttoscoe'a Admir- alty Law and Practice, Ed. of 1882, p. 45. COURT. pt her course close before the collisiou, J. without iiccident, irse to (ivoid it ? it hkely she would tvas to lieave evmy- doitig so she would was anii)le time, as 1 from the Sigue at e collision, her helm, or other- lelra. i'essels to blame ? was in fault. Harbor Master. jourdeau being that )fthe matter I fully :ee that the damages ies, according to the shed upon the usual vn costs, (a) e Signe asserted, on ijesty in Her Privy r the Kose C. it doubtful, thougrli the could not posHibly have li to the disaster, yet if aecessary, whether the Darting would not be to .8, however, this exact lot arise in the case, this is no direct authority on >n. See BoKcoe's Admir- ,nd Practice, Ed. of 1882, APPENDIX. CONTENTS. A.-The Queen's Order in Council, of the 23rd day of August 1883 establishing rules for the Vice- Admiralty Courts in Her Majesty's possessions abroad. B.— The Vice- Admiralty Courts Act, 1863. C-An Act to extend and amend the Vice-Adr.iralty Courts Act. 18o3. D.-Rules for the Vice-Admiralty Courts, in Her Majesty' sions abroad. 8 posses- E.-The Vice-Admirals of Canada, during the period of these reports F.-The Judges of the Vice-Admiralty Court, during the same period. APPENDIX. A. AT THE COURT AT OSBOUNE HOUSE, ISLE OF WIGHT, The 23rd day of August, 1883. PRESENT ; THE QUEEN'S MOST EXCELLENT MAJESTY IN COUNCIL. Whereas there was this day read at the Board a Memorial from the Fight Honourable the Lords Commissioners of the Admiralty, dated the 22ad day of August, 1883, in the words following, viz. : "Whereas by an Act passed in the twenty-second year of Your Majesty's Reign, entitled 'Vice-Admiralty Courts Act, 18G3,' it was amongst other tilings provided that ' Her Majesty ' may, by Order in Council, from time to time establish Kules * touching the practice to be observed in the Vice-Admiralty « Courts, as also Tables of Fees to be taken by the Officers and ' Practitioners thereof for all acts to be done therein, and may ' repeal and alter all existing and all future Rules and Tables ' of Fees, and establish new Rules and Tables of Fees in addition ' thereto or in lieu thereof.' " And whereas it appears to us to be expedient that in lieu of the Rules and Tables of Fees now existing in the Vice- Admiralty Courts, the Rules and Tables of Fees annexed hereto should on and from the first day of January, 1884, be established and be in force in all the Vice-Admiralty Courts. " Now therefore it is most humbly submitted that Your Majesty will be graciously pleased by Your Order in Council to direct that all the existing Rules and Tables of Fees in the Vice-Admiralty Courts be repealed, and that, in lieu thereof, the Rules and Tables of Fees, annexed hereto, shall from the , ISLE OP WIGHT, 883. ESTY IN COUNCIL. lard a Memorial from inersof the Admiralty, the words following, wenty-second year of Imiralty Courts Act, id that ' Her Majesty time establish Kules 1 the Vice-Admiralty in by the Officers and sne therein, and may ire Rules and Tables es of Fees in addition xpedient that in lieu jxisting in the Vice- ' Fees annexed hereto y, 1884, be established lourts. submitted that Your )ur Order in Council Tables of Fees in the that, in lieu thereof, lereto, shall from the APPENDIX. flm day of January, 1884, bo the Rules and Tables of Fees for •11 the Vice- Admiralty Courta." Her Majesty having taken the said Memorial into considera- tion, was pleased, by and with the advioe of Her Privy Council, to approve of what is therein proposed. And tlio lil^ht Hon- curable the Lords Commissioners of the Admiralty are to give the necessary directions herein accordingly. C. L. Peel. 373 Copy op tub Admiralty Board Minute. The necessary steps are to be taken for carrying into eflfeot the provisions of Her Majesty's foregoing Order in Council. A. C. Key. By Command of their Lordships, G. Tryon, Admiralty, 24th September, 1883. T. Bhandreth. 374 APPENDIX. B. Short title. Interpretation of terms. 26 Vict., Cap. 24. An Act to facilitate the Appointment of Vice-Admirals and of Officers in Vice- Admiralty Courts in Her Majesti/'s Pos- sessions abroad, and to confirm the past Proceedings, to extend the Jurisdiction, and to amend the Practice of those Courts. [8th June, 1863.] Whereas it is expedient to facilitate the appointment of Vice- Admirals and of Officers in Vice- Admiralty Courts in Her Majesty's possessions abroad, and to confirm the past proceedings, to extend the jurisdiction, and to amend the practice of those Courts : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as the " Vice- Admir- alty Courts Act, 1863." 2. In the interpretation and for the purposes of this Act (if not inconsistent with the context or subject matter) the following terms shall have the respective meanings hereinafter assigned to them : that is to say, "Her Majesty" shall mean Her Majesty, her heirs and suc- cessors : The "Admiralty" shall mean the Lord High Admiral or the commissioiiers for executing his office : " British possession" shall mean any colony, plantation, settle- ment, island, or territory, being a part of Her Majesty's dominions, but not being within the limits of the United Kingdom of Great Britain and Ireland, or of Her Majesty's possessions in India : " Governor " shall mean the officer for the time being lawfully administering the government of any British possession : "Vice-Admiralty Court" shall mean any of the existing Vice- Admiralty Courts enumerated in the schedule marked A. hereto annexed, or any Vice-Admiralty Court which shall hereafter be established in any British possession : " Ship " shall include every description of vessel used in navigation not propelled by oars only, whether British or foreign : ',e- Admirals and of Uer Majesty's Pos- jst Proceedings, to 'he Practice of those [8th June, 1863.] ppointment of Vice- irte in Her Majesty's oceedings, to extend those Courts : Be it ent Majesty, by and itual and temporal, embled, and by the } the " Vice-Admir- loses of this Act (if atter) the following einafter assigned to her heirs and suc- !igh Admiral or the y, plantation, scttle- rt of Her Majesty's imits of the United or of Her Majesty's time being lawfully British possession : >f the existing Viee- jchedulc marked A. y Court which shall L possession : of vessel used in ly, whether British APPENDIX. Cause " shall include any cause, suit, action, or other proceed- ing instituted in any Vice-Admiralty Court. 3. In any British possession, whore the office of Vice- Admiral IS now or shall at any time hereafter become vacant, the governor of such possession shall be ex officio Vice- Admiraf thereof, until a notiacation is received in the possession that a formal appoint- ment to th It office has been made by the Admiralty in the manner hereinafter mentioned. 4. In any British possession, where the office ol" judge of a Vice-.\dmiralty Court is now or shall at any time hereafter become . vacant, the chief justice, or the principal judicial officer of such possession, or the person for the time being lawfully authorized to act as such, shall be ex officio judge of the Vice-Ad mi rally Court, until a notification is received in the possession tiiat a formal appointment to that office has been made by the Admiralty in the manner hereinafter mentioned. 5. In any British possession, where the office '"registrar or marshal of any Vice-Admiralty Court is now or si. ... at"any time hereafter become vacant, the judge of the Court may, with the approval of the governor, appoint some per-son to the vacant office until a notification is received in the possession that a formal appointment thereto has been made by the Admiralty in the man- ner hereinafter mentioned, and may, for good and reasonable cause, to be approved by the governor, remove the person so appointed. The judge may also appoint some person to act as registrar or marshal during the temporary absence of either of those officers. 6. On any vacancy in the office of judge, registrar, or marshal of any Vice- Admiralty Court, the governor of the British posses- sion in which the Court is established siiall, as soon as is practica- ble, communiciite to one of Her Majesty's principal Secretaries of State the fact of the vacancy, and tiie name of the person succeed- ing or appointed to the vacant office. 7. Nothing in this Act coniained shall be taken to affect the powerof the Admiralty to appoint any Vice-Admiral, or any judge, registrar, marshal, or other officer of any Vice- Admiralty Court, as heretofore, by warrant from the Admiralty, and by letters patent issued under seal of the High Court of Admiralty of fJng- land. 8. No act done by any person in the capacity of judge, regis- trar, or marshal of any Vice- Admiralty Court, which shall not have been set aside by any competent authority before the pass- 375 Appointment of Vice-Admiral. Appointment of judge. Appointment of registrar and marshal. Namos of appiintees, &c. to be notified to the home governmant. Saving the powers of the Admiralty, Past pro- ceedings con» firmed. 376 APPENDIX. Protection of officers. .TiiriBdiction of Vice-Admiralty Courts. Jurisdiction of Vice- Admiralty Courts. Nothing to re- strict existing' jurisdictions. injj; of this Act, shall be held invalid by reason that such person had not been duly appointed^ but all such Acts shall be as valid and efiectual as if done by a person duly appointed. 9. No action, prosecution, or other proceeding shall be brought against any such person by reason of the illegality or informality of any Act hereby declared to be valid and efftictual. 10. The matters in respect of which the Vice-Admiralty Courts shall have jurisdiction are as follow : (1.) Claims for seamen's wages : (2.) Claims for master's wages, and for his disbursements on account of the ship : (3.) Claims in respect of pilotage : (4.) Claims in respect of salvage of any ship, or of life or goods therefrom : (5.) Claims in respect of towage : (6.) Claims for damage done by any ship : (7.) Claims in respect of bottomry or respondentia bonds : (8.) Claims in respect of any mortgage where the ship has been sold by a decree of the Vice-Admiralty Court, and the proceeds are under its control : (9.) Claims between the owners of any ship registered in the possession, in which the Court is established, touching the ownership, possession, employment, or earnings of such ship : (10.) Claims for necessaries supplied, in the possession in which the Court is established, to any ship of which no owner or part owner is domiciled within the possession at the time of the necessaries being supplied : (11.) Claims in respect of the building, equipping, or repairing within any British possession of any ship of which no owner or part owner is domiciled within the possession at the time of the work being done. 11. The Vice- Admiralty Courts shall also have jurisdiction (1.) In all cases of breach of the regulations and instructions relating to Her Majesty's navy at sea : (2.) In all matters arising out of droits of Admiralty. 12. Nothing contained in this Act shall be construed to take away or restrict the jurisdiction conferred upon any Vice-Admi- ralty Court by any Act of Parliament in respect of seizures for breach of the revenuo, customs, trade, or navigation laws, or of the laws relating to the abolition of the slave trade, or to the cap- on that such person its shall be as valid inted. infj shall be brought ;ality or informality t;ctua]. e-Admiralty Courts is disbursements on , or of life or goods identia bonds : re the ship has been ty Court, and the p registered in the lished, touching the r earnings of such possession in which of which no owner e possession at the ipping, or repairing ship of which no n the possession at lave jurisdiction — IS and instructions idmiralty. construed to take n any Vice-Admi- lect of seizures for igation laws, or of ade, or to the cap- .■»F 'n OIX. ture and destruction of pirates and piratical vessels, or any other jurisdiction now lawfully exercised by any such Court; or any jurisdiction now lawfully exercised by any other Court within Her Majesty's dominions. 13. The jurisdiction of the Vice-Admiralty Courts, except where it is expressly confined by this Act to matters arising with- in the possession in which the Court is established, may be exer- cised, whether the cause or right of action has arisen within or beyond the limits of such possession. 14. Her Majesty may, by Order in Council, from time to time, establish rules touching the practice to be observed in the Vice- Admiralty Courts, as also tables of the fees to be taken by the officers and practitioners thereof for all acts to be done therein, and may repeal and alter the existing and all future rules and tables of fees, and establish new rules and tables of fees in addi- tion thereto, or in lieu thereof. 15. A copy of any rules or tables of fees which may at any time be established shall be laid before the House of Commons within three months from the establishing thereof, or if Parlia- ment shall not be then sitting, or if the session shall terminate withm one month from that date, then within one month after the commencement of the next session. 16. The rules and tables of fees in force in any Vice-Admiralty Court shall, as soon as possible after they have been received in the British possession in which the Court is established, be entered by the registrar in the public books or records of the Court, and the books or records in which they are so entered shall at all reasonable time be open to the inspection of the practitioners and suitors in the Court. 17. A copy of the rules and tables of fees in any Vice- Admi- ralty Court shall be kept constantly hung up in some conspicuous place as well in the Court as in the office of the register. 