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In the present Edition Chapters J II., IV., imd V. of the second edition have been sub-divided ; the cases upon Practice are collected in Chapter XII. ; those upon Costs follow in Chapter XIII. Addi- tional matter representing the decisions of the past live years has been embodied, mainly in Chapters XII. and XIV. The history of the rule as to division of loss has been removed from its former place in the text to the foot (Note 1) of Chapter VI. To the Appendix have been added the Regu- lations approved by the representatives of the maritime nations at the Conference held at Wash- ington in 1889 — 1890. It is anticipated that this Code will, possibly with some modifications, super- sede the Regulations (of 1881) now in force. But some time must elapse before the change in the law is effected, and it has been thought best not to further delay the publication of the present edition. The attention of the reader is called to 783359 \T. PREFACE. some of tlic points in which the Washington Regu- lations differ from the existing Regulations, by the footnotes referring to the new Code in the A})pendix. Upon a former occasion I ventured to remark upon the growing complexity of the Regulations. Since that date (1885) the alterations and pro- j)osed alterations in the law have been in the direction, not of sim2)lification, but further com- plexity. It seems almost too much to expect a North Sea smacksman to apply with success such a law as Article 10 of the Regulations of 1884, as altered by Order in Council, and explained b}' The Tivcedsdale. R. G. M. Ix>'EE Temple, 13^/i Fehruary, 1891. TABLE OF CONTENTS. PAGE Table of Cases - - - - - - ^^ Chap. I. Negligence - - - - - 1 II. Presumption of fault - - - 38 III. Liability - - - - - - 60 IV. Persons entitled to recover - - lOG V. Damages - - - - - - 110 VI. Division of loss - - - - 125 VII. Limitation of liability - - - - 161 VIII. Tug and tow - - - - - 185 IX. Poreign ships — Foreign law— Foreign judg- ments - - - - - " 208 X. Compulsory pilotage - - - - 227 XL Collision with reference to (1) the ship- owner's LIABILITY as CARRIER; (2) THE CONTRACT OF INSURANCE CRIMINAL AND OTHER CONSEQUENCES OF COLLISIOJf - - 281 XII. Practice 304 XIII. Costs 328 XIV. The Eegulations for preventing Collisions O O Q AT feEA ... - - OOJ APPENDIX - - - - - - 531 INDEX - - - - - - - 593 TABLE OF CASES. A. PAGE " A. R. Wetmore," The, and The " Epsilon," 5 Bened. H7 200 Abouloff r. Oppcnheimor, 10 Q. B. D. 295 ; 52 L. J. Q. B. 1 ; 47 L. T. N. S. 325 ; 30 W. R. 429 ; 31 ti. 57 225 "Abraham," The, 2 Asp. Mar. Law Cas. 34 ; 28 L. T. N. S. 775. 30 «' Acacia," The, 4 Asp. Mar. Law Cas. 251 82 " Actieon," The, 1 Rp. E. & A. 17G 310 "Active," The, 5 L. T. X. S. 773 319, 330 "Ada," The, and The " Sappho," 27 L. T. N. S. 718 ; 1 Asp. Mar. Law Cas. 475; on app. 28 L. T. N. S. 825; 2 Asp. Mar. Law Cas. 4 493 Adams r. Glasy-ow and Southwestern Railway Co., 3 Court of Sess. 4th Ser. 215' 107 Addison v. Ovcrend, G T. R. 76G 107 " Admiral Boxer," The, Swab. Ad. 193 248 " Adriatic," The, 3 Asp. Mar. Law Cas. IG ; 33 L. T. N. S. 102. .62, 375 - — . 17 Otto, 512 478 " Adventure," The, and The "Supply," Marsingillo. Taylor, Marsd. Ad. Ca. 288 147 African Stoaui Ship Co. r. Swnnzy, 2 K. & J. CGO ; 25 L. J. Ch. 870; 27 L. T. 248 ; 4 W. R. 210 167, 177, 321, 337 " Agamcnmou," The, 1 Quebec L. R. 333 10, 195 " Agnes Otto," The, 12 P. D. 56 ; 56 L. J. Ad. 45 : 56 L. T. N. S. 746; 35 W. R. 550; G Asp. M. L. C. lit) 332 "Agra," The, and The "Elizabeth Jenkins," L. R. 1 P. C. 501 ; 3G L. J. Adm. 16; 16 L. T. N. S. 755; 16 W. R. 735.... 328, 336, 473, 475, 492, 493 " Agricola," The, 2 W. Rob. 10 230, 244, 269, 272 " Aguadillana," The, 6 Asp. M. C. 390 ; GO L. T. N. S. 897 . .404, 50^8, 514, 515, 575 " Aid," The, 6 P. D. 84 ; 4 Asp. Mar. Law Cas. 432 ; 50 L. J. Ad. 40; 44 L. T.N. S. 843; 29 W. R. 614 313 " Aimo," The, and The " AmcHa," 2 Asp. Mar. Law Cas. 96 ; 29 L. T.N. S. 118; 21 W. R. 707 0, 412, 417, 475 Aitchison r. Lohre. See Lohre v. Aitchison. "Alabama," The, and The "Gamecock," 2 Otto, 695. ..104, 137, 196,286 "Albert Edward," The, 44 L. J. Ad. 49 : 24 W. R. 179 . .2, 30, 86, 118 X TABLE OF CASES. PAGE Aldrict V. Simmons, 1 Stark. 214 67 " Aleppo," The, 14 L. T. N. S. 228 ; 3o L. J. Ad. 9 36 «« Alexamler," The, 1 Dods. 278 80 «' Alexandi-ia," The, L. R. 3 A. & E. 574 ; 41 L. J. Ad. 94 ; 27 L. T. N. S. 665 316 " Alhambra," The, Br. & L. 286 286, 308 " Alice," The, and The " Eosita," L. R. 2 P. C. 214 ; 38 L. J. Ad. 20 ; 19 L. T. N. S. 753 ; 17 AV. R. 209 307 " AlinP," The, 1 W. Rob. Ill 79, 82—84, 162 " AUwal," The, 1 Sp. E. & A. 96 39 '■ Allan," The, and The " Flora," 2 Mar. Law Cas. 0. S. 386 ; 14 L. T. N. S. 860 485, 510 Allen V. Quebec Warehouse Co., 12 Ap. Ca. 101 ; 56 L. J. P. C. 6 ; 56 L. T.N. S. 30 505 Allesou V. Marsh, 2 Ventr. 