18. The fees established for any Vice- Admiralty Court shall, after the date fixed for them to come into operation, be the only fees which shall be taken by the officers and practitioners of the Court. 19. Any person who shall feel himself aggrieved by the charges of any of the practitioners in any Vice-Admiralty Court, or by the taxation thereof by the officers of the Court, may apply to the High Court of Admiralty of England to have the charges taxed, or the taxation thereof revised. 377 As to matters arising beyond limits of colony. Her Majesty empowered to cstabliHh and alter rules and tables of fees. Rules and tables of fees to be laid before the House of Commons. To be entered in the record.s of the Courts. To be hung up in Court, &o. Established fees to be the only fees taken. Taxation may be revised by the High Court of Admiralty. 378 APPENDIX. Registrar may adminiater oaths. As to the hearing of cross causes. No appeal save from final sen- tence or order. Appeal to be made within six months. Acts repealed. Saving rules established under 2 & 3 W. 4, c. PI. 20. The registrar of any Vice- Admiralty Court shall have power to administer oaths in relation to any matter depending in the Court ; and any person who shall wilfully swear falsely in any pro- ceeding before the registrar, or before any other person authorised to administer oaths in the Court, shall be deemed guilty of per- jury, and shall be liable to all the penalties attaching to wilful and corrupt perjury. 21. If a cause of damage by collision be instituted in any Vice- Admiralty Court, and th« defendant institute a cross cause in res- pect of the same collision, the judge may, on application of either party, direct both causes to be heard at the same time and on the same evidence ; and if the ship of the defendant in one of the causes has been arrested, or security given by him to answer judg- ment, but tlie ship of the defendant in the other cause cannot be arrested, and security has not been given to answer judgment therein, the Court may, if it think fit, suspend the proceedings in the former cause until security has been given to answer judgment in the latter cause. 22. The appeal from a decree or order of a Vice-Admiralty Court lies to Her Majesty in Council ; but no appeal shall bo allowed, save by permission of the judge, from any decree or order not having the force or effect of a definitive sentence or final order. 28. The time for appealing from any decree or order of a Vice- Admiralty Court shall, notwithstanding any existing enactment to the contrary, be limited to six months from the date of the decree or order appealed from ; and no appeal shall be allowed where the petition of appeal to Her Majesty shall not have been lodged in the registry of the High Court of Admiralty and of appeals within that time, unless Her Majesty in Council shall, on the report and recommendation of the judicial committee of the privy council be pleased to allow the appeal to be prosecuted, notwithstanding that the petition of appeal has not been lodged within tne time prescribed. 24. The Acts enumerated in the schedule hereto annexed mark- ed B. are hereby repealed, to the extent therein mentioned, but the repeal thereof shall not affect the validity of any rules, orders, regulations, or tables of fees heretofore established and now in force, in pursuance of the Act of the second and third William the Fourth, chapter fifty-one ; but such rules, orders, regulations, and tables of fees shall continue in force until repealed or altered under the provisions of this Act. APPENDIX. 379 art shall have power r depending in the r falsely iu any pro- r person authorised smed guilty of per- ching to wilful and iituted in any Vice- i cross cause in res- pplication of either ue time and on the dant in one of the im to answer judg- er cause cannot be answer judgment the proceedings in o answer judgment a Vice-Admiralty 10 appeal shall bo iny decree or order sentence or final ar order of a Vice- sting enactment to date of the decree allowed where the ive been lodged in y and of appeals shall, on the report F the privy council, , notwithstanding d within tne time 2to annexed mark- in mentioned, but ' any rules, orders, ished and now in ,nd third William rders, regulations, epealed or altered SCHEDULE A. List of the exwting Vice-Admiralty Courts to which this Act applies. Natal. Antigua. Bahamas. Barbadoes. Bermuda. British Colnmbia. British Guiana. British Honduras. Cape of Good Hope. Ceylon. Dominica. Falkland Islands. Gambia Eiver. Gibraltar. Gold Coast. Grenada. Hong Kong. Jamaica. Labuan. LaiiTos. Nevis. New Brunswick. Newfoundland. New South Wales. New Zealand. Nova Scotia, otherwise Halifax. Prince Edward Island. Queensland. Saint Christopher. Saint Helena. Saint Lucia. Saint Vincent. Sierra Leone. South Australia. Tasmania, formerly called Van Diemen's Land. Tobago. Trinidad. Lower Canada, otherwise Quebec. Vancouver's Island. Malta. Victoria. Mauritius. Virgin Islands, otherwise Tor- Montserrat. tola. Western Australia. 380 APPENDIX. SCHEDULE B, Acts and parts op Acts repealed. Reference to Act. 66 Geo. III. c. 82. 6 Geo. IV. 0. 113. 2 &3 Will. IV. c. 51 6 4 7 Vict. c. 38. Title of Act. An Act to render valid the Judicial Acta of Surrogates of Vice-Admiralty Courts alroad, during Vacancies in Office of Judges of such Courts. An Act t9 amend and conso- lidate the Laws relating to the Abolition of the Slave Trade. An Act to regulate the Prac- tise and the Pees in the Vice - Admiralty Courts abroad, and to obviate doubts as to their Jurisdio tion. An Act to make further Re- gulations for facilitating the hearing Appeals and other Matters by the Judi- cial Committee of the Privy Council. Extent of Repeal. The whole Act, save as regards Her Majesty's Posses- sions in India. Section 29, save as above. The whole Act, save as above. Section 11, so far as it relates to Ap- peals from Vice- Admiralty Courts, save as above. 17 & 18 Vict. c. !>7. An Act for establishing the The whole Act. Validity of certain Pro- ceedings in Her Majesty's Court of Vice Admiralty in Mauritius. APPENDIX. 381 SALED. Extent of Repeal. The whole Act, save as regards Her Majesty's Posses- sions in India. Section 29, save as above. The whole Act, save as above. Section 11, so far aa it relates to Ap. peals from Vice- Admiralty Courts, save as above. The whole Act. c. 30 & 31 Vict., Cap. 45. An Act to extend and amend the Vice-Admiralty Courts Act, 1863. [15th July, 1867.] Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and tt-mporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act may be cited for all purposes as " The Vice- short title Admiralty Courts Act Amendment Act, 1867." 2. This Act shall be read as one Act with the Vice-Admiralty 26 & 27 Vict. c. Courts Act, 1863. 24, applied. 3. In the interpretation and for the purposes of this Act (if Interpretation not inconsistent with the context or subject matter) the following o^ term,, terms shall have the respective meanings hereinafter assigned t^ them ; that is to say : "Judge"' shall mean the person lawfully appointed by the Admiralty to be judge of any Vice-Admiralty Court, or, in default of such appointment, the chief justice or principal judiciifl officer, or the person for the time being lawfully authorized to act as the chief justice or principal judicial officer in the British possession in which such Court is established : " Judicial Powers " shall mean all powers and authorities which may be lawfully exercised by, and all duties by law imposed upon, any such judge in the trial, hearing, or progress of any cause : " Ministerial Powers " shall mean all powers and authorities which may be lawfully exercised by, and all duties by law imposed upon, any such judge, not included under the term " Judicial Powers ; " " Sit " or " Sitting " shall mean sit or sitting for the exercise of judicial powers, whether in Court or in Chambers 4. On the governor of any British possession, who is also vice- Tenure of office aamiral thereof, vacating the office of governor of such possession °* vice-admiral, the office of vice-admiral of the same possession shall thereupon be deemed to be also vacant within the meaning of the third section of the Vice-Admiralty Courts Act, 1863. 382 APPENDIX. Judge may appoint deputy judges. Judicial powers of deputy judges. Deputy judges may sit separ- ately. Judge may sit with deputy judges. Judge to regu- late the pro- ceedings. Tenure of office of deputy judges. Judge may delegate minis- terial powers. Judge may appoint deputy registrars and marshals. Admiralty may revoke appoint- ments. 5. The judge of any Vice-Admiralty Court may from time to time, with the approval in writing of the governor of the British possesision in which the Court is established, appoint one or more deputy judge or judges to assist or represent him in the execution of his judicial powers. 6. It shall be lawful for any such deputy judge to exercise all the judicial powers of the judge ; and all acts done by such deputy judge shall be as valid and effectual, to all intents and purposes, as if they had been done by the judge; and all orders or decrees made by such deputy judge shall be subject to the same right of appeal in all respects as if they had been made by the judge. 7. Any deputy judge may sit at the principal seat of govern- ment or elsewhere in the possession at the same time that the judge or any other deputy judge is sitting, and either at the same or at any other place in such possession, and whether the judge is or is not at that time within the possession. 8. The judge may, if he thinks fit, require any such deputy judge or judges to sit with him in the same Court, and in such case the decision of the majority, or, if they are equally divided in opinion, the decision of the judge, shall be the decision of the Court ; and such decision shall be subject to the same right of appeal in all respects as if it had been made by the judge alone. 9. The judge may direct at what place and time any such deputy judge shall sit, and what causes shall be heard before him, and generally make such arrangements as to him shall seem proper as to the division and despatch of the business of the Court. 10. The judge may, if he thinks fit, with the approval in writing of the governor, at any time revoke the appointment of any such deputy judge or judges, but the appointment shall not be deter- mined by the occurrence of a vacancy in the office of the judge. 11. The judge may, if he thinks fit, from time to time, delegate all or any of his ministerial powers to any such deputy judge or judges. 12. The judge may, from time to time, if he thinks fit, appoint any competent persons to act respectively as deputy registrars and deputy marshals of the Court, and may, if he thinks fit, at any time revoke any such appointment, but the appointment shall not be determined by the occurrence of a vacancy in the office of the judge, 13. Notwithstanding anything contained in this Act, it shall be lawful for the Admiralty, if they think fit, at any time to APPENDIX. 888 may from time to rnor of the British ppoint one or more m in the executioQ ;e to exercise all the r such deputy judge and purposes, as if irs or decrees made ,me right of appeal ' judge. pal seat of govern- ime time that the either at the same whether the judge s any such deputy 3ourt, and in such TB equally divided the decision of the the same right of the judge alone, ind time any such heard before him, n shall seem proper of the Court, approval in writing tment of any such shall not be deter- Bce of the judge, le to time, delegate h deputy juds^e or tliinks fit, appoint )uty registrars and nks fit, at any time ment shall not be ! office of the judge. this Act, it shall t, at any time to i revoke the appointment of any deputy judge, deputy registrar, or deputy marshal appointed under this Act. 14. Any deputy judge, deputy registrar, or deputy marshal, appointed under this Act, shall be entitled to the same fees in respect of iiny duty performed by him as would be lawfully payable to the judse, registrar, or marshal respectively for the performance of the same duty. 15. All persons entitled to practice as advocates, barristers-at- law, proctors, attomeys-at-law, or solicitors in the superior Courts of a British possession, shall be entitled to practice in the same respective capacities in the Vice-Admiralty Court or Courts of sucli possession, and shall have therein all the rights and privileges respectively belonging to advocates, barristers-at-law, proctors, attorneys-at-law, and solicitors, and shall in like manner be sub- ject to the authority of tlie person for the time being lawfully exercising the office of judge of such Court. 16. It shall be lawful for Her Majesty to empower the Admi- ralty, by commission under the Great Seal, to establish one or more Vice-A imiralty Courts in any British possession, notwith- standing that such possession may have previously acquired inde- pendent legislative powers ; and the jurisdiction and authority of all the existing Vice-Admimlty Courts are hereby declared to bo confirmed, to all intents and purposes, notwithstanding that the possession in which any such Court has been established may at the time of its establishment have been in possession of legislative powers. 17. The Vice-Admiralty Courts Act, 1863, shall, together with this Act, apply to any Vice- Admiralty Court now established or hereafter to be established in the Straits Settlements. 18. The limitation of the time allowed for appeals contained in the twenty-third section of the Vice- Admiralty Courts Act, 1863, shall be held to apply to all decrees or orders pronounced in any Vice-Admiralty Court now established or hereafter to be established in any of Her Majesty's possessions in India. Deputies to receive fees. BarriHters and solicitors entitled to practise iu Vic('-Admiralty Courts. Her Majesty may establish a Vice- Admiralty Court in a posRession having legis- lative powers. Extended to the Straits Settlements. 26 & 2r Vict. c. 24, s. 23. extended to appeals from Vice-Admiralty Courts in In- dian poesessions. 384 APPENDIX. D. RULES FOR THE VICE-ADMIRALTY COURTS IN HER MAJESTY'S POSSESSIONS ABROAD. 1. In the construction of these rules, and of the forms and tables of fees annexed thereto, the following terms shall (if not in- consistent with the context or subject matter) have the respective meanings hereinafter assigned to them, that is to say : — " Possession " shall mean any colony, plantation, settlement, island, or territory, being a part of Her Majesty's dominions, but not being within the limits of the United Kingdom of Great Britain and Iteland ; " Court ' shall mean any Vice-Adminilty Court now existing or which shall hereafter be established in any possession ; " Registry " shall mean the registry of the court, or any dis- trict registry thereof; " Judge " shall mean the judge of the court, or any person law- fully authorised to act as judge thereof; " Registrar " shall mean the registrar of the court, or any deputy or assistant registrar thereof; '• Marshal " shall mean the marshal of the court, or any deputy or assistant marshal thereof; "Action" shall mean any action, cause, suit, or other pro- ceeding instituted in the court ; " Counsel " shall mean any advocate, barrister-at-law, or other person entitled to practise in the court ; " Solicitor " shall mean any proctor, solicitor, or attorney entitled to practise in the court ; "Plaintiff" shall inclade the plaintiff's solicitor, if he sues by a solicitor ; " Defendant " shall include the defendant's solicitor, if he appears by a solicitor ; "Party" shall include the party's solicitor, if he sues or appears by a solicitor ; " Ship " shall include every description of vessel used in navi- gation not propelled by oars only ; " Month " shall mean calendar month. APPENDIX. 385 TY COURTS IN S ABROAD. d of the formfl and iTvaa shall (if not in- I have the respective is to say : — mtation, settlement, Majesty's dominions, United Kingdom of Court now existing 1 any possession ; e court, or any dis- t, or any person law- s' the court, or any court, or any deputy suit, or other pro- ster-at-law, or other licitor, or attorney icitor, if he sues by it's solicitor, if he tor, if he sues or vessel used in navi- ACTIONS. 2. Actions shall be of two kinds, actions U rem and actions in personam. 3. Actions for condemnation of any ship, boat, car^o, proceeds, slaves, or eflFecU, or for recovery of any pecuniary forfeiture or penalty, shall be instituted in the name of the Crown 4. All actions shall be numbered in the order in which they are instituted, and the number given to any action shall be the dis- tinguishing number of the action, and shall be written or printed on all documents in the action as part of the title thereof. Forms Of the title of an action will be found in the Appendix hereto JNos. 1, 2, and 3. ' WRIT OF SUMMONS. 5. Every action shall be commenced by a writ of summons, which, before being issued, shall be indorsed with a statement of the nature of the claim, and of the relief or remedy required, and of the amount claimed, if any. Forms of writ of summons and of the indorsements thereon will be found in the Appendix hereto JM08. 4, 5, fa, and 7. 6. In an action for seaman's or master's wages, or for masters wages and disbursements, or for necessaries, or for bottomry or in any action in which the plaintiff desires an account, the indorse- ment on the writ of summons may include a claim to have au account taken. 7. The writ of summons shall be indorsed with the name and address of the plaintiff, and with an address, to be called au address for service, not more than three miles from the re astrv at which it shall be sufficient to leave all documents required t^ be served upon him. 8. The writ of summons shall be prepared and indorsed by the plaintiff, and shall be issued under the seal ol the court, and a copy of the writ and of all the indorsements thereon, signed by the plaintiff, shall be left in the registry at the time of sealin-^ the writ. ° 9. The judge may allow the plaintiff to amend the writ of summons and the indorsements thereon in such manner and on such terms as to the judge shall seem fit. Z zu APPENDIX. SERVICE OF WRIT OF SUMMONS. 10. Tn an act 'on in rem, the writ of Kumiiions shall be Bcrvorl— (a) ui- n ship, or upon ciirj^n, Ireiglit, or other property, it'th.^ cargo 'tr other property in on board a ship, by atUcliiiif; the writ for n sit" Tt time to the niainuiuKt or the Hinf,'le mast, or to some oti "• coDHpituouH part ol'tlic whip, and by leaving a copy of the writ attached thereto. (i) upon cargo, freight, or other property, if the cargo or othor property is not on board ri ship, by uttachiug tlic writ for u short time to such carf{0 or property, and by leavinu' a copy of the writ attached thereto, (c) upon freight in the hands of any person, by showing the writ to hiui and by Uaving with him a copy thereof. ((howing the writ to the registrar and by leaving with him a copy thereof. 11. It access cannot be obtained to tlie property on which it is to be served, the writ may be served by showing it to any person appearing U) be in charge of such property, and by leaving with bim a copy of the writ. 12. In an action tn personam, the writ of summons shall bo served by showing it to the defendant, and by leaving with him a copy of the writ. 13. A writ of summons nj^ainst a firm may be served upon any member of the firm, or upon any person appearing at the time of service to have tlie management of the business of the firm. 14. A writ of summons against a corporation or a public com- pany may be served in tiie mode, if any, provided by law for ser- vice of any other writ or legal process upon such corporation or company. 15. Where no such provision exists, a writ of summons against a corporation may be served upon the mayor or other he&d officer, or upon the town clerk, clerk, treasurer, or secretary of the cor- poration, and a writ of summons against a public company may be served upon the secretary of the company, or > ry bo left at the office of the company. 16. If the person to be served is under disabii: y, ':r u'fo. any cause personal service cannot, or cannot promptly, be effected, or if in any action, whether in rem or in personam, there la any doubt or difficulty as to the person to be served, or as to the mode APPENDIX. 387 «0N8. tiH Hhall he. nerved — ther proiKTty, if tlit! I Hhip, by lUtaoliiug nimiHt or tlio wiiifilo Uiftlie whip, lUiJ by if'tbe carj,'o or other tufbium tlie writ for y, and by K'avini: a (on, by showing the I copy thereof. writ to the registrar jf. perty on which it is ing it to any person lud by leaving with r summons shall be y leaving with him be served upon any iiring at the time of SB of the firm, ion or a public com- ided by law for ser- Buch corporation or of summons against >r other head officer, ecretary of the cor- ublic company may ', or ui'iy bo left at ,bii: 'I'fo* _,,, .-„. any ptly, be effected, or onam, there is any I. or as to the mode of service, the judge may order upon whom, or in what manner Borvice iH to be made, or may order notice to be given i,, lieu of Bervice. 17. The writ of summons, whether iMr«wiort/i;>er»onam, may bo served hy the piaintiflf or his agent within ,ix m mthx from the dutn thereof, and shall, afler service, bo filed with a certifi- cate ol Hcrvicr indorsed thereon. 18. The certificate shall state the date and mode of service, and shall he signed by the p«.rson who served the writ. A form' 0^ etvtilioatt. 01 service will be found in the Appendix hereto, APPEARANCE. 19. A party appearing to a writ ..f summons shall file an appear- ance at the place directed in the writ. 2ft. A party not appearing within the time limited by the writ m .y, by consent of the other parties or by permission of theju.lgo, appear at any time on such terms as the judge shall order. 21. If the party appearing has a set-off or counterclaim against the piamtiff, he may indorse on his appearance a statement of the nature thereof, and of the reliefer remedy required, and of the amount, if any, of the set-off or counterclaim. But if, m the opinion or- the judge, such set-ott'or counterclaim cannot' be con- veniently disposed of in the action, the judge may order it to be struck out. 22. The appearance shall be signed by the party appearing, and shall state his name and address, and an address, to be called an address for service, not more than three miles from the registry, at which it shall be sufficient to leave all documents re- quired to be served upon him. Forms of Appearance and of Indorsement of .set-off or counterclaim will be found in the Ap- pendix hereto, Nos. 9 and 10. PARTIES. 23. Any number of pi^rsons having interests of the same nature arising out of the same matter may be joined in the same action whether as plaintiffs or as defendants, 24, The judge may order any person who is interested in the action, though not named in the writ of summons, to come in either as plaintiff or ab defendant. 388 APPENDIX. 25. For the purposes of the last preceding rule an underwriter or insurer shall be deemed to be a person interested in the action. 26. The judge may order upon what terms any person shall come in, and what notices and documents, if any, shall be given to and served upon him, and may give such further directions in the matter a^. to him shall seem fit. CONSOLIDATION OP ACTIONS. 27. Two or more actions in which the questions at issue are substantially the same, or for matters which might properly be combined in one action, may be consolidated by order of the judge upon such terms as to him shall seem fit. 28. The judge, if he thinks fit, may order several actions to be tried at the same time, and on the same evidence, or the evi- dence in one action to be used as evidence in another, or may order one of several actions to be tried as a test action, and the other actions to be stayed to abide the result. WARRANTS. 29. In an action in rem, a warrant for the arrest of property may be issued by the registrar at the time of, or at any time after the issue of the writ of summons, on an affidavit being filed, as prescribed by the following rules. A form of aflidavit to lead war- rant will be found in the Appendix hereto, No. 11. 30. The affidavit shall state the nature of the claim, and that the aid of the court is required. 31. The affidavit shall also state — (a) In an action for wages, the national character of the ship, and if the ship is foreign, that notice of the action has been served upon a consular officer of the State to which the ship belongs, if there is one resident in the Possession : (b) In an action for necessaries, or for building, equipping, or repairing any ship, the national character of the ship, and that, to the best of tlie deponent's belief, no owner or part owner of the ship was domiciled in the Pos.session at the time when the necessaries were supplied or the work was done: (c) In an action between co-owners relating to the ownership, po8,ses8ion, employment, or earnings of any ship registered in the Possession, the port at which the sliip is registered and the number of shares in the ship owned by the party proceeding. APPENDIX. 389 rule an underwriter •ested in the action. IS any person shall any, shall be given irther directions in jstions at issue are might properly be f order of the judge r several actions to vidi'uco, or the evi- in another, or may test action, and the 1 arrest of property >r at any time after avit being filed, as ffidavit to lead war- .11. bhc claim, and that aracter of the ship, ) of the action has the State to which t in the Possession : Iding, equipping, or ter of the ship, and f, no owner or part le Possession at the ed or the work was ; to the ownership, any ship registered e ship is registered )wned by the party 32. In an action for bottomry, the bottomry bond in original, and, if it is in a foreign language, a translation thereof, shall be produced for the inspection and perusal of the registrar, and a copy of the bond, or of the translation thereof, certified to be cor- rect, shall be annexed to the affidavit. 33. The registrar, if he thinks fit, may issue a warrant, al- though the affidavit does not contain all the prescribed particu- lars, and, in an action for bottomry, although the bond has not been produced ; or he may refuse to issue a warrant without the order of the judge. 34. Tiie warrant shall be prepared in the registry, and shall be signed by the registrar, and issued under the seal of the court. A form of warrant will be found in the Appendix hereto, No. 12, 35. The warrant shall be served by the Marshal, or his officer, in the manner prescribed by these rules for the service of a writ of summons in an action in rem, and thereupon the property shall be deemed to be arrested. 36. The warrant may be served on Sunday, Good Friday, or Christmas Day, as well as on any other day. 37. The warrant shall be filed by the Marshal within oivi week after service thereof has been completed, with a certificate of service indorsed thereon. 38. The certificate shall state by whom the warrant has been served, and the date and mode of service, and shall be signed by the Marshal. A form of certificate of service will be found in the Appendix hereto, No. 13. BAIL. 39. Whenever bail is required by these rules, it shall be given by filing one or more bail-bonds, each of which shall be signed by two sureties, unless the judge shall, on special cause shown, order that one surety shall suffice. 