181 103 Alne Holme, The (First Action), 47 L. T. N. S. 309 ; 4 Asp. M. L. C. 593 82, 84, 323 (Second Action), 47 L. T. N. S. 307; 4 Asp. M. L. C. 591 87, 316 " Alston," The R. L., 7 P. D. 49 ; 46 L. T. N. S. 208 ; 30 W. R. 707 ; 4 Asp. Mar. Law Cas. 509 ; on app. 8 P. D. 5 ; 48 L. T. X. S. 469 ; 5 Asp. Mar. Law Cas. 43 134, 520, 574 " Altyre," The, Ad. Div. 27th Feb. 1885 332, 585 "Amalia," The, Cail r. Papayanni, Br. & Lush. 151; 1 Moo. P. C. C. N. S. 471 ; 32 L. J. Ad. 191 ; 12 AV. R. 24 ; 8 L. T. N. S. 805 89, 169, 217, 219, 220, 308, 321 "Amalia," The, Br. & L. 311 308 34 L. J. Ad. 21 ; 5 N. R. 164, note 177 and The " Catherine Maria," Holt, 87 410 "Amazon," The, 36 L. J. Ad. 4 316 "Ambassador," The, 2 P. D. 37, note 10, 102 "Amelia," The, 23 L. T. N. S. 544 332, 333 "America," The, 3 Bened. 424 ; 10 Blatchf. 155 ; 2 Otto, 432 . .68, 356, 423, 494, 500 "American," The, and The "Syria," Union Steamship Co. t\ Owner.s of The " Aracan," L. R. 4 A. & E. 226 ; 43 L. J. Ad. 24 ; 31 L. T. N. S. 42 ; 22 W. R. 845 ; on app. L. R. 6 P. C. 127 ; 43 L. J. Add. 30 ; 22 W. R. 927 ; 31 L. T. N. S. 42 . . 174, 185—193, 814, 359—371, 432, 493 Amos V. Chadwick, 4 Ch. D. 867 315 " Andalusian," The (laimch), 2 P. D. 231 ; 46 L. J. Ad. 77. . . .312, 521 (limited liability), 3 P. D. 182; 47 L. J. Ad. 65 ; 39 L. T. N. S. 204 ; 27 W. R. 172 169, 173, 176 "Anglo-Indian," The, 3 Asp. M. L. C. 1 ; 33 L. T. N. S. 233 ; 23 W. R. 882 361, 391, 395 " Ann," Tlie, Lush. 55 307, 422 " Ann and Mary," The, 2 W. Rob. 189 ; 7 Jur. 1001 309, 312, 409 " Anna Johnson," The, 2 Stuart (V. Ad. Canada), 43 209 TABLE OF CASES. XI PAGE "Aunapolis," The, and The "Golden Light," Lush, 355; 1 Mar. LawCas. 0. S. 1815; 5 L. T. N. S. G92 200, 248 and The "Johanna StoU," Lush. 295; SOL. J. Ad. 201; -1 L. T. N. S. 417 208, 218, 229, 230, 2C9, 331 " Anne Caroline," The, 2 Mar. Law Cas. 0. S. 208 ; 2 AVall. 538 . .419, 490 " Annie," The, 12 P. D. 50 ; 5G L. J. Ad. 70 ; 50 L. T. N. S. 500 ; 35 W. R. 366; 6 Asp. M. L. C. 117 81 " Annie Lindsay," Tlie, G Benod. 290 ; 14 Otto, 185 410 " Annot Lyle," The, 11 P. D. 114 ; 55 L. J. Ad. 62 ; 55 L. T. N. S. 576 ; 34 W. R. 647 ; 6 Asp. M. L. C. 50 31, 504 Anonymous Case, 1 Camp. 516, note 3G 1 Keb. 44 77 5 Ta\mt. 605 292 Apollo, 6 Asp. M. C. 356, 402 ; 60 L. T. N. S. 112 101, 253 " Arabian," The, 2 Stuart (V. Ad. Canada), 72 41, 420 " Araby Maid," The, Times newspaper, 16th Dec. 1880 373 " Araxcs," The, and The "Black Prince," General Inm Screw Co. r. Moss, 15 Moo. P. C. C. 122 ; 5 L. T. N. S. 39 . .357, 423, 424, 493 and The " Robert Ingram," Lush. 327 362 "Arbutus," The, 2 M. L. C. O. S. 136 ; 11 L. T. N. S. 208.... 228, 265 " Ardandhu," The, Owners of Cargo ex Ivi-onprinz v. Owners of the Kronprinz, 11 P. D. 40 ; 12 Ap. Ca. 256 ; 55 L. J. Ad. 9 ; 56 ib. 49; 54 L. T. N. S. 468, 819 ; 56 ib. 345; 35 W. R. 783 ; 5 Asp. M. L. C. 573, 594; 6 ii. 124 323 "Argentine," The, 13 P. D. 61 ; 13 P. D. 191 : 14 Ap. Ca. 519 ; 59 L. J. Ad. 17 ; 58 L. T. N. S. 643 ; 59 ih. 914 ; Gl il>. 706 ; 37 W. R. 210 ; 6 Asp. M. L. C. 433 110, 111, 120, 121 " Argo," The, Swab. Ad. 462 20, 21, 243, 244, 249, 250 " Ai-iadne," The, 2 Benod. 472 ; 13 Wall. 175 64, 499 . See Little v. Burns. " Arklow," The, Emery v. Cichero, 9 App. Ca. 136 ; 53 L. J. P. C. 9 ; 50 L. T. N. S. 305 : 5 Asp. Mar. Law Cas. 219 43 Armstrong v. Gaselee, 22 Q. B. D. 250 ; 58 L. J. Q. B. 149 ; 59 L. T. N. S. 891 ; 37 W. R. 739 ; 6 Asp. M. L. C. 353 306 Amistrong i'. Lancashire and Yorkshire Rail. Co., L. R. 10 Ex. 47.. 107 Ai-nison v. Smith, 40 Ch. D. 507 ; 58 L. J. Ch. 335 ; 60 L. T. N. S. 389 ; 37 W. R. 405 224 " Arran," The, 9 Quebec L. R. 278 195, 505 " Arratoon Apcar," The, Ocean Steamship Co. v. Apcar & Co., 15 Ap. Ca. 37 ; 59 L. J. P. C. 49 ; 62 L. T. N. S. 331 ; 38 W. R. 481 16, 335, 357, 444, 452 "Arthur Gordon," Tlic, and The "Independence," Maddox v. Fisher, Lush. 270 ; 14 Moo. P. C. C. 103 ; 4 L. T. N. S. 563 ; 9 W. R. 582 6, 8, 185, 421, 422, 427, 430, 493, 501, 512, 518, 523 "Asia," The, (1891), P. 121 338 "Assyrian," The, 63 L. T. 91 312 "Athol," The, 1 "W. Rob. 374 102, 103 Atkinson v. Newcastle and Gateshead "Waterworks Co.. 2 Ex. D. 44 1 ; 36 L. T. N, S. 761 ; 25 W. R. 794 ; 46 L. J. Ex. 775 524 XU TAI5LE OF CASES. PAGE " Atlas," The, 2 AV. Rob. 502 246, 248 2 Mar. Law Cas. O. S. Dig. 1480 507 10 Blatclif . 459 ; 3 Otto, 302 58, 104, 197, 286, 499 " Attila," The, 5 Quebec L. R. 340 399, 407, 416 Attlcc V. The Packet Co., 21 Wall. 389 86 Attoniey-Gciieral r. Case, 3 Price, 302 230, 259, 269 '- f. Norstedt, 3 Price, 97 83 Attwood V. Sellar, 5 Q. B. D. 286 303 " Ausriista," The, 56 L. T. N. S. 58 ; 57 il>. 