40. Every bail-bond shall be prepared in the registry and shall be signed before the registrar, or by his direction before a clerk in the registry, or before a commissioner appointed by the court, to take bail. Forms of bail-bond and commission to take bail will be found in the Appendix hereto, Nos. 14 and 15. 41. Sureties may attend to sign a bond either separately or together. 42. If bail is taken before a commissioner, the sureties shall justify by affidavit. 390 APPENDIX. 43. The commission to take bail and the affidavits of justifi- cation shall be prepared in the registry, and issued with tlie bail- bond, and shall with the bail-bond, when executed, be returned to the registry by the commissioner. 44. No commissioner shall be entitled to take bail in any actioa in which he, or any person in partnership with him, is acting as solicitor or agent. 45. Before filing a bail-bond, notice of bail shall be served upon the adverse party, and a certificate of such service shall be in- dorsed on the bond by the party filing it. A form of Notice of Bail will be found iu the Appendix hereto. No. 16. 46. If the adverse party is not satisfied with the sufficiency of any surety, he may file a notice objecting to such surety, or re- quiring him to justify, if he has not already done so. Forms of Notice to Justify, of Affidavit of Justification, and of Notice of Objection to Bail will be found in the Appendix hereto, Nos. 17, 18 and 19. EELEASE8. 47. A release for property arrested by warrant may be issued by order of the judge. 48. A release may also be issued by the registrar, unless there is a caveat outstanding against the release of the property — (a) On payment into court of the amount claimed, or of the appraised value of the property arrested, or, where cargo is arrested for freight only, of the amount of the freight verified by affidavit : (b) On one or more bail-bonds being filed for the amount claimed, or for the appraised value of the property arrest- ed ; and on proof that twenty-four hours' notice of the names and addresses of the sureties has been previously served on the party at whose instance the property has been arrested : (c) On the application of the party at whose instance the pro- perty has been arrested : (rf) On a consent in writing being filed signed by the party at whose instance the property has been arrested : (e) On discontinuance or dismissal of the action in which the property has been arrested. affidavits of justifi- 3sued with the bail- ited, be returned to :e bail in any action ;h him, is acting as hall be served upon jervice shall be in- L form of Notice of 1.16. h the sufficiency of such surety, or re- lone so. Forms of 1, and of Notice of ix hereto, Nos. 17, ant may be issued istrar, unless there lie property — claimed, or of the , or, where cargo is int of the freight I for the amount le property arrest- >urs' notice of the is been previously the property has I instance the pro- d by the party at rested : tion in which the APPENDIX. 391 49. Where property has been arrested for salvage, the release shall not be issued under the foregoing rule, except on discon- tinuance or dismissal of the action, until the value of the property arrested has been agreed upon between thep.irties or determined by the judge. 50. The registrar may refuse to issue a release without the order of the judge. 51. The release shall be prepared in the registry, and shall be signed by the registrar, and issued under the seal of the court. A form of release will be found in tlie Appendix hereto. No. 20. 52. The release shall be served on the Marshal, either person- ally, or by leaving it at his office, by the party by whom it is taken out. 53. On service of the release and on payment to the Marshal of all fees due to and charges incurred by him in respect of tlie arrest and custody of the property, the property shall be at once released from arrest. PEELIMINARY ACTS. 54. In an action for da!nage by collision, each party shall, within one week from an appearance being ent<;red, file a Pri'- liminary Act, sealed up, signed by the party, and containing a statement of the following particulars : (1) The names of the ships which came into collision, and the names of their masters ; (2) The time of the collision ; (3^ The place of the collision ; (4) The direction and force of the wind ; (5) The state of the weather ; (6) The state and force of the tide ; (7) The course and speed of the ship when the other was first seen ; (8) The lights, if any, carried by her ; (9) The distance and bearing of the other ship when first seen ; (10) The lights, if any, of tiie other ship which were first seen ; (11) The lights if any, of the other ship, other than those first seen, which came into view before the collision ; (12) The measures which were taken, and when, to avoid the collision ; (13) The parts of each ship which first came into collision ; (14) What fault or default, if any, is attributed to the other ship. 392 APPENDIX. PLEADINGS. 55. Every action shall be heard wi»;hout pleadings, unless the judge shall otherwise order. 56. If an order is made for pleadings the plaintiff" shall, within one week from the date of the order, file his petition, and, within one week from the filing of the petition, the defendant shall file his answer, and within one week from the filing of the answer the plaintiff shall file his reply, if any ; and there shall be no plead- ing beyond the reply, except by permission of the judge. 57. The defendant may, in hi.« .nswer, plead any set-off or counterclaim. But if, in the opin. n of the judge, such set-off or counterclaim cannot be convenient!/ disposed of in the action, the judge may order it to be struck out. 58. Every pleading shall be divided into short paragraphs, numbered consecutively, which shall state concisely the facts on which the party relies ; and shall be signed by the party filing it. Forms of pleadings will be found in the Appendix hereto, jSTo. 21. 59. It shall not be necessary to set out in any pleading the words of any document referred to therein, except so far as the precise words of the document are material. 60. Either party may apply to the judge to decide forthwith any question of fact or of law raised by any pleading, and the judge shall thereupon make such order as to him shall seem fit, 61. Any pleading may at any time be amended, either by con- sent of the parties, or by order of the judge. INTERROGATORIES. 62. At any time before the action is set down for hearing any party desirous of obtaining the answers of the adverse party on any matters material to the issue, may apply to the judge for leave to administer interrogatories to the adverse party to be answered on oath, and the judge may direct within what tim-- and in what way they shall be answered, whether by affidavit or by oral examination. 63. The judge may order any interrogatory that he considers objectionable to bo amended or struck out; and if the party interrogated omits to answer or answers insufficiently, the judge may order him to answer, or to answer further, and either by affidavit or by oral examination. Forms of interrogatories and of answers will be found in the Appendix hereto, Nob. 22 and 23. )leadings, unless the )laintift" shall, within petition, and, within I defendant shall file ng of the answer the "e shall be no plead- the judge. )lead any set-off or udge, such set-off or of in the action, the > short paragraphs, mcisely the facts on 7 the party filing it. ndix hereto, No. 21. n any pleading the ixcept so far as the to decide forthwith ading, and the judge all seem fit. aded, either by con- own for hearing any le adverse party on y to the judge for Iverse party to be ithin what timo and r by aflSdavit or by y that he considers and if the party Sciently, the judge her, and either by interrogatories and to, Nob. 22 and 23. APPENDIX. 393 DISCOVERY AND IXSPECTION. 64. The judge may order any party to an action to make discovery, on oath, of all documents which are in his possession or power relating to any matter in question therein. 65. The aflSdavit of discovery shall specify which, if any, of the documents therein mentioned the party objects to produce. A form of affidavit of discovery will be found in the Appendix hereto, No. 24. 66. Any party to an action may file a notice to any other party to produce, for inspection or transcription, any document in his possession or power relating to any matter in question in the action. A fr m of notice to produce will be found in the Appendix hereto, No. 25. 67. If the party served with notice to produce omite or refuses to do so within the time specified in the notice, the adverse party may apply to the judge for an order to produce. ADMISSION OF DOCUMENTS AND FACTS. 68. Any party may file a notice to any other party to admit any document or fact (saving all just exceptions), and a party not admitting it after such notice shall be liable for the costs of proving the document or fact, whatever the result of the action may be, unless the taxing ofiicer is of opinion that there was sufficient reason for not admitting it. Forms of notice to admit will be found in the Appendix hereto, Nos. 26 and 27. 69. No costs of proving any document shall be allowed, unless notice to admit shall have been previously given, or the taxing officer shall be of opinion that the omission to give such notice was reasonable and proper, SPECIAL CASE. 70. Parties may agree to state the questions at issue for the opinion of the judge in the form of a special case. 71. If it appears to the judge that there is in any action a question of law which it would be convenient to have decided in the first instance, he may direct that it shall be raised in a special case or in such other manner as he may deem expedient. 72. Every special case shall be divided into paragraphs, numbered consecutively, and shall state concisely such facts and documents as may be necessary to enable the judge to decide the question at issue. 394 APPENDIX. 73. Every special case shall be signed by the parties, and may be filed by any party, MOTIONS. 74. A party desiring to obtain an order from the judge shall file a notice of motion with the aflSdavits, if any, on which he intends to rely. 75. The notice of motion shall state the nature of the order desired, the day on which the motion is to be made, and whether in court or in chambers. A form of notice of motion will be found in the Appendix hereto, No. 28. 76. Except by consent of the adverse party, or by order of the judge, the notice of motion shall be filed twentt/-/our hourg at least before the time at which the motion is made. 77. When the motion comes on for hearing, the judge, after hearing the parties, or, in the absence of any of them, on proof that the notice of motion has been duly served, may make such order as to him shall seem fit. 78. The judge may, on due cause shown, vary or rescind any order previously made. TENDERS. 7». A party desiring to make a tender in satisfaction of the whole or any part of the adverse party's claim shall pay into court the amount tendered by him, and shall file a notice of the terms on which the tender is made. bO. Within a week from the filing of the notice the adverse party shall file a notice, stating whether he accepts or rejects the tender, and if he shall not do so, he shall be held to have rejected it. P'orrns of notice of tender and of notice accepting or rtjecting it will be found in the Appendix hereto, Nos. 29 and 30. 81. Pending the acceptance or rejection of a tender, the pro- ceedings shall be suspended. EVIDENCE. 82. Evidence shall be given either by affidavit or by oral examination, or partly in one mode, partly in another. 83. Evidence on a motion shall in general be given by affidavit, and at the hearing by the oral examination of A'itnesses; but the mode or modes in which evidence shall be given, either on any motion or at the hearing, may be determiued either by consent of the parties, or by order of the judge. he parties, and may rom the judge shall ' any, on which ho lature of the order made, and whether of motion will be ty, or by order of 1 twenty-four hourt I made, g, the judge, after ' of them, on proof d, may make such ary or rescind any satisfaction of the aim shall pay into file a notice of the notice the adverse iepts or rejects the I be held to have notice accepting or «, Nos. 29 and 30. a tender, the pro- idavit or by oral nother. ;iven by aflSidavit, /fitnesses ; but the rea, either on any either by consent APPENDIX. 395 34. The judge may order any person who has made an affidavit in an action to attend for cross-examination thereon before the judge, or the registrar, or a commissioner specially appointed. 85. Witnesses examined orally before the judge, the registrar, or a commissioner, shall be examined, cross-examined, and re- examined in such order as the judge, registrar, or commissioner may direct ; and questions may be put to any witness by the judge, registrar, or commissioner, as the case may be. 86. If any witness is examined by interpretation, such inter- pretation shall be made by a sworn interpreter of the court, or by a person previously sworn according to the form in the Appen- dix hereto, No. 31. OATHS. 87. The Judge may appoint any person to administer oaths in Vice-Admiralty proceedings generally, or in any particular pro- ceedings. Forms of Appointments to administer oaths will be found in the Appendix hereto. No. 32. 