326 ; 6 Asp. M. L. C. 58,^161 215, 218, 232, 256 " Aurora," The, 2 Stuart V. Ad. Rep. 52 41 . and The "Robert Ingram," Lush. 327. . . .40, 136, 308 Australian Direct Steam Navigation Co., In re, L. R. 20 Eq. 325 ; 44 L. J. Ch. 676 80, 84 Australian Steam Navigation Co. v. Smith, The " Birksgate " and Tlie '-Barrabool," 14 Ap. Ca. 321 ; 58 L. J. P. C. 101 ; 61 L. T. N. S. 135 315 Australian Steam Navia'ation Co. r. Smith, The "Victoria " and the "Keilawarra," 14 Ap. Ca. 318 ; 61 L. T. N. S. 134 466 " Avenir," The, 9 P. D. 84 ; 53 L. J. Ad. 03 ; 32 W. R. 755 ; 50 L. T. N. S., 512 ; 5 Asp. M. L. C. 218 87 "Avon," The, and The "Thomas Joliff'e," L. R. (1891) P. 7; 63 L. T. N. S. 712 ; 39 W. R. 176 137, 144, 197 B. " Bahia," The, Br. & L. 61 288 " Baltic," The, 2 Bened. 452 31 "Banshee," The (No. 1, Practice), 56 L. T. N. S. 75 ; 6 Asp. M. L. C. 130 313 . (No. 2, overtaken ship), 57 L. T. N. S. 841 ; 6 Asp. M. L. C. 221 354, 473, 476 " Barcelona," The, 10 Quebec L. R. 305 398 Barclay r. Cuculla y Gana, 3 Dougl. 389 281 Barker v. Highlcy, 1 1 W. R. 968 324 " Baron Aberdare," The, 12 P. D. 204 ; 13 ib. 105 ; 56 L. J. Ad. 106 ; 57 L. T. N. S. 883: 59 ih. 251; 36 W. R. 191, 616: 6 Asp. M. L. C. 224, 315 112 " Bartlej-," The, Sw. 198 315 Bam-ick v. English Joint Stock Bank, L. R. 2 Ex. 259 69, 70 Bastard v. Smith, 10 Ad. & Ell. 213 310 " Batavier," The, 2 W. Rob. 407 , 35, 233, 601 15 P. D. 37 ; 62 L. T. N. S. 406 ; 38 W. R. 522 . . 329, 330 1 Sp. E. & A. 378 ; on app. nom. Netherlands Steamboat Co. v. Styles, 9 Moo. P. C. C. 280 ; 28 L. T. 429 27, 28, 37, 85, 245, 246, 400, 466, 497, 518, 520 "Bay State," The, 3 Blatchf. 18 466 TABLE OF CASES. XHl PAGE 31 " Beaver," Tlie, 2 Bencd. 118 Bockluunf. t'liapraan, The "Little Betsy" and The "JonaH," Marsd. Ad. Ca. 270 14C Beilby v. Eapcr, 3 B. & Ad. 281 267 ^, Scott, 7 M. & W. 03 '-^30, 240, 259 " Belgenlaud," The, G Dav. 35o 345, 346, 497 " Belgic," The, 2 B. D. 57 (note) ; 46 L. J. Ad. 58 (note) ; 35 L. T. N.S.929 24, 194,243, 2o2 " Bella Donna," The, Newb. Ad. 510 501 "Bcllcairn," The, 10 P. D. IGl ; 55 L. J. Ad. 3; 53 L. T. N. S. 68G ; 34 W. R. 55 322 "Bellerophon," II.M.S., 3 Asp. Mar. Law Cas. 58 ; 44 L. J. Ad. 7 ; 33 L. T. N. S. 412 102, 517, 518 " Benares," The, 7 Not. of Cas. 50, Suppl. ; 14 Jui-. 581 82, 169 5 Asp. Mar. Law Cas. 53 ; 48 L. T. N. S. 127 ; on App. 9 P. D. IG ; 53 L. J. Ad. 2 ; 5 Asp. Mar. Law Cas. 171 ; 49 L: T. N. S. 702 ; 32 W. R. 268 . . 7, 49, 352, 363, 441, 451, 480, 481, 489, 490 " Benayo," The 310 '• Benefactor," The, 14 Blatchf. 254 356, 517 " Bengal," The, Swab. Ad. 468 ; 5 Jm\ N. S. 1085 317 " Benmore," The, L. R. 4 A. & E. 132 ; 43 L. J. Ad. 5 ; 22 W. R. 190 30, 312 Bennet v. Moita, 7 Tannt. 258 , 238 Bennett r. Lord Bury, 5 C. P. D. 339 ; 49 L. J. C. P. 411 ; 42 L. T. N. S. 480 31o " Berkslure," The. See The " Scotia." " Bernina," The, No. 1 (Bill of Lading), 12 P. D. 36 ; 56 L. J. Ad. 38 ; 56 L. T. N. S. 450 ; 35 W. R. 214 ; G Asp. M. L. C. 112 ... . 104, 174, 284 No. 2 (overruling Tliorogood r. Bryan), 11 P. D. 31 ; 12 ib 58 ; 13 Ap. Ca. 1 ; 55 L. J. Ad. 3 ; 56 ib. 17 ; 57 ib. 65 : 54 L. T. N. S. 499 ; 56 ib. 258 : 58 ib. 423 ; 34 W. R. 595 ; 35 ih. 314 ; 36 ib. 870 : 5 Asp. M. L. C. 577 ; G ib. 75, 257 15, 23, 27, 65, 104, 116, 133, 136, 143, 242 No. 3 (Damages), 55 L. T. N. S. 781 ; 6 Asp. M. L. C. 65 Ill, 11*^ "Beryl," The, 9 P. D. 4 ; 49 L. T. N. S. 748 ; 5 Asp. M. L. C. 193 ; 32 W. R. 648 ; on app. 9 P. D. 137 ; 33 W. R. 191 ; 53 L. J. Ad. 75 • 51 L. T. N. S. 554 ; 5 Asp. M. L. C. 321 .... 47, 313, 34G, 348, 423, 435—449, 474 " Bernngton," The, and The " Ostrich " 585 " Beta," The, L. R. 2 P. C. 447 ; 34 L. J. Ad. 76 ; 20 L. T. N. S. 988; 17W. R. 933 318 . Br. & L. 328 : 2 Mar. Law Cas. O. S. 165 ; 12 L. T. N. S. 1 263, 331 (speed), 9 P. D. 134 ; 51 L. T. N. S. 154 ; 5 Asp. M. L. C. 276 ; 33 W. R. 190 406 " Bets}-," The, cited in The "Panther," 1 Sp. E. & A. 31, 34, n.. . 410 "Betsy Caines," The, 2 Hag. Ad. 28 1 18, 150 XIV TABLK OF CASES. PAGE Betts V. Be Vitrc, L. E. 3 Ch. 441 ; 37 L. J. Ch. 32o ; IS L. T. N. S. 165 ; 10 W. R. 529 70 «' Bianca," The, 8 P. D. 91 ; 52 L. J. Ad. 56 ; 48 L. T. N. S. 440 ; 31 W. R. 954 ; 5 Asp. M. L. C. 60 187, 319 "Bilbao," The, Lush. 149; 3 L. T. N. S. 338.... 82, 211, 230, 252, 325 " Bi.ila," The, 3 Asp. M. L. C. 125 ; 34 L. T. N. S. 185 ; 24 W. R. 524 311 «' Birkenhead," The, 3 W. Rob. 75 102, 434 "Birksgate," The, and The "Barrabool," Australian Steam Navi- gation Co. V. Smith, 14 Ap. Ca. 321 ; 58 L. J. P. C. 101 ; 61 L. T. N. S. 135 315 " Bjorn," The, 9 P. D. 36 (n.) ; 5 Asp. M. L. C. 212 (n.) 316 Blaaupot V. Da Costa, 1 Edin. 130 293 " Black Prince," The, Lush. 568 120, 334, 335 Blakie r. Stembridge, 6 C. B. N. S. 894 ; 28 L. J. C. P. 329 67 Blanchard v. New Jersey Steamboat Co., 59 New York Rep. 292 .... 64 "Blenheim," The, 1 Sp. E. & A. 285 115, 414, 415, 491 2 W. Rob. 421 ; 4 Not. of Cas. 393 521 "Blessing," The, and The "John and Sarah," Milton c. Oldford, Marsd. Ad. Ca. 305 157 • and The ' ' William and John, ' ' Kichener c. Cocklin, Marsd. Ad. Ca. 294 147 Blewitt V. Kill, 13 East, 13 72 " Blossom," The, Abbott, Ad. 188 499 Blythe v. Marsh, 1 McCord, 360 289 "Boanerges," The, 2 Mar. Law Cas. O. S. 239 486 "Bold Bucclengh," The, Harmer v. Bell, 3 W. Rob. 220; 7 Moo. P. C. C. 267 ; 19 L. T. 435 79—82, 88, 92, 165, 317 1 Pritch. Ad. Dig. 2nd ed. 144 497 " Bolderaa," The, Holt, 205 510 " Bolina," The, 3 Not. of Cas. 208 9, 30 "Borodino," The, 5 L. T. N. S. 291 106, 318 " Borussia," The, Swab. Ad. 94 195, 237, 244, 245, 509 " Boskenna Bay," The, and The "Earl of Dumfries," . . . .403, 407, 450 "Bothnia," The, Lush. 52 ; 29 L. J. Ad. 65 ; 2 L. T. N. S. 160. . . . 31, 46, 307 "Bottle Imp," The, 42 L. J. Ad. 48 ; 28 L. T. N. S. 280 31 Boucher v. Lawson, Cas. temp. Hardwicke, 85 165, 287 " Bougaim-ille," The, and The "James C. Stevenson," Beal v. Marchais, L. R. 5 P. C. 316 ; 28 L. T. N. S. 822 ; 21 W. R. 653. . 40, 353, 354, 369, 431, 452, 476, 487 Bowcher v. Noidstrom, 1 Taunt. 508 67 Bower v. Peate, 1 Q. B. D. 321 ; 45 L. J. Q. B. 440 ; 35 L. T. N. S. 321 73 " Bowesfield," The, 5 Asp. M. L. C. 265 ; 55 L. T. N. S. 128. .316, 317 Bradbum v. Great Western Rail Co., L. R., 10 Ex. 1 123, 295 " Breadalbane," The, 7 P. D. 186 ; 4 Asp. M. L. C. 505 ; 46 L. T.^ ^^- ^- 2^1 315,393,414, 419, 422, 458, 459 TABLE OF CASES. XV PAGE "Breeze," The, 6 Benod. 14 l-'^S " Brid.ifeport," The, 11 AVall. 116 ; 7 Blatchf. 301 501 G Blatclif. 3 511 " Brinio," The, 90 L. T. 249 177 Brinsmead v. Harrison, L. R. 6 C. P. 584 ; 24 L. T. N. S. 790 ; 40 L. J. C. r. 281 ; 19 W. R. 956; on app. L. R. 7 C. P. 547 ; 41 L. J. C. P. 190 ; 27 L. T. N. S. 99 ; 20 W. R. 784 104 British Columbia Towing and Transport Co. v. Sewell, 9 Davis (Canada), 527 173, 170, 203 " British Commerce," The, 9 P. D. 128 ; 53 L. J. Ad. 72 ; 51 L. T. N. S. 604 ; 5 Asp. M. L. 0. 335 ; 33 W. R. 200 119 "British Princess," The, and The "Sedmi Dubrovacki," Mitch. Mar. Reg. March, 1878 61, 63, 217 Brooks V. Macdonell, 1 Y. & C. Ex. 500 293 BrovsTi V. Mullett, 5 C. B. 599 ; 17 L. J. C. P. 227 ; 12 Jur. 204 . .26, 96 V. Wilkinson, 15 M. & W. 391 162, 165, 166, 175, 183 Brunsden v. Humphrey, 11 Q. B. D. 712; 14 ib. 141 ; 52 L. J. Q. B. 756 ; 53 ib. 476 ; 51 L. T. N. S. 529 ; 32 W. R. 944 316 Buchanan v. Rucker, 1 Carapb. 63 ; 9 East, 192 225 " Buckhurst," The, 6 P. D. 152 ; 4 Asp. M. L. C. 484 ; 51 L. J. Ad. 10 ; 46 L. T. N. S. 108 ; 30 W. R. 232 11, 55, 375, 376, 517 Buller r. Fisher, 3 Esp. 67 282, 289 r. Rhodocanachi, 6 Q. B. D. 663 ; 7 Ap. Ca. 333 293 r. Nerot, 1 C. & P. 578 310 Burnard r. Aaron, 31 L. J. C. P. 334 74 Burrcll r. Simpson, 4 Sess. Cas. 4th ser. 177 170, 180 " Busliire," 52 L. T. N. S. 740 ; 5 Asp. M. L. C. 416 124 Busk V. Royal Exchange Assurance Co., 2 B. & Aid. 73 289 Butterfleld r. Boyd, 4 Blatchf. 356 520 "Eyfoged Christcnson," The, and The " WilHam Frederick." 4 App. Cas. 669 ; 41 L. T. N. S. 535 ; 28 W. R. 233 ; 4 Asp. M. L. C. 201 4, 6, 411, 473, 488 Byrne v. Boadle, 2 H. & C. 722 ; 33 L. J. Ex. 13 ; 12 W. R. 279 ; '9 L. T. N. S. 450 34 " Byron," The, 2 New South Wales L. R. Ad. 1 359 " BVwell Castle," Tlie, 4 P. J). 219 ; 4 A.sp. M. L. C. 207 ; 41 L. T. N.S. 747; 28 W. R. 293 45, 428 " C. M. Palmer," The, and The " Laniax," 2 Asp. M. L. C. 94 ; 29 L. T. N. S. 120; 21W. R. 702 4,362, 363 «' C. S. Butler," The, L. R. 4 A. & E. 238 ; 31 L. T. N. S. 549 ; 23 W. R. 113 326,344, 526 and The "Baltic," L. R. 4 A. & E. 178 ; 43 L. J. Ad. 17; 30 L. T.N. S. 475; 22 W. R. 759 13, 301. 302 "Cachapool," The, 7 P. D. 217 ; 4 Asp. M. L. C. 502 ; 46 L. T. N. S. 171 36, 245, 269, 522 XVI TABLE OF CASES. PAGE " Calabar," The, Moss v. The African Steam-slup Co., L. R. 2 P. C. 238 ; 19 L. T. N. S. 768 245, 247, 498 " Calcutta," The, 3 Mar. LaAvCas. 0. S. 336 ; 21 L. T. N. S. 768 . . 491 " Calla," The, Swab. Ad. 465 377 " Calliope," The, 14 P. D. 13S ; 58 L. J. Ad. 76 ; 59 L. T. N. S. 901; 61 (7;. 656 ; 38 W. R. 155 ; 6 Asp. M. L. C. 359, 440; in D.mi. Proe. W. N. 1890, p. 220 377 " Calypso," The, Swab. Ad. 28 315 1 and The " Mississippi," Mitch. Mar. Reg. 1878. . 44 '• Cambria," The, Ad. Div. May, 1877 312, 467 " Cambridge," The, and The " Chase," 4 Bened. 366 197 " Camellia," The, 9 P. D. 27 ; 53 L. J. Ad. 12 ; 50 L. T. N. S. 120 ; 32 W. R. 495 ; 5 Asp. M. L. C. 197 338 " Cameo," The, Lush. 408 316 "Canada," The, Lnsh. 586 112 Canada Shipping Co. r. British Shipowners' Mutual Protection Association, 22 Q. B. D. 727 ; 23 Q. B. D. 342 ; 58 L. J. Q. B. 343, 462 ; 60 L. T. N. S. 863 ; 61 ib. 312 ; 38 W. R. 87 ; 6 Asp. M. L. C. 388, 422 175 " Canadian," The, 1 W. Rob. 343 308 Cannau r. Meaburn, 1 Bing. 465 160 Cardiff Steam-ship Co. r. Barwick. See The " Raisby." Cargo ex Argos, L. R. 3 A. & E. 568 ; 41 L. J. Ad. 89 ; 27 L. T. N. S. 64 ; 21 W. R. 564 ; on app. L. R. 5 P. C. 134 ; 42 L. J. Ad. 1; 28 L. T. N. S. 77 ; 21 W. R. 420 116 Cargo ex " Capella," L. R. 1 A. ic E. 356 ; 16 L. T. N. S. 800 . . 