88. If any person tendered for the purpose of giving evidence objecrs to take an oath, or is objected to as incompetent to take an oath, or is by reason of any defect of religious knowledge or belief incapable of comprehending the nature of an oath, the judge or person authorised to administer the oath shall, if satis- fied that the taking of an oath would have no binding efifect on his conscience, permit him, in lieu of an oath, to make a declara- tion. Forms of oath, and of declaration in lieu of oath, will be found in the Appendix hereto, Nos. 33 and 34. AFFIDAVITS. 89. Every affidavit shall be divided into short paragraphs numbered consecutively, and shall be in the first person. 90. The name, address, and description of every person making an affidavit shall be inserted therein. 91. The names of all the persons making an affidavit, and the dates when, and the places where it is sworn, shall be inserted in the jurat. 92. When an affidavit is made by any person who is blind, or who frc" his signature or otherwise appears to be illiterate, the person before whom the affidavit is sworn shall certify that the affidavit was read over to the deponent, and that the deponent appeared to understand the same, and made his mark or wrote 396 APPENDIX. his signature thereto in the presence of the person before whom the afiBdavit was sworn. 93. When an affidavit is made by a person who does not speak the English language, the affidavit shall be taken down and read over to the deponent by interpretation either of a sworn inter- preter 01 the court, or of a person previously sworn faithfully to interpret the affidavit. A form of jurat will be found in the Appendix hereto, No. 35. 94. Affidavits may, by permission of the judge, be usud as evidence in an action, saving all just exceptions. (1.) If sworn to, in the United Kingdom of Great Britain and Ireland, or in any Possession, before any person author- ised to administer oaths in th. said United Kingdom or in .such Possession respectively ; (2.) If sworn to, in any place not being a part of Her Majesty's dominions, before a British minister, consul, vice-consul, or notary public, or before a judge or magistrate, the signature of such judge or magistrate being authenticated by the official seal of t^^- court to which he is attached. 95. The reception of any affidavit as evidence may be objected to, if the affidavit has been sworn before the solicitor for the party on whose behalf it is offered, or before a partner or clerk of such solicitor. EXAMINATION OF WITNESSES BEFORE TRIAL, 96. The judge may order that any witness, who cannot conve- niently attend at the trial of the action, shall be examined previously thereto, before either the judge, or the registrar, who shall have power to adjourn the examination from time to time, and from place to place, if he shall think necessary. A form of order for examination of witnesses will be found in the Appendix hereto. No. 36. 97. If the witness cannot be conveniently examined before the judge or the registrar, or is beyond the limits of the Possession, the judge may order that he shall be examined before a commis- sioner specially appointed for the purpose. 98. The commissioner shall have power to swear any witnesses produced before him for examination, and to adjourn, if neces- sary, the examination from time to time, and from place to place. A form of commission to examine witnesses will be found in the Appendix hereto. No. 37. I person before whom n who does not speak taken down and read ler of a sworn inter- f sworn faithfully to ill be found in the le judge, be usud as 9ns. of Great Eritain and e any per.son author- iid United Kingdom ng a part of Her tish minister, consul, before a judge or judge or magistrate seal of t^" court to nee may be objected he solicitor for the e a partner or clerk ?ORE TRIAL. , who cannot conve- 3hall be examined r the registrar, who from time to time, lessary. A form of nd in the Appendix xamined before the 3 of the Possession, d before a commis- wear any witnesses ) adjourn, if neces- rom place to place, ill be found in the APPENDIX. 397 99. The parties, their counsel and solicitors, may attend the examination, but, if counsel attend, tiie fees of only one counsel on each side shall be allowed on taxation, except by order of the judge. 100. The evidence of every witness shall be taken down iu writing, and shall be certified as correct by the judge, or registrar, or by the commissioner, as the case may be. 101. The certified evidence shall be lodged in the registry, or if taken by commission, shall forthwith be transmitied by the commissioner to the registry, together with his commission. A form of return to commission to examine witnesses will be found in the Appendix hereto, No. 38. 102. As soon as the certified evidence has been received in the registry, it may be taken up and filed by either party, and may be used as evidence in the action, saving all just exceptions. SHORTHAND WRITER. 103. The judge may order the evidence of the witnesses, whether examined before the judge or the registrar, or a com- missioner, to be taken down by a shorthand writer, who shall have been previously sworn faithfully to report the evidence, and a transcript of the shorthand writer's notes, certified by him to be correct and approved by the judge, registrar, or commissioner, as the case may be, shall be lodged .a or transmitted to the registry as the certified evidence of such witnesses. A form of I ath to be administered to the shorthand writer will be found in the Appendix hereto, No, 39. PRINTING. 104. The judge may order that the whole of the pleadings and written proofs, or any part thereof, shall be printed before the trial; and the printing shall be in such manner and form as the judge shall order. 105. Preliminary Acts, if printed, shall be printed in parallel columns. ASSESSORS. 106. The judge, on the application of any party, or without any such application if he considers that the nature of the case requires it, may appoint ono or more assessors to advise the Court upon any matters requiring nautical or other professional know- ledge. 107. The fees of the assessors shall be paid in the first instance by t!ie plaintiff, unless the judge shall otherwise order. 398 APPEXDIX. SETTING DOWN FOR TRIAL. 108. An action slmll be set down for trial by filing a notice of trial. A form of notice of trial will be found in the Appendix hereto, No. 40. 109. If there has not been any appearance, the plaintiff may set down the action for trial, on obtnining from the judgo leave to proceed ex parte — {yal — Burns, 326. 17. In so far as regards Canadian registered vessels, the Court can enter- tain claims for master's and seamen's wages, if the amount due is or exceeds issol proceeded aijainst » ajiaitiMt tlie further he Huit. The lin'ifge- 257; The Moiiark— vessel under charter r collision caused by tiie charter party pro- case of damaf;c the asc mitil she could be that an action by the iMt the oflFeiidini; ship I would lie. The Net- 3f);{. -Admiralty Court, at arisdiction over claims when the ship in rela- 3h claims are asserted, iiother Province, as in Nova Scotia. The — Rich, 212. diction conferred by ity Courts' Act, 18G3, case of damaj^e by a extend so far a>' to to award consef|uen- asioned to the traffic J Barcelona — Ander- cannot exercise juris- ,ve effect to an agree- I owner and uiasier of he duties to be per- ter are miscellaneous ly those of a master. ns, 32G. [IS regards Canadian the Court can enter- aster's and seamen's int duo is or exceeds two hundred dollars, and this under the Dominion .Statute, the Seamen's Act, l-x?;!, it. 18. 'I'he Vice-Aduiiralty Courts' Act, 1803, has not aflected or repealed the 189tli and 191st sections of the Mer- chant yiiippiiig Acts, 1854, ib. 19. The 189th section of the latter Act ii]iji|ic8 to foreigners as well as to liritisli vessels, ib. AFFIDAVIT. Sec Evidence. APPENDIX. Contents of, 372. ASHE. Commander Edw. D. Ashe, li.N. See AssKSBOHS. ASSESt.'JKS. Opinions of, in the following cases : 1. Quebec and Charles Ciia- LONEB, 27. 2. Quebec, 33. 3. Quebec, 41. 4. Underwriter and Lake St. Clair, 54. 5. Agamemnon, 63. 6. Churchill and Norman- ton, 72. 7. Frank, 91. 8. Eosa and Ranger, 102. 9. Eliza Keith and Lang- SHAW, 112. 10. Earl op Lonsdale, 161. 11. William, 174. 12. Attila, 202. 13. General Birch and Pro- gress, 240. INDEX. 413 14. Princess Royal and Ru- bens, 247. 15. Maugarkt :M., 270. ll>. Lombard and Farewell, 289. 17. Monica, 314. 18. SloNE and IJosE C, 366. ASSAULT. 1. As to the authority of the master of a uierehantman to jiut a seaman in irons for di.sobedieuce, neglect of duty and conduct tending to induce a mutiny. The Briilgtuatir — iJoucIl, 254. 2. He may correct not only by personal chastisement but by confine- ment or imprisonment on board the ship, ib, d. To accomplish his purpose, deadly weapons, in general, cannot be employed, but cases of necessity may justify their use, and, in the event of mutiny, any force and any weapon may be used which the urgency requires to reprcs s it. ASSIGNMENT. See Bottomry Bond ; Lien ; Sal- vage, 1, 2. BLACK, The Hon. Henry, C.B., Judge of the Court, from 1836 to 1873, BOTTOMRY BOND. Admiralty Courts recognise the negotiability of bottomry bonds, but aid their transfer with reluctance. 2'he City of Manitowoc — Higgle, 178. 414 INDEX. CANADA (DOMINION OF). The I)»)iiitnion of CanaJa is not a po>tMeM,-ii()n within the uicaiiinf^j of the Vice-Admiralty Courts' Act, lB6;i, so as to enable a ViceAduiiralty Court estabii.Hhcd in one Province of it to entertain jurisdiction over a vesHel registered in another Province, for the enforciuient of claiuis between owners. The Edioard Barrow — Rich, 212. CARGO, OWNERS OF. See Damages, Division op, 2 ; Collision, 20, 21, 49. COLLISION. 1. In order to support an action for damages in cases of collision, it is necessary distinctly to prove that the collision arose from the fault of tlic persons on board the vessel charged as the wrong-doer ; or from the fault of the persons on board of that vessel and of those on board of the injured vessel. The Agda—The Clydesdide, 1. 2. Where the evidence on both sides is conflicting, and there is reason- able doubt as to which party is to blame, tlie loss must b^ sustained by the party on whom it has fallen, ib . 3. Where a part of the line of an electro-magnetic telegraph passed under the river St. Lawrence, bein" laid in such a manner, ou the bed, as not injuriously to interrupt the navigation: — Held, in a case of gross negligence on the part of a sailing ship, causing the wire cable to be broken, that her owners were liable for the damage j — and as under existing statutory law, the Adminilty h:iH juris- diction, in case of damage done by any whip, that consujuentiy proceed- ings irt rem against the oH'cnding vessel were rightly taken. The Czar — Scolliiw, 9. 4. Where a sU-amship did not keep outof the way of a sailing ship, there being risk of a collision, and t e sail- ing ship, by porting her helm, instead of keeping iier course, contributed to the collision, botli held to be in fault, and neither entitled to recover. TTie Qwhf'C—The Charles Chaloiier, 17. 5. The law impo>ing compulsory pilotage having been repealed, the lia- bility of shipowners for acts of pilots '1 charge of their vessels revived, ib. 6. A steamer having a clear course altered it to go to the south and jass between two other vessels, and in at- tempting to do so collided with b^th. The fact of one of such vessels having very improperly altered her helm, and contributed materially to the collisions does not relieve t e steamer from the liability to make good the injuries sustained by the vessel, which did not '•ontribute to the accident. The Quebec — Bennett, p. 32. 7. Where one steamship overtook another in a ^hallow channel, in the river St. Lawrence, and a collision ensued, the overtaking vessel declared to be in fault. T/ie Quebec — Thearle, p. 37. 8. Collision by two vessels while sail- ing close to the wind, on opposite tacks By the rule of the road the ship on the starboard tack was entitled to keep e Ailminilty has juris- (if (litiiiu^u dorii! by ■on* (juuntly pnicoeil- U'aiiiMt the (iti'cndiog ly tuken. The Czar U'amship did not keep :' a Hailing ship, there )lli.Hion, and t e ("ail- Liiig lier helm, instead ouiw, contributed to h held to be in fault, ;lc'd to recover. The (tries Chdloncr, 17. nipo>ing compulsory Kien repealed, the lia- erd lor acts of pilots r vessels revived, ib, having a clear course the south and ^ ass or vessels, and in at- so collided with b(.th. )f such vessels having altered her helm, and rially to the collisions t e steamer from the 13 good the injuries vessel, which did not accidi lit. The Quebec steamship overtook illow channel, in the nee, and a collision aking vessel declared Vte Quebec — Thtarle, two vessels while sail- ind, on opposite tacks e road tlie ship on the vas entitled to keep INDEX 416 her luff :—//,/,/, in the Vice- Admiralty Court, tlint she was, notwithstanding in a case of imminent danger, and on being apprised tliat the port-tacked ve^Mel was not under command, bound to give way, i\nd for not doing so con- demned in damages and costs. The Unihrwriter—The Lake St. Clair, 43. n. Held, on appeal by the Judicial Committee of the Privy Council, that wlien a port tacked vessel has thrown herself into stays and becomes helpless, she ouglit, nevertheless, to execute any practical manoeuvre, in order to get out of the way of the starboard-tacked vessel, ib. 10. A starboard-tacked vessel when apprised of tiio helpless condition of a vessel, which by the ordinary rule of navigation, ought to get out of her way, is bound to execute any practical manoeuvre which would tend to avoid tiie collision, ib, 1 1 . Both vessels held to blame for the collision, and the damages ordered to hi assessed according to the miriilty rule, ib. 12. In such a case each party mu^t bear their own costs, both in the Court below and in appeal, ib. I'ii. To support a plea <>f inevitable accident the burden of proof rests upon the party pleadin.; it, and he must show before he can derive any benefit from it, that the damage was caused immediately by the irresistible force of the winds and waves ; that it wa-: not preceded by any fault, act or omission on his part, as the principal or indirect cause: and that no effort to counteract the influence of the force was wanting. The Agamtmnon— Martin, CO. 14. Where a barque and a steamer were proceeding in opjHjsite directions, and the latter, when between a (juarter and half a mile of the former, which was then keeping her course, ported her helm without slackening her speed, which brought her across the course of the barque, the helm of which was shortly afterwards starboarded, and a collision occurred :—y/eW, that the action of the steamer in porting her helm, having brought the barque (which otherwise siinuld have kept her course) into instant and most im- minent danger, she was justified in starboarding ; and the steamer whose duty, when proceeding in a direction involving risk of collision -was to keep out of the way, and, moreover, to stop and reverse when danger was iim linent, was responsible for the colli.