301 Cargo ex " Galam," Br. & Lush. 181 ; 33 L. J. Ad. 97 83 " Carl Johan," The (cited), 3 Hag. Ad. 186 162, 220 Carmichael v. Liverpool Sailing-ship Owners' Mutual Indemnity Association, 19 Q. B. D. 242 ;' 56 L. J. Q. B. 428 ; 57 L. T. N. S. 550 ; 35 W. R. 703 ; 6 Asp. M. L. C. 184 175 " Carnarvon Castle," The, 38 L. T. N. S. 736 ; 20 "W. R. 876 ; 3 Asp. M. L. C. 607 :. 316 " Carolus Rotchers," The, 3 Hag. Ad. 343 (note) 6 " Carrier Dove," The, Br. & Lush. 113 237, 244, 245, 509 " Can-oil," The, 1 Bencd. 286 ; 8 Wall. 302 4, 32, 411, 432 ' ' Carron," The, 1 Sp. E. & A. 91 30, 397 Carruthers r. Sidebotham, 4 M. & S. 77 228, 230, 259, 209 Carshore v. North Eastern Ry. Co., 29 Ch. D. 344 ; 54 L. J. Ch. 760 ; 52 L. T. N. S. 232 ; 33 W. R. 420 319 " Cartsburn," The, 5 P. D. 35 ; 49 L. J. Ad. 14 ; on app. 5 P. D. 59; 41 L. T.N. S. 710; 28 W. R. 378 ; 4 Asp. M. L. C. 202.... 319 " Cashmere," The, 15 P. D. 121 ; 59 L. J. Ad. 57 ; 62 L. T. N. S. 814 ; 38 W. R. G23 327 " Castle Rising," The 301 Castrique v. Behrens, 30 L. J. Q. B. 1G3 225 V. Imrie, 2 L. T. N. S. 180 ; on app. L. R. 4 H. L. 414 ; 39 L. J. C. P. 350 ; 4 L. T. N. S. 143 ; 19 W. R. 1 224, 225 " Cataliiia," The, 2 Sp. E. & A. 23 330 TAlil.K OF CASES. XVll PAGE "Cathcart," The, L. R. 1 A. &E. 314; 16 L. T. N. S. 211 .'ilO " Cathcrina Maria," The, L. R. 1 A. & E. 52 ; 12 Jur. N. S. 380. . 310 " Catherine of Dover," The, 2 Hag. Ad. 145 2, 130 Catherine v. Dickenson, 1 7 How. 170 500 Caton V. Romney, 13 Wend. 387 282 " Catterina Chiazzarc," The, 1 P. D. 368 ; 45 L. J. Ad. 105 ; 34 L. T. N. S. 588 223 Cattlin V. Hills, 8 C. E. 123 15, 107 Cavan v. Stewart, 1 Stark. 525 225 " Cayuga," The. 14 Wall. 270 354, 429, 459, 485 16 Wall, 177 200 Cayzor v. Carron Company. See The " Margaret." " Cella," The, 13 P. D. 82 ; 57 L. J. Ad. 55 ; 59 L. T. N. S. 125 ; 36 AV. R. 540 ; 6 Asp. M. L. C. 293 79, 80, 317 "Celt," The, 3 Hag. Ad. 321 61, 136, 137, 155, 330 " Ceres," The, Swab. Ad. 250 503 " Ceto," The, 14 Ap. Ca. 670 ; 62 L. T. N. S. 1 ; 6 Asp. M. L. C. 479 434, 435, 437, 445, 449 Chadwick v. City of Dublin Steam Packet Co., 6 Ell. & B. 771 . .410, 414 " Challenge," The, Ad. Div. 16th Dec, 1887 235 Chamberlain r. Ward, 21 How. 548 64, 499 " Chancellor," The, 4 Bened. 153 401 " Chanonry," The, 1 Asp. Mar. Law Cas. 569 ; 42 L. J. Ad. 58 ; 28 L. T. N. S. 284 459 Chapman v. Royal Netherlands Steam Navigation Co. (The " Saver- nake"), 4 P. D. 157 : 40 L. T. N. S. 433 ; 48 L,. J. Ch. 449 ; 27 W. R. 554; 4 Asp. M. L. C. 107 134, 138, 142, 169 " Charkieh," The, L. R. 4 A. & E. 120 ; 42 L. J. Ad. 70 ; 29 L. T. N. S. 404 ; 22 W. R. 03 ; 2 Asp. M. L. C. 121 209, 315, 316 • L. R. 4 A. & E. 59 ; 42 L. J. Ad. 17 ; 28 L. T. N. S. 513 ; 1 Asp. M. L. C. 581 220 L. R. 8 Q. B. 197 ; 42 L. J. Q. B. 75 ; 28 L. T. N. S. 190 ; 21 W. R. 437 220 " Charles Amelia," The, L. R. 2 A. & E. 330 ; 38 L. J. Ad. 17 ; 19 L. T. N. S. 429 ; 17 W. R. 624 80 " Charles Chaloner," The, 19 Lower Canada Jur. 197 41 " Charlotte Raab," The, Brown Ad. 453 418, 491, 511, 512 Chartered Mercantile Bank of London, India and China v. Nether- lands India Steam Navigation Co., 9 Q. B. D. 118 ; 31 W. R. 445 ; 46 L. T. N. S. 530; 51 L.J. Q. B. 393; onapp. 10 Q. B. D. 521 ; 48 L. T. N. S. 546 ; 5 Asp. M. L. C. 65 ; 52 L. J. Ad. 220. .95, 104, 124, 134—144, 170, 212, 220, L'81— 285 " Chase," The, Stuart's Vice-Ad. Rep. Lower Canada (1875), 361 . . 85 Chasteauneuf v. Delangc, 7 App. Cas. 127 68 «' Cheshire Witch," The, Br. & Lush. 362 319 "Chieftain," The, Br. & Lush, 104 ; 8 L. T. N. S. 120 ; 32 L. J. Ad. 106 ; 9 Jur. N. S. 388 82, 87 "Chilian," Tlie, 4 Asp. M. L. C. 473; 45 L. T.N. S. 623 54 "Chim£era,"The, 8P. D. 130 (cited); 52L. J. Ad. 55; 49L. T.N. S. 89;31W. R. 738 82 M. b Xviii TAI5LE OF CASES. PAGE "China," Tlie, 7 Wall. 53 76, 279 China Merchants' Steam Navisration Co. v. Bignold. See The " Ilochung" and The "Lapwing." Christian v. Coombe, 2 Esp. 489 310 «' Christiana," The, 2 Hag. Ad. 183 ; nom. Hammond v. Rogers, 7 Moo. P. C. C. 160 211, 218, 234, 238, 242— 249, n05 " Christiansborg," The, 10 P. D. 141 ; 54 L. J. Ad. 84 ; 53 L. T. N. S. 612 ; 5 Asp. M. L. C. 491 223 "Christina," The, 3 "W. Rob. 27; nom. Petley v. Catto, 6 Moo. ' P. C. C. 371 194, 197, 198, 199, 302 Churchward v. Palmer. See The " Vivid." " Chuzan," The, 53 L. T. N. S. 60 ; 5 Asp. M. L. C. 476 . .42, 369, 388 " Citv of Antwerp," The, and The "Friedrich," Inman v. Reck, L. "R. 2 P. C. 25 ; 37 L. J. Ad. 25 4, 30, 32, 431, 489 " City of Berlin," The, 2 P. D. 187 ; 47 L. J. Ad. 2 ; 37 L. T. N. S. 307 ; 25 W. R. 793 ; 3 Asp. M. L. C. 491 336 " City of Brooklyn," The, 1 P. D. 276 ; 34 L. T. N. S. 932 ; 3 Asp. Mar. Law Cas. 230 ; 24 W. R. 1056 391, 399, 401, 404, 498 " City of Buenos Ayres," The, 1 Asp. Mar. Law Cas. 169 ; 25 L. T. N. S. 672 119, 120, 177, 337 " City of Cambridge," The, (costs) 35 L. T. N. S. 781 ; 3 Asp. Mar. Law Cas. 307 336 (pilot), L. R. 4 A. & E. 161 ; 43 L. J. Ad. 6 ; 29 L. T. N. S. 816 ; 22 W. R. 391 ; on app. L. R. 5 P. C. 451 ; 43 L. J. Ad. 11 ; 30 L. T. N. S. 439 ; 22 W. R. 578 ; 2 Asp. M. L. C. 193, 239 235, 244, 249, 269 "Citv of Carlisle," The, 11 L. T. N. S. 33 ; 2 Mar. Law Cas., 0. S. 91 "; Br. & Lush. 363 268 «'City of Delhi," The, 58 L. T. N. S. 531 ; 6 Asp. M. L. C. 269 . , 576 " City of Hartford," The, 7 Bened. 350 479 and The "Unit," 7 Otto, 323 197, 286 " City of Lincohi," The, 15 P. D. 15 ; 59 L. J. Ad. 1 ; 62 L. T. N. S. 49; 38 W. R. 345; 6 Asp. M. L. C. 475 110, 114 "City of London," The, or The "London," Morgan v. Sim, 11 Moo. P. C. C. 307 ; Swab. 245, 300 ; 5 W. R. 678 ....2, 30, 309, 363, 366, 375 "City of Manchester," The, 5 P. D. 3 ; 48 L. J. Ad. 70 ; 40 L. T. N. S. 591 ; on app. 5 P. D. 221 ; 4 Asp. Mar. Law Cas. 106 ; 42 L. T. N. S. 521 ; 49 L. J. Ad. 81 107, 328, 330 "City of Lucknow," The, 51 L. T. N. S. 907; 5 Asp. M. L. C. 340 338 " City of Mecca," The, 5 P. D. 28 ; 41 L. T. N. S. 444 ; 28 W. R. 260 ; 49 L. J. Ad. 17 ; on app. 6 P. D. 106 ; 50 L. J. Ad. 53 ; 44 L. T. N. S. 750 ; 4 Asp. Mar. Law Cas. 187, 412 225 See Smith, In re. " City of Paris," The, 14 Blatchf. 531 286, 509 1 Bened. 174 ; 9 Wall. 634 4, 452, 462 "City of Peking," The (No. 1), 14 Ap. Ca. 40; 58 L. J. Ad. 64; 61 L. T.N. S. 136; 6 Asp. M. L. C. 396.... 11, 13, 31, 504, 507, 515 TA)!I,K OF CASES. XIX PAGE " City of Peking," The (No. 2), 15 Ap. Ca. 438 ; 59 L. J. P. C. 88 ; 63 L. T. N. S. 722 ; 39 W. R. 177 120 " City of Rome," The, Ad. Div. 11th May, 1887 121 " City of Washington," The, 2 Otto, 31 G4, 380, 517 "Civilta," The, and The " Restless," 13 Otto, G99 185, 197, 286 «' Clan Gordon," The, 7 P. D. 190; 46 L. T. N. S. 490 ; 30 W. R. 691 ; 4 Asp. M. L. C. 513 229, 233, 256 " Clan Sinclair," The. See The " Margaret." Claney v. Harrison, 4 Victoria L. R. 437 67 " Clara," The, 12 Otto, 200 130, 158, 498 Swab. Ad. 1 84 " Clara KiUam," The, L. R. 3 A. & E. 161 ; 39 L. J. Ad. 50 ; 23 L. T. N. S. 27 ; 19 W- R- 25 85 2 Quebec L. R. 56 64 " Clarence," The, 1 Sp. E. & A. 206 309, 410 3 W. Rob. 283 Ill, 112, 120, 121 " Clarita," The, and The " Clara," 23 Wall. 1 94, 197, 301, 507 Clark V. Chambers, 3 Q. B. D. 327 16 Clayards v. Dethick, 12 Q. B. 439 4 " Cleadon," The, 1 Mar. Law Cas. 0. S. 41 ; Lush. 158; 4 L. T. N. S. 157 ; 14 Moo. P. C. C. 97 185 See The " Creadon." " Clement," The, 1 Sprague, 257 ; 2 Curtis, 363 460 " Cleopatra," The, Swab. Ad. 135 349, 421, 424 " Clutha," The, 45 L. J. Ad. 108 ; 35 L. T. N. S. 36 321 " Clydaeh," The, 51 L. T. N. S. 668 ; 5 Asp. M. L. C. 336 464 "Clyde," The, Swab. Ad. 23 Ill, 112 Clyde Navigation Co. v. Barclay, 1 App. Cas. 790 ; 36 L. T. N. S. 379 236, 24G, 266, 497, 500 Coey V. Smith, 22 Court of Sess. Cas. 955 291 " Coleman," The, and The " Foster," Brown, Ad. 456 196 " Collier," The, L. R. 1 A. & E. S3 ; 12 Jui-. N. S. 789 91 " ColUngrove," The, 10 P. D. 158 ; 54 L. J. Ad. 78 ; 53 L. T. N. S. 681 ; 34 W. R. 156 ; 5 Asp. M. L. C. 483 87, 319, 338 " Cologne,'' The, and The "Ranger," Malcolmson v. General Steam Nav. Co., L. R. 4 P. C. 519 ; 27 L. T. N. S. 769 ; 21 W. R. 273. . 343, 427, 468, 474 " Colonia," The, 3 Not. of Cas. 13, note 350 "Colorado," The, 1 Otto, 692 403, 406 " Columbia," The, 10 Wall. 246 422 Columbia Tonnage and Transport Co. f . Sewell, 9 Duval (Canada) 527 200 " Columbus," The, 1 Pritch. Ad. Dig. 2nd ed. 199 ; 3rd ed. 239 31 2 Mar. Law Cas. 0. S. Dig. 730 512 Abbot. Ad. 384 509 • 3 W. Rob. 158 Ill, 112, 116, 120, 121 " Comet," The, and The " Silver Spray," 9 Blatchf. 323 ; 22 L. T. N. S. 732 ; 499 l>2 XX iM'.i.K OF (•asp:s. PAGK " Commerce," The, 3 W. Rob. 287 486, 489 IG Wall. 33 478 " Comus," The, 2 Dods. 464 103 Concha v. Concha. 11 Ap. Ca. 541 ; 56 L. J. Ch. 257; 55 L. T. N. S. 522 ; 35 W. R. 477 224 "Concordia," The, and The "Esther," L. R. 1 A. & E. 93; 14 L. T. N. S. 896 343, 485, 490, 491, 492 " Condor," The, and The " Swansea." See The " Swansea." Conservators of the Thames v. Hall, 3 Mar. Law Cas. 0. S. 73 ; 18 L. T. N. S. 361 ; 16 W. R. 971 232 " Consett," The, 5 P. D. 229 120, 333 5 P. D. 52, 77 ; 42 L. T. N. S. 33 ; 4 Asp. Mar. Law Cas. 230 ; 28 W. R. 622 ; 49 L. J. Ad. 24 332, 333, 334 " Constantia," The, 62 L. T. N. S. 236; 6 Asp. M. C. 478; 38 W. R. 273 396 " Constantme," The, 4 P. D. 156 ; 27 W. R. 747 337 " Constitution," The, 10 L. T. N. S. 894 ; on app. ibid. 895 ; 2 Moo. P. C. C. N. S. 453 417, 424 4 P. D. 39 ; 48 L. J. Ad. 13 ; 40 L. T. N. S. 219 220, 221 " Continental," The, 14 Wall. 345 64 Cope V. Doherty, 4 K. & J. 367 ; 6 W. R. 537 ; 31 L. T. 173 ; on app. 2 De G. & J. 614 ; 27 L. J. Ch. 600 ; 6 W. R. 695 ; 31 L. T. 307 162, 209, 220 " Corimia," The, 35 L. T. N. S. 781 ; 3 Asp. Mar. Law Cas. 307 ; 25 W. R. Dig. 259 336 "Corsica," The, 9 WaU. 630 354, 452, 475, 479, 491 " CosmopoUtan," The, 9 P. D. 35, n. ; 5 Asp. M. L. C. 212, n 316 " Courier," The, Lush. 541 209 Courtney v. Cole, 19 Q. B. D. 447; 56 L. J. M. C. 141 ; 57 L. T. N. S. 409 ; 36 W. R. 8 ; 6 Asp. M. L. C. 169 271, 273 " Coxon," The, 2 Mar. Law Cas. O. S. Dig. 549 517 " Creadon," The, 54 L. T. N. S. 880 ; 5 Asp. M. L. C. 585 ... . 