-. i.. 7%e K Churchill— The J^ormanton, 65. 15. The payment of sums of money to witnesses, considerably larger than those legally allowable to them, even when shown to nave been made with no wrong intent, but from an unfounded apprehension that they would leave the country before testifyiu- will bring such discredit on their (,.>timony as seriously to affect its credibilitv, ib. 16. A sliip sailing seven knots an hour in a fog over fi.shing-ground on the banks of Newfoundland, without ade- quate means on deck to prevent acci- dent :— //e/^/, to have been in fault, and 416 INDEX, a plea of inovitablc accident overruled. Tht Frank— Petersen, 81. 17. Where tlio blasts of a fog-horn on an American pctiooner were 8ub- stitutod for the ringing a bell, as required by the sailing regulations, a plea, that it was done in accordance with a circular from the Secretary of the Treasury of the United States, over- ruled. But tlie breach of the regula- tion not having contributed to the accident the schoouer was relieved from liability, ib. 18. An omission to ring a boll in a fog covered, where an anchor light was seen in time to avoid a collision, ib. 19. "Where two sliips were each to blame for a collision in Canadian waters, an Act of the Parliament of Canada, which precludes either from recovering its damage: — Jleld, to be operative, although the Admiralty rule which divides the loss prevails in Eng- land. The Eliza Keith— The Lang- shaw, 107. 20. In a case of collision, the fault being mutual, the Admiralty rule will apply, as between the owners of cargo and the delinquent ships, dividing the loss, each ship being answerable lor a moiety, ib. 21. An ocean steamship approach- ing a narrow channel in the St. Law- rence, bound upwards, having another steamship ahead entering the chan- nel : — Ilild, to blame under the sailing rules, for not stopping at the foot of the channel to let the descending vessel pass ; for not porting her helm iu time when in the channel ; and for not slackening her speed and reversing in time. The Elphimtone—Beul, \A2. 22. A custom involving the stoppage of an ascending vet^sel at certain dif- ficult parts of the channel, noticed and approved, ib, 23. Where an American sailing ves- sel was damaged by a collision with a British steamer in South American waters, and the latter released by a British gun-boat from the jurisdiction of a Sou til American tribunal and fol- lowed into Canadian waters, a plea of a defective green light overruled, and suits of owners of sailing vessel and cargo maintained. The Enmore — Belle Hooper, 139. 24. Where an aflfidavit was obtained before suit brought from a pilot derogatory to his conduct in the man- agement of a vessel, and furnished to the adverse interest in a case of collision to serve as evidence, (ho same was struck from the record, ib. 25. A steamship, ascending the river, before entering a narrow and difficult channel, observed a tug ap- proaching with a train of vessels behind her, did not stop or slacken speed, and subsequently collided with the tug and her tow : — Held, that the steamer was to blame for not stopping before enter- ing the channel, iu accordance with an alleged and established custom to that eflect ; and that having taken upon herself the responsibility of disregard- ing this custom, she was liable for the consequences of a sheer, which threw her across the fairway, and into col- INDEX. 417 cliannel ; and for not speed and reversing in 'phinstone — Beal, 182. 1 involving the stoppage 5 vef^sel at certain dif- the channel, noticed b. n American sailing vcs- ;d by a collision witii a • in South Aiueriuan 2 latter released by a t from the jurisdiction rican tribunal and fbl- idian waters, a plea of 3u light overruled, and of sailing vessel and led. The Enquire — i9. I aflBdavit was obtained ■ought from a pilot is conduct in the man- sesel, and furnished to turest in a case of as evidence, the same the record, il. ship, ascending the tering a narrow and , observed a tug iip- traiu of vessels beiiind or slacken speed, and ided with the tug and that the steamer was stopping before enter- u accordance with an lished custom to that having taken upon isibility of disregard- she was liable ft)r the I sheer, which throw irway, and into col- lision with the descending vessels. The Earl of Loiisdule—McKmna, 153. 26. Tiie burden of proof was upon her to show that the collisions were not caused by her net'lect ; and, slie having failed to do so, her owners were liable, i/>. 27. Ilc/d, in the same case, by the Judicial (lommittee of the Privy Council, on appeal, that, under the circumstances, the f-M-t of the tug not having ported until iinniediately before the collision, did not amount to con- tributory negligence on her part, and that the decree of the Vice-Ailmiralty Court should be affirmed on all points ib. 28. A tug was seen from a barque 31. A steamship, on a very dark night, overtook and sank a schooner : — //('/(/, that the schooner was not to blame for not showing a stern lii>ht and that the steamship wa,s in fault for not keeping out of the way. The Vi/I>ele— . ]/.-.]/ ;il„ a, \9{). 32. QiidTt' as to change of sailing regulations in the matter of a stern light, ib. '.iii. The maritime law reco^'nizes no fixed rate of speed for vessels sailin" tlirongh log. T/ir. Aril/„--C/ijl m',. 34. Where a vessel is in a fog she should be under suffioirnt command to avoid all reasonable chance of collision Ib. 35. Where a collision occurred in a fog between two sailing vessels, one at anchor to cn.s her bow, and so Z, . , 7 ".'"'' '""'^^' "" suddenly to ston her sne,.^ '....,. ' '^"'- *" '"''* *'"' "^''^'^ '•'""""?.' <'reo. suddenly to stop her speed as to allow her tow to drift upon and collide with the barque; an action by the banjue against the tow, tiie cause of neulect in the tug not being proved, wasdi,smi,ssed, The Vommodon: — .Martin, lti7. 21). If a tug, for a stipulated price, promises to tow a vessel from one i)lace to another, her engagement is that she will employ competent skill, vith aerew and ecjuipment reasonably adequate to the object, without a warranty of success under every difficulty. The William — Sa iiisoii, 171. 30. Where a tug deviated from an order of her tow, and afterwards proved so deficient in skill as to allow the tug to collide with another ves.sel : — //,/,/, tiiat the tug was liable for the con- sequences of the collision, ib. BB and the log was .so den.se that their lights, respectively, could be .seen but within from fifteen to twenty seconds before collision :--//,/,/, that the speed of the vessel running free was too great ib. 3(), The Court will not receive as evidence depositions of persons |iro- fessing to be skilled in nautical attairs as to their opinion upon any case, ib. 37. Where, from a stcanishipasecnd- ing the Traverse below Quebec, a r»'d and then a green light, indicating the approach of n sailing vessel, w.'re seen and hxst sight of, until too Lite to avoid a eollisi(m :—/Irld, that the steanisliip was in fault for an insufficient look out and too much speed, uinl th.it. she wm liable for the sul)se<|iient damage sus- tained by the injured ve.s.sel, unless 418 INDEX. upon the reference grogs negligence or want ot skill on her part was established. The Govliio — Scaiktt, 38. The Court will rigidl}' apply the rule requiring the injuring vessel to stay by and assist the injured vessel, if the occasion should so require, il>. 39. In the case of a steam vessil lying at anchor in fog upon an anchor- age ground, while using her bell and showing two white lights, one upon her foremast and the other at the gaff aft, each in an oblong lantern : — Held, that a sailing vessel, which, misled by the whistle of another steamer in motion, struck her, was in fault for going too fast ; and that the lights of the steam- vessel, though not in globular lanterns, as directed by the Act respectii-g the navigation of Canadian waters, being equal in power, were a substantial com- pliance with its provisions. The General Birch— The Progress, 240. 40. When two vessels sailinti, one on the starboard and the other on the port tack, came into collision, the hitter held to be in fault for not keeping out of the way. The Princess Royal — The Rubens, 247. 41. Where two steam tugs were from a distance approaching each other nearly end on, one light and the other with a train of booms in tow, and the former inclined from her course upon her starboard helm, and after- wards crossed upon a hard-a-port helm and struck the t"g having the tow : — Held, that she was in fault, and that the tug with the tow was not to blame for starboarding at the moment of collision and for not reversing. The Margaret M. — Paqiiet, 270. 42. A plea of irresistible accident overruled, on the ground that ths vessel proceeded against had attiimpted to bring up in bad weather, in an improper position, and unprovided with the equipment necessary to enable her to do so in safety. The Ida — Rout- ston, 275. 43. Where a steam vesstl overtook and collided with a barque, in a very dense fog: — //(W, that her speed, between seven and eight knots, was, under the circumstances, cxcssive, andtiiiitshe was therefore to blame; and that the steamer not having be- come visible from the baniue unal within a distance of one huiKJred and twenty feet, or thereabouts, although her whistle had been heard for some time, the barque's people were not in fault in failing to show a stern light, as prescribed in the sailing regulations. The European — iiimpson, 286, 44. The rule as to when a stern light is to be exhibited explained, ib. 45. Where a steamship in a narrow channel in Lake St. Peter was in the act of overtaUing a steam-tug and tow so carelessly navigated as to create risk of collision, and one of the vessels in tow collided with her : — Held, that the steamship was in fault for not keeping out of the way, and the tow for not keeping her course. 2'Ae Lom- bard—The Farewell, 289. 46. In cases of mutual fault, the ancient Admiralty rule, as to the division of the damages between the at the moment of aot reversing. The iquet, 270. irresistible accident ! ground tiiat ths ;ainsthad attianptt'd ad wtather, in an and unprovided with ess'ary to enable her . The Ida—Kuul- earn vesstl overtook a barque, in a very ?, that her speed, d eight knots, was, istances, excissive, therefore to blame ; mer not having be- 1 the barcjue uuiil of one hundred and ereabouts, although leen heard for some ; people wore not in show a stern light, e sailing regulations. Hmpsou, 280. 18 to when a stern bited explained, ib. eamship in a narrow 5t. Peter was in the a steam-tug and ivigated as to create ad one of th« vesseU ,h her : — Held, that ,s in fault for not e way, and the tow r course. The Lom- ;ell, 289. f mutual fault, the ty rule, as to the images between the INDEX. 419 offenders now prevails in Canadian waters, since the passing of the Act 43 Vic. cap. 29, which restores the old law, ib. 47. And in such cases each party must pay his own costs, ib. 48. Where a sailing vessel and a steamship were meeting nearly end an, and the former ported, while the latter starboarded : — Held, that the former was in fault for not keeping her course, and the latter for not stopping, or slackening her speed. The Bothal — The Nehon, 296. 49. A sailing vessel deviated from her course contrary to thi liling rules, and came into collision with a steamer which might have otherwise avoided her. Each held to be in fault and the damages di .. ;. The Monica — Thacker, .314 50. When a steamer is charged with having omitted to do something which ought to have been done, proof of three things is required : — first,that it was clearly in the power of the steamer to have done the thing charged to have been omitted ; secondly, that, if done, it would in all probability have pre- vented the collision ; and, thirdly, that it was such an act as would have occurred to any officer of competent skill and experience in command of the steamer, ib. 51. Where two ships in the harbor of Quebec, from the violence of the wind and force of the tide, were accidentally brought into such prox- imity that each had a foul berth, both held to be in fault for not adopting the proper course to relieve themselves from their perilous positions, and thereby avoid a collision. The Arran —MacMicken, 353. ^'1. A vessel under charter was injured by a collision, caused by another vessel, the charter-party pro- viding that, in case of damage, the hiring should cease until she could be repaired : — Meld, that an action by the charterers against the offending ship for the detention would lie. The Nettlesworth — Tom, 363. 53. Two vessels crossing, one on the starboard and the other on tiie port tack : — Held, that the latter did not keep a proper look out and that the former did not keep her course, but ported her helm too late to avoid a collision, and that there was njutual fault. The Slgne—The Rose C, 366. COMPULSORY PILOTAGE. 1. Circumstances under which own- ers, who have taken a pilot on board under compulsion of law, are not allowed to throw the responsibility of an accident upon him. The Agda — Clydesdale, 7. 2. Compulsory pilotage done away with in Canadian waters, by the Act of Canada, "The Pilotage Act, 1873." The Quebec — The Charles Chaloncr, 31. CONSULS. FoEEiGN Vessels— Suit for Wages — Protest by Consul. 1. In a suit by American seamen for wages, the Consul of the United 420 INDEX. It I States, upon receiving notice of suit, made a representation in writing, accompanied by accounts .showing the promoters to bo in debt to the ship, and requested that tiie ease should not be entertaineJ : — ILld^ tliat the juris- diction of the Admiralty over causes of •wages of foreign seamen being discre- tionary, the Court would, under tlie circumstances, decline to proceed with the action. The Brulgeicati r — Doicdl, 257. 2. In a suit for seamen's wages the protest of a foreign Consul to the jurisdiction over-ruled. The Monar/c — Halvorsen, 341. COSTS. 1. In collision suits, either where there are cross-cases, or where one suit alone is brought, by the practice of the Admiralty, when mutual fault is established and the damages are divided, each party must bear his own costs. The Lombard— The Farewell 289. 2. This rule is also enforced by the Judicial Committee of the Privy Coun- cil, even where a party, condemned as being wholly in fault in the Court be- low, succeeds so far in Appeal as to have the fault declared mutual and the damage divided. The Underwriter Tlie Lake St. Clair— Coffee, 43. 3. When on a reference, the pro- moter's claim is reduced by one-third or more,, by the practice of the Court, he must pay all costs of the reference. The Barcelona — Anderson, 299. CUSTOM. 1. A custom involving the stoppage of an ascending vessel at certain dif- ficult parts of the channel noticed and approved. The Eljihinstont— Bml, 132. 2. A steamer held to blame for not stopping befoie entering an intricate channel, to allow a def-cending vessel to pass, in accordance with an alleged and established custom to that effect. The Earl of Lonsdale— McKenna, 158. DAMAGES, DIVISION OF. 1. Where, in cases of collision, both parties are mutually blameable, Courts of Admiralty, adhering to the ancient maritime law, would have apportioned the damages equally between the re- spective owners of the vessels; but, by the Act of Canada, 31 Vic. c. 58, owners of vessels contravening the rules prescribed in such Statute are precluded from recovering any por- tion of their damage. The Rosa The Ranger, 1 04. The Eliza Keith— The Langshaw, 113. 2. The foregoing rule does not apply to owners of cargo laden on board one of the delinquent vessels; but in the case of negligence on the part of both ships one moiety only of the damage can be recovered from the ship which collided with that in which the cargo was laden, ib., 116, 3. By the Canadian Statute 43 Vic. cap. 29, the Admiralty principle of the equal division of damages, in the event of common fault, is reverted to. The :STOM. involving the stoppage vessel at certain dif- thc channel noticed The Eljihhistont — held to blame for not entering an intricate ? a descending vessel lance with an alleged custom to that effect. fomJale — McKenna, , DIVISION OF. ■ases of collision, both illy blameable, Courts Ihering to the ancient )uld have apportioned lally between the re- if the vessels; but, by ada, 31 Vic. c. 58, lis contravening the in such Statute are recovering any por- mage. The Rosa — The Eliza Keith— :i3. ig rule does not apply 5 laden on board one ; vessels; but in the I on the part of both only of the damage from the ship which t in which the cargo B, dian Statute 43 Vic. ralty principle of the lamages, in the event is reverted to. The INDEX. 421 Lnmhird~The. Fmeinll, 2s9. The Aehon—ThcBoth,il, 29G. The Monica — Thinker, 314. See also Note on paire 294. * ^ 4. By tlie modern practice of the Admiralty, where, in the ca.se of colli- sion, both ships are to blame, but no cross-action is brought, the defendant ■ condemned in a moiety of the plain- a 's damages. ThArrun—McMicktn, 356. DAMAGES, MEASURE OF. 1. A vessel collided with two lighters endeavoring to raise a sunken steam- tug, broke the chains which connected them with the wreck, sent them both adrift, and was condemned in the damages resulting from such collision. On the reference, the Registrar and Merchants allowed tiie promoters all expenses incurred in endeavoring to raise the sunken tug, for the four weeks preceding the accident, on proof only that the money had been duly expended. The Celeste— Wright, 76. 2. Upon objection the report was overruled, and it was held that i was necessary for the promoters to go further, and to establish not only the actual expenditure, but that such ex- penditure was adapted to the purpose for which it was made, and had enured so much to the benefit of the pro- moters, ib. 3. When items in a claim are dis- puted the principles of evidence appli- cable in ordinary suits come into play, ib. 4. The measure of damages, for the detention of a vessel after a collision io the amount she can earn while unem- ployed by reason of it. The Norman- ton—Leitch, 122. Where, after a collision, the vessel injured was docked for the winter and the resuming of her voyage could not take place until spring, by reason of the navi<.ation of the St. Lawrence be- ing closed until then :— i/cW, that her owners could not recover as part of their damages the seamen's wages while idle during the winter, and no more than would suffice to send them to the place where they were shipped, and to pay their wages until their arrival there, ib. 5. The promoters having stated and proved their loss in the United States currency the Registrar and Merchants reported an equivalent amount in gold, not at the current rate of exchange, but at the rate as on the day of the collision. The Court, upon contesta- tion, maintained the report. TJie Frank — Fetersen, 105. 6. Upon objection to a report of the Registrar and Merchants, to whom had been referred the assessment of the damages sustained by a foreign ship- owner, through the arrest, deten- tion and search of his vessel, without reasonable cause, under the Foreign Enlistment Act, 1870; the report was confirmed, and held correct, in restrict- ing the damages so occasioned to their natural and proximate consequences, and in disallowing remote and con- sequential loss. The Atalavor-Eve, 260. 7. Upon the liquidation of an ac- 422 INDEX. count by the Eejjistrar and Merchants in a case of collision, for damages done by a sliip to a wharf: — Held, that a claim for consequential damages not asked for in the libel nor awarded by the decree cannot be considered by the Registrar and Merchants; and that, i'' it could, such damage should not be allowed either under article 1660 of the Civil Code or by the Maritime Lr,w. The Barcelona — A n derson, 299. 8. Report confirmed, ih. 9. Where damage was done by a ship to a wharf -.—Held, that the Vice- Admiralty Courts' Act, 1863, confer- ring jurisdiction on Vice- Admiralty Courts, where damage was done by any ship, does not extend to conse- quential damages occasioned to the traffic of a Ir^see. The Barcelona — Anderson, 311. DAMAGES, PERSONAL. Assault and battery and oppressive treatment by the master and owner of a ship upon a seaman. Defence — muti ny— sustained . The Bridgewa ter —Dowtll, 252. DETENTION. See Measure of Damages, 4, 6. EVIDENCE. 1. Where an affidavit was obtained before suit brought from a pilot, im- puting fault to himself in the manage- ment of a vessel under his control as such, and furnished by him to the adverse interest in a case of collision to serve as evidence, — the same struck from the record. Tlie Enmore—Tlie Belle Hooper, 139. 2. Obtaining certificates, statements, and especially affidavits, from persons on board an injured vessel to avail as evidence against their own vessel in prejudice of further investigation, is viewed by the Court with strong disap- probation and as a proceeding to be reprobated, ib. 143. 3. In causes of collision, the Court will not receive as evidence the depo- sitions of persons professing to be skilled in nautical affairs, as to their opinion upon any stated case. The Atilla — Cli/t, 199. 4. Nor in salvage will the Court be guided by the opinions of soi-disant skilled persons, pronouncing upon the value of services, on a hypothetical case, but will exercise its own judgment on a review of all the circumstances. The Victory— Natvig, 337. 5. When items in a claim referred to the Registrar are disputed, the prin- ciples of evidence applicable in ordin- ary suits come into play. The Celeste — Wright, 77. 6. Reasonable and probable cause involves the consideration of what the facts of a case are, and what are reasonable deductions from those facts. The Atalaya — Eve, 234. 7. And these facts must be legally established— hearsay evidence is in- sufficient, ib. FEES. A table of fees to be taken in Vice- Admiralty Courts, by the officers and practitioners, established by Order in INDEX. 423 ird. 77te Enmnre—The , 139. og certificates, statements, y affidavits, from persons injured vessel to avail as inst their own vessel in further investigation, is li Court with strong disap- d as a proceeding to be b. 143. 568 of collision, the Court ive as evidence the depo- ions professing to be skilled ffairs, as to their opinion ited case. The Atilla — salvage will the Court be ,he opinions of soi-disant ins, pronouncing upon the •vices, on a hypothetical I exercise its own judgment of all the circumstances. —Natvig, 337. items in a claim referred to IT are disputed, the prin- dence applicable in ordin- me into play. The Celeste 7. nable and probable cause e consideration of what a case are, and what are leductions from those facts. a— Eve, 234. ,hese facta must be legally —hearsay evidence is in- '). PEES. )f fees to be taken in Vice- Courts, by the officers and •s, established by Order in Council, of the 23rd August, 1883, undt'r the authority of the Act 26 Vict. c. 24, 8. 14, 372. FOG. 1. An omission to ring a bell in a fog covered, where an anchor liglit was seen in time to avoid a collision. The Frunk— Petersen, 81. 2. The maritime law recognizes no fixed rate or speed for vessels sailing through fog. The Atilli—Clift, 196. 3. Vessels should, however, be under sufficient command to avoid all reasca- able chance of disaster, (7;. See also the case of The General Birch. FOG-IIORNT. A Norwegian barque collided ia fog with un Anerican ."chooiur at anchor, on the banks of Newfoundland. A plea that the substitution of the bla.its of a fog-horn for the ringing of a bell, as provided in the International Sail- ing Regulations, was done in accord- ance with instructions contained in a circular from the Secretary of the Treasury of the United States, — over- ruled. The Frank— Petersen, 81. FOREIGN EXLISTMENT ACT. 1. Upon the represent.itions of the ConsulGeneral of Spain for Canada, ati American vessel was detained and her cargo taken out and searched, by virtue of a warrant under the hand of the Governor-General nf Canada, upon a charge of havin;' on boiird arms and munitions of war, destined for the use of Cuban insur- gents, contrary to the provisions of the Foreign Enlistment Act, 1870 : Held, that the charges asrainst the vessel were not supported by facta sufficient to justify her arrest, detention and search, and her release ordered. The Atolmjn — Eve, 215 2. Hears^ay evidence under the cir- cumstances inadmissible, ib. 3. The owner declared entitled to an indenmity by the Commissioners of the Imperial Treasury, under tho provisions of the Statute, ib. 4. Costs allowed against the Crown ib. 5. Damages in re.spect of search and detention under the Act restrict- ed to the natural and proximate con- sequences, and damages remote and con.sequential not allowed. The Atuhiya — Eve, 2t)0. FOHEIGX SEAMEN. The 189th section of the Merchant Shipping Act, J 854, applies to causes brought by foreign as well as by British seamen. The Monark— Halvorsen, 345. GOURUEAU. Captain Francois Gourdeau, Har- bour Master of Quebec. See Assessohs. INEVITABLE ACCIDENT. See Collision, 13, 16, 33, 42. INSCRUTABLE ACCIDENT. See Collision, 1, 2. JUDGES. Judges of the Vice- Admiralty Court at (Quebec during the [.eriod of thesj reports, 410. 424 INDEX, JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Opinions of the Lords of the Judicial Committee affirminj^ the judgments of the Vice- Admiralty Court of Lower Canada, in the cases of The Qtifhec, 34 ; The Eliza Keith and Langshaic, 117; The Earl of Lonsdale, 1 Gd. Opinion of the Lords of the Judicial Committee altering the judgments of the Vice-Adniiriilty Court of Quebec, in the cases of The l/iider- writer and Lake St. Clair, 55. JURISDICTION. See Admiralty Juiiisdiction. JUSTICES OF THE PEACE. 1. Whore a Statute required the execution of a warrant or process under an order of two Justices of the Peai'e, to levy seamen's wages to be authorised by the Judge of the Vice- Admiialty Court : — Held, that the en- actment imposed upon the Court a duty to supervise the proceedings of the magistrates, and it appearing that the process had issued for the sale of an undivided interest in a vessel, and not legally, a petition to authorise them, refused. The Caiuidienue — Be iiid't, 2(»!». JUSTIJ■'ICATI0^^. In an action by a seaman against the master and owner, a justification on the ground if mutinous, disobe- dient and disor ierly conduct sustained. The Bridgewui. r—DowtU, 252. LIEN. Except in the case of bottomry, a maritime lien is inalienable and cannot be assigned or transferred to another person, so as to give him a right of action in rem as assignee. The City of Manitowoc — Ili^ijic, 185. LIGlllS. 