26, 125, 174 337 "Crescent," The, and The " Rowland Hill," Stuart's Vice-Ad. Rep.' Lower Canada (Lond. 1858), 289 518 " Cricket," The, and The "Endeavour," 5 Asp. Mar. Law Cas. 63 ; 48 L. T. N. S. 535 172 Croft V. Alison, 4 B. & Aid. 590 70 Culbertson v. Shaw, 18 How. 584 379, 501 " Cumberland," The, 5 L. T. N. S. 496 106, 314 ■ Stuart's Vice-Ad. Rep. Lower Canada (Lond. 1858), 75 76, 603 Cunningliam's case. Boll's C. C. 220 299 Cushing V. Owners of The " John Eraser." See The " James Grey." Cuthbcrtson v. Parsons, 12 Q. B. 304 ; 21 L. J. C. P. 165 ; 19 L. T. N S. 297 75 " Cybele," The, 2 P. D. 224 ; 47 L. J. Ad. 13 ; on app. 3 P. D. 8 ; 47 L. J. Ad. 86 ; 37 L. T. N. S. 773 102, 103 5 Quebec, L. R. 262 391 TABLE OF CASES. XXI PAGE " Cygnus," The, 2 L. T. N. S. 19G 56 " Cynthia," The, 2 P. D. 52 ; 46 L. J. Ad. 58 ; 36 L. T. N. S. 184 . . 97, 244, 249, 2.52, 327 " Czar," The, 19 Lower Canada Jurist, 197 85 D. "D. S. Gregory," The, 6 Blatchf . 528 508 " Daioz," The, 3 Asp. Mar. Law Cas. 477 ; 47 L. J. Ad. 1 ; 37 L. T. N. S. 137 239, 332 Dale V. Hall, 1 Wils. 281 281 Dalton V. An>?ns. 6 App. Ca. 740; 50 L. J. Q. B. 689; 44 L. T. N. S. 844 ; 30 W. R. 196 73 DalycU r. Tyrer, E. B. & E. 899; 28 L. J. Q. B. 52; 31 L. T. 214 71, 190 Daniel v. Metropolitan Railway Co., L. R. 3 C. P. 216 ; 37 L. J. C. P. 146 ; 18 L. T. N. S. 57 ; 16 W. R. 564 : on app. (Ex. Ch.) L. R. 3 C. P. 591 ; 37 L. J. C. P. 280 ; 16 W. R. 988 ; on app. (H. L.), L. R. 5 H. L. 45 ; 40 L. J. C. P. 121 ; 24 L. T. N. S. 815 . . 31, 34 "Dantzic," The, Br. &L. 102; 32 L. J. Ad. 164 288 «' Dapper," The, and The "Lady Normanby," 14 L. T. N. S. 895 ; Holt, 79 352 Dapueto v. Wylie. See The "Pieve Superiore." DarroU v. Tibbits, 5 Q. B. D. 560; 50 L. J. Q. B. 33 ; 42 L. T. N. S. 797 ; 29 W. R. 66 293 " David Mon-is," Tlie, Brown, Ad. 273 5 Davidson v. Burnand, L. R. 4 C. P. 117 ; 38 L. J. C. P. 73 ; 19 L. T.N. S. 782; 17W. R. 121 289 Davies v. Davies, 9 C. & P. 252 310 Davies r. Mann, 10 M. & W. 546 18—22, 46, 144 "De Brus," The, Iv. Rep. Ad. 1 Eq. 72 265 De Lovio v. Boit, 2 Gall. 398 79, 210 De Vaux v. Salvador, 4 Ad. & El. 420 ; 5 L. J. K. B. 134 . . 132, 289, 290 Dean r. Richards. See The " Europa." " Delta," The, and The " Erminia Foscolo," 1 P. D. 393 ; 45 L. J. Ad. Ill ; 35 L. T. N. S. 370 223, 224 " Demetrius," The, L. R. 3 A. & E. 523 ; 41 L. J. Ad. 69 ; 26 L. T. N. S. 324; 20 W. R. 761 124, 286, 311, 314, 317 Denison v. Seymour, 9 Wendel, 9 66, 288 Dennis r. Tovcll, L. R. 8 Q. B. 10; 42 L. J. M. C. 33 ; 27 L. T. N. S. 482; 21 W. R. 170 73 " Desdcmona," The, Sw. 158 82 " Despatch," The, Lush. 98 308 14 Moo. P. C. C. 83; 3 L. T. N. S. 219.. 8, 113, 505, 506, 508 " Dexter," The, 23 Wall. 69 352 "Diana," The, 2 Asp. Mar. Law Cas. 366; 31 L. T. N. S. 203. .119, 301 (pilot), 1 W. Rob. 131 ; nora. Stuart v. Iscmonger, 4 Moo. P. C. C. 11 89,238, 246, 496 XXU TABLE OF CASES. PAGE "Diana," The (jurisdiction), Lush. 539 ; 33 L. J. Ad. 57 ; 7 L. T. N. S. 397 ; 9 Jm-. N. S. 26 209, 210 "Di-by Grand," The 85, 137, 204 Dimes v. Petley, 15 Q. B. 276 ; 14 Jui-. 113 ; 19 L. J. Q. B. 449 . . 96 " Dionc," The, 52 L. T. N. S. 61 ; 5 Asp. M. L. C. 347 171 Dixon V. Sadler, 5 M. & W. 405 ; on app. 8 M. & W. 895 289 Dobree v. Schroeder, 2 My. & Cr. 489 167 Dock Company of Hull v. Browiie, 2 B. & Ad. 43 267 Dodds V. Embleton, 9 Dow. & Ry. 27 230 Donn V. Lij^praann, 5 CI. & Fin. 1 208 Doolan v. Midland EaUway Co., 2 App. Cas. 792 ; 37 L. T. N. S. 317 ; 25 W. R. 882 178, 287 "Dordogne," The, 10 P. D. 6 ; 54 L. J. Ad. 29 ; 51 L. T. N. S. 650 ; 5 Asp. M. L. C. 328 ; 33 W. R. 360 348, 399, 400—405, 435—451 Dormont v. Furness RaU. Co., 11 Q. B. D. 496 ; 52 L. J. Q. B. 331 ; 49 L. T. N. S. 134; 5 Asp. M. L. C. 127; 47 J. P. 711 99, 361 Dorrington's Case, Moore, 916 209 "Douglas," The, 4 Asp. Mar. Law Cas. 510 ; 46 L. T. N. S. 488 ; 51 L. J. Ad. 55 ; 30 W. R. 692 ; on app. 7 P. D. 151 ; 5 Asp. M. L. C. 15; 51 L.J. Ad. 89 ; 47 L. T. N. S. 502 25, 57, 96, 97, 99, 174, 361 " Douglass," The, Brown, Ad. 105 499 Dowell V. General Steam Navigation Co., 5 E. & B. 195 ; 26 L. J. Q. B. 59 20, 63, 451 "Druid," The, 1 W. Rob. 391 70, 78, 89, 90, 194 Dublin Port and Docks Board v. Shannon, Ir. Rep. 7 C. L. 116 ; 21 ^V. R. Dig. 233 260, 266 " Duchess de Brabant," The, Sw. Ad. 264 87 Dudgeon t;. Pembroke, L. R. 9 Q. B. 581 ; 2 App. Cas. 284 ....26, 289 Dudman and Brown v. Dublin Port and Docks Board, Ir. Rep. 7 C. L. 518 24, 102, 144, 202. 