1. Anchor lights, in oblong and not in globular lanterns, as directed by the Act respecting the navigation of Canadiiin waters, being etiual in power : — Held, to be a substaniial compliance with the provisions of the Act. 'Ihe Gem. il Birch— The Prajress, 240. 2. Previous to the regulations of 1880, an overtaken vessel held not bound to show a stern light. The Cyhele— McMillan, 190. 3. The rule as to when a stern light is to be exhibited, explained. The European — Simpson, 286. See also cases of The Enmore; The Attila ; The Siqne, and The Rose C. MARINER'S CONTRACT. Where seamen were shipped for a voyage from London to Quebec, and back to the port of London : — Held, that the nature of the voyage thus stated was a sufficient intimation to the mariner of its duration, and a sub- stantial compliance with the provi- sions of the Merchant Shipping Acts, 1854 and 1873. The Red Jacket— Atkin, 304. MARITIME LIEN. See Lien. MASTER. See Assault; Wages 3, 4, 5, 6 and 7. transferred to another [) give him a right of IS a.sNlynee, The City -Iliyijic, 185. laiiis. f^'hts, in oblong and not riterns, as directed by ting the navigation of 8, bi'ins; f(|Uiil in jiower: substantial eonipiianee ions of the Act. 'J ha -The Progress, 240. to tiie reguhitions of itakeii vessel iield not r a stern light. The Ian, 190. as to when a stern exhibited, explained. —Umpson, 286, les of The Enmore; The Siqne, and The R'S CONTRACT. m were shipped for a ondon to Quebec, and rt of London : — JIt(d, i of the voyage thus ufficient intimation to ts duration, and a sub- ance with tiie provi- rchant Shipping Acts, i. 17ie Red Jacket — TIME LIEN. ASTER. r; Wages 3, 4, 5, 6 INDEX. 425 MATERIAL MEN. See Necessaries. MERCHANT SHIPPING A'^T, 1854. L The 189th section of this Act applies to foreign as well as to British vessels, and a Vice-Admiralty Court cannot entertain a suit for seamen's wages, the demand being below £60 sterling, unless upon a reference as pre- scribed by that Act. Tlie Monark— Hulvorsen, 345. 2. Nor is this limitation of its juri.s- diction affected by the general language of the Vice-Admiralty Courts' Acl, 1863, which confer upon it jurisdiction as to "claims for seamen's wages," and as to " claims for master's wages and disbursements;" but the two Stat- utes being to some extent, in pari ma- teria, must be construed together, ib. MUTUAL FAULT. See Division op Damages. ORDER IN COUNCIL. At the Court at Osborne House, Tslc of Wight, the 23rd August, 1883, 372. «ee Fees; Rules a.nd Heoula- TI0N8 ; Tables op Fees. PILOTAGE. 1. An indemnity in the nature of pilotage, based upon the Pilotage Act, 1873, (3H Vict. c.ip. 54), awarded to a pilot taken to sua, without his consent. The Fnrevdl—Coti, 282. 2. The Dominion Parliament may confer on the Vice-Admiralty Courts jurisdiction in any matter of shipping and navigation within the territorial limits of the Dominion, ih. 3. When an Act of the Dominion Parliament is in part repugnant to an Imperial Statute, effect will be given to its enactments in «> far as they agree with those of the Imperial Statute, ib. See Compulsory Pilotage. NAVIGATION. See Collision, passim. NECESSARIES. An agent for a foreign vessel made advances and disbursements for her use, in account with her owner. The vessel afterwards sailed on her voyage, but was brought back in a wrecked state to the port of departure -.—Held that the agent ■could then not treat his claim as one for necessaries, under the Vice-Admiralty Courts' Act, 1863. The City of Manitowoc — Higgle, 178. CC POSSESSION. 1. By the Vice- Admiralty Courts' Act, 1863, an Admiralty Court has jurisdiction over claims between own- ers, when the ship is registered within the possession for which the Court is established. The Edicard Barrow— Rich, 212. 2. The Dominion of Canada is not a possession within tlie meaning ol' the Act so as to enable an Admiralty Court for one part of it to entertain jurisdiction over a vessel registered in another part, for the enforcement of such claims, ib. 426 INDEX. PUIVY COUNCIL. See Judicial Committee of Privy Council. REASONABLE AND PROBABLE CAUSE. Defined as " such a state of faets as would lead a man of ordinary caution and prudence to believe and entertain an honest and stronf; suspicion tliat the person is guilty." Tlie Atalui/a — Ece, 234. REFERENCE. See Registrar and Merchants. REGISTRAR AND MERCHANTS. Reports of, objected to and sustain- ed in the cases of The Frank, The Atalaya, and The Barcelona; overruled in the cases of The Celeste and The Normanton. See Damages, Measure of. ROTHERY, H. C. Registrar of the High Court of Ad- miralty : his letter to Lord Selborne. See Note 294. RULES AND REGULATIONS. Made in pursuance of the Imperial Statute, 26 Vict., c. 24, touching the practice to be observed in the several Courts of Vice-Admiralty in Her Ma- jesty's possessions abroad, and estab- lished by Her Majesty's Order-in- Council, at the Court at Osborne House, Isle of Wight, the 23rd of August, 1883, 384, SALVAGE. 1. The lien of salvors upon property saved by theii exertions is personal and inalienable. TJie Cifi/ of Mani- towoc — Iliggie, 178. 2. An assignment by salvors, for a valid consideration, of a sum due them for salvage, does not bo vest in their assignees as to enable the latter to proceed in rem in their own na.ues, ib. 'i. A steam vessel, while on fire in the lower Ft. Lawrence, derelict, waa partially saved by a steam tug, which tow< il her to the shore, where she was beached, and afterwards sold by decree. The salvors declared entitled to one- third of the proceeds of sale and their costs, and the award distributed among them. The Progress — Bemier, 308. 4. A steam-tug engaged to tow a ship can claim for services to such ship, if she incurs a risk or iR'rforms a duty outside the scope of hor origin- al engagement, and when she has been freed from the obligations under which she is placed by her originnl contract, as by a vis major, or by accidents not contemplated when the contract was entered into. Tlie Victory — Natvlg, 335. 5. The tug cannot claim if the ship has been brought into a dangerous position by the fault of the tug, on the principle that a vessel (so to speak) cannot profit by her own wrong, ib. 6. Where a vessel with a valuable cargo was stranded on a dangerous place near Cape Rosier, salvage services were rendered by a passing steamer : — Held, that as there was no danger to VAGE. vlvnra upon property lertiona is personal The City of Muni- 8. snt by salvors, for a 1, of a sum due them lot 80 vest in their nablo the latter to their own na.ues, ib. sel, while on fire in 'rence, derelict, was a steam tug, which hore, where hIk' was vards sold by decree, red entitled to one- ds of sale and their d distributed among ress — Bemier, 308. engaged to tow a jr services to such a risk or jK^rforuis scope of her origin- 1 when she has been gations under which ir original eontracC, or by accidents not 1 the contract was ! Victory — Natvig, lot claim if the ship into a dangerous It of the tug, on the essel (so to speak) : own wrong, ib. sel with a valuable d on a dangerous jier, salvage services passing steamer : — 3 was no danger to INDEX. 427 life or property incurred by the salving steamer in aiding to get her off, the sum of 81,000 was an adequate re- muneration. The Carmona — JIul- vrow, .350. 7. A tender of the above amount after nit brought without costs de- clared insufficient, ib. 8. The Palmerin, a screw steamship of 1725 tons register, valued at£19,- 500 sti rling, when on a voyage from Montreal to Cape Breton, broke her shaft off the Bird Rocks. The SS. Nestorian, valued, with her cargo and freight, at £57,000 sterling, bound from Montreal to Glasgow, took the Palmerin in tow, and towed her safely to Sydney,— in doing so tlie Nestorian deviated from her voyage, but incurred no special risk. The towage lasted twenty hours. £1,150 sterling al- lowed as salvage remuneration. The Palmerin — Anderson, 358. SEAMEN. See Assault; Personal Damage; Mariners' Contract; Wages. STATUTES (IMPERIAL). 59 Geo. Ill, c. 69. 3 & 4 Vict. c. 65. 17 & 18 Vict. c. 104. 24 Vict. c. 10. 25 & 26 Vict. c. 63. 26 Vict. c. 24. 28 & 29 Vict. c. 63. 30 & 31 Vict. c. 45. 32 Vict. c. 11. 33 & 34 Vict. c. 90. 36 & 37 Vict. c. 85. STATUTES (CANADIAN). 10& II Vict. c. 8.3. 12 Vict, c, 114. 31 Vict. c. 68. 31 Vict. c. 61. 36 Vict. c. 54. 37 Vict. 0. 129. 43 Vict. c. 29. STATUTES (CONGRESS). Revised Statutes 4404, 4405 and 5912. STUART, Tlie Hon. George Okill. Judge of the Court from 1873 to 1884. See Preface to this Volume. TABLES OF FEES. See Fees. TELEGRAPH CABLE. See Cci.LisioN, 3. TOWAGE. 1. Where an agreement was made in the Lower St. Lawrence with a tug to tow a ship to Quebec, Montreal and back to Quebec -.—Held, that the tug having towed the ship to Quebec and Montreal her owner fould not transfer the contract to another to complete it, and that he could not substitute an in- ferior tug with additional tow for the purpose. Tlie Euclid— Anderson, 279. 2. QucBre, as to the jurisdiction of the court, ib. 3. Where negligence was charged against a tug for running her tow aground in au intricate channel in the 428 INDEX. St. Lawrence •.—Held, that the acci- (lint waK owiiif; to the inereased diiiiger of tlif navipUidn at the k'};iniiiiig of wintt r, and that the iuiniedinte cuuce was the shutting oat of lights and tho fupt of the buoys in I'm chnn- II. , beinj? invisible. The Giir/ph — Ma^, 321. 4. In the opinion of the Court, the tow was to blame, for navipatinj^ at a danfjerouH and inclement Hea.-on, with- out a qualified licensed pilot, ib. TUG AND TOW. See Collision, 25, 26, 28, 29, 41, 46. Salvage, 3, 4. Towage. VICE-ADMIRAL. Vice-Adniirals of Canada during the period of these reports, with the dates of their commissions, 410. VICE-ADMIRALTY COURTS. See Admiralty Jurisdiction. VIS MAJOR. See Inevitable AcriDENT. VOYAGE. See Mariner's Contract. WAGES. 1. Where a Statute required the execution of a warrant or process under an order of two Justices of the Peace for seamen's wages to be authorized by the Judge of the Vice-Admiralty Court : — Held, that the enactment im- posed upon the Court a duty to super- vise the proceedings of the magistrates. The Canadimnt — Baudet, 209. 2. It appearing that a warrant and process of two niaglKtratcs, iwued for the Hale of an undivided intirest in a vcsMtl, had not legally iwsurd, a peti- tion to authorize them was refused, ih, 3. In a suit by the ma.'-ter of a steaui- tug againnt the owner for wages and dinburHemenf8: — Ihld, that a Vice- Admiralty Court cannot, under the Vice-Admiralty Courts Act, 1803, exercise its jurisdiction so as to give effect to an agreement between the owner and master of a ^ essel, where the duties to bo performed are miscel- laneous and not incident the situa- tion of a master. The lioj/ul—Jiurn», 326. 4. By the Dominion Statute, the Seamen's Act, 187 ', the jurisdiction of the Court, as respects vessels regis- . tered in the Provinces of Quebec, Nova Scotia, New Brunswick and British Columbia, being restricted to claims for master's and sesimen's wages above J2G0, the 18!ith and 191st sections of the Imperial Merchant Shipping Act, 1854, are in relation to such vessels, so far repealed as to reduce £50 sterling to 8200, t6. 5. The Vice-Admiralty Courts' Act) 1863, has not in any other way effected or repealed the 189th and lOlst sec- tions of the Merchant Shipping Act, 1854, ib. 6. In a suit for ship's disbursements brought by the master, who became liable for their payment upon condition that the owner did not pay them, there must be a demand on the owner ; that u warrant and a^intrati's, ixHUcd for divided intercut in a giiliy iwHUi'd, a poti- hein was refused, ib. ;ho macter of n steaui- wiier for wages and Iltld, that a Vice- oaiinot, under the Courts Act, 181)3, iction 80 as to give ienii'nt between the ' of a vessel, where ;rf(irnied are miscel- icidcnt the situa- The lioi/ul — Bums, minion Statute, the 7 ', the jurisdietion ispeets vessels regis-. )vinces of Quebec, w Brunswick and being restricted to er's and seiiuien's the 18!ith and IQlst Imperial Merchant 4, are in relation to repealed as to reduce 0,i6. miralty Courts' Acti y other way effected 9th and 19l8t sec- jant Shipping Act, ihip's disbursements aster, who became aent upon condition id not pay them, maud on the owner INDFX 429 by the creditors or by the master, be- fore the master can validly bring his Huit, ih. 7. Where a master sues for ship's disbursements without first present- ing his accounts, he cannot recover costs, ih. 8. The ISnth section of the Mer- chant Shipping Act, 1854, applies t« foreign as well as to British vessels, and a Vice-Admiralty Court cannot enter- tain a suit for sedmen's wages, the demand being below C50 sterling, except upon a reference as prescribed by that Act. The iMonark — Hal- vofgeii, 345. See cases of The Bridoewatfe; The Red Jacket, and Tub Monahk. WITNESS. Money payments to witnesses larger than those legally due them, even when shown to have been made with no wrong intent, but from an unfounded apprehension that they would leave the country before testifying, will h„ discredit their testimony as seriously to affect its credibility. The N. Churchill— Tht Aormcmton, C5. WKECK. In tf ' 'ase of a wrecked and derelict j 8tx;am.tU}^ one-third of the gross pro- I cc da arimigfrom its sale, allowed over k 5.' abovi oosts, to salvors for meritor- it ' aer vices. The Frogresa—Ba-nier 308.