236 "Due Checchi," The, L. R. 4 A. & E. 35, n. ; 26 L. T. N. S. 593 ; 20 W. R. 686 ; 1 Asp. M. L. C. 294 309 " Duke of Buccleugh," The, 15 P. D. 86 ; 02 L. T. N. S. 94 ; 6 Asp. M. L. C. 471 42, 44, 368, 370 " Duke of Cornwall," The, 1 Pr. Ad. Dig. 2nd ed. 135 ; 3rd ed. 201 508, 520 "Duke of Manchester," The, 10 Jur. 863 ; 2 W. Rob. 470 ; 4 Not. of Cas. 575 ; on app. nom. Shersby v. Hibbert, 5 Not. of Cas. 470 . . 199, 250 "Duke of Sussex," The, 1 Not. of Cas. 101 ; 1 W. Rob. 270 194, 198, 250 1 W. Rob. 274 339, 349, 463 " Duke of Sutherland." See The ' ' Magnet." " Dumfries," The, Swab. Ad. 63 ; on app. il>. 125 ; 10 Moo. P. C. C. 461; 28 L. T. 110 212, 215, 337, 349, 409, 410 "Duna," The, 5L. T. N. S. 217 82 "Dundee," The, 1 Hag. Ad. 109 ; 2 Hag. Ad. 137 ... .72, 80, 162, 166, 177, 212 Times, 6th Dec. 1821 340 TAHLE OF CASES. XXIU PAGE " Dunclm," The, 9 P. D. liJl ; o Asp. Mar. Law Caa. 304 ; 32 W. R. 970; 53 L. J. Ad. 81 ; .31 L. T. N. S. 214. .340, 36'J, 375, 387, 388, 390 " Dura," The (o Irish Jurist, N. S. 384), 1 Pritdi. Ad. Dig. (3rd ed.) 289, 290 35, 501 " Dutchess," The, 6 Bened. 48 506 E. " E. Z." The, 33 L. J. Ad. 200 308 " Eagle," The, Lush. 10 310 " Eagle," The, and The " Hopewell," Noble c. Wilson 149, 150 " Earl of Auckland," The, Lush. 164 ; 30 L. J. Ad. 121 ; 3 L. T. N. S. 786 ; on app. Lush, 387 ; 5 L. T. N. S. 558 ; 10 W. R. 124. .228, 260,263,264,272,273 «' Earl of Dumfries," The, 10 P. D. 31 ; 54 L. J. Ad. 83 ; 51 L. T. N. S. 906 ; 33 W. R. 568 ; 5 Asp. M. L. C. 342 309 " Earl Grey," The, 1 Sp. 180 338 "Earl Spencer," The, L. R. 4 A. & E. 431 ; 33 L. T. N. S. 235; 23 W. R. 661 312, 391, 498, 504 " Earl Wemyss," The, 6 Asp. M. L. C. 364 ; 61 L. T. N. S. 289 . .358, ■^ 410, 412, 414, 475 •'East LotMan," The, Lush. 241 308 " Ebenezer," The, 2 W. Rob. 206 307, 404 "Ebor," The, II P. D. 25; 54 L. T. N. S. 200 ; 34 W. R. 448; 5 Asp. M. L. C. 560 329, 401, 435, 448 " Echo," The, 7 Bened. 70 200 " Eclipse," The, and The " Royal Consort," Holt, 220 . . . .461, 491, 511 and The " Saxouia." See The " Saxonia." " Economy," The, 1 Pritch. Ad. Dig. {3rd ed.) 286 252 " Ecossaise " The ^^^ "Eden," The, 2 W. Rob. 442 ; 10 Jur. 296. .227, 230, 259, 260, 266, 278 " Edgworth," The "^28 "Edinburgh," The 380 " Edith," The, Ir. Rep. 10 Eq. 345 375, 387 Edwards, Robertson & Co. v. Falmouth Harbour Commissioner.s. See The " Rhosina." " Effort," The, 5 Not. of Cas. 279 518 " Egerateia," The, 38 L. J. Ad. 40 319 Eglinton v. Norman, 46 L. J. Ex. 557 90, 97, 293 "Ejrvptian," The, 1 Mar. Law Cas. O. S. 368; on app. 1 Moo. P. C C.N. S. 373 503,504 (damages), 2 Mar. Law Cas. O. S. 56 ; 10 L. T. N. S. 910 117 "EHean Dubh," The, 49 L. T. N. S. 444 ; 5 Asp. M. L. C. 154 . . 334 " Eleanor," The, and The " Alma," 2 Mar. Law Cas. O. S. 240 . . 31, 414,415,416,461,510 " Electra," The, 1 Bened. 282 -. 397 G Bened. 189 12 XXIV TABLE OF CASES. PAGE "Electric," The, and The " EUa Maiy " 464 "Eleonora,"The, 17 Blatchf. 88 286, 361 " Eleonore," The, Br. & L. 185 338 "EliD," Tlie, 8 P. D. 39 ; 51 L. J. Ad. 77: on app. 8 P. D. 129 ; 62 L. J. Ad. 55 ; 49 L. T. N. S. 87 ; 31 W. R. 736 ; 5 Asp. M. L. C. 120 82 "Eliua," The, 5 P. D. 237, n 116, 333 " Eliza," The, and The " Orinoco," Holt, 98 62, 422, 485 " Eliza Jane," The, 3 Hag. 335 210 <'Eliza Keith," The, and The "Langshaw," 3 QuebecL. R. 143. .41, 143 "Elizabeth," The, 3 L. T. N. S. 159 215 and The " Adalia," 3 Mar. Law Cas. 0. S. 345 ; 22 L. T. N. S. 74 45, 374 . and The "Eleanor," Dove c. Masters; Marsd. Ad. Ca. 271 157 and The " Lotus," 2 Mar. Law Cas. O. S. 238 . . 4 " Elizabeth Jenkins," The, 5 Dav. 514 475 " Ellen S. Terry," The, 7 Bened. 401 518 Elmore v. Hunter, 3 C. P. D. 116 ; 47 L. J. M. C. 8 ; 38 L. T. N. S. 179 584 " Elphinstone," The, Ad. Div. May 27, 1887 47 " Elysia," The, 46 L. T. N. S. 840 ; 4 Asp. M. L. C. 540 . .33, 399, 404 Emery v. Huntingdon, 12 Amer. Rep. 725 297 " Emily," The, 67 L. T. 214 72, 81, 91 "Emma," The, 2 W. Rob. 315 310 "Emmy Haase," The, 9 P. D. 81 ; 53 L. J. Ad. 43 ; 50 L. T. N. S. 372; 5 Asp. M. L. C. 216; 32 W. R. 880 47, 57, 62, 449 " Emperor," The, and The " Lady of the Lake," Holt, 37 ; ib. 202. .368, 369 . and The "Zephyr," Holt, 24 ; 12 W. R. 890. .310, 363, 491 " Erapire-State," The. See Whitney v. The " E. S." "Empress Eugenie," The, Lush. 138 117—119, 322, 333 "Empusa," The, 5 P. D. 6 ; 48 L. J. Ad. 36 ; 41 L. T. N. S. 383 ; 28 W. R. 263 ; 4 Asp. M. L. C. 185 172, 180, 321, 337 " Endeavour," The. See The " Cricket." (No. 2, Damages) 62 L. T. N. S. 840 Ill "Energy," The, L. R. 3 A. & E. 48 ; 39 L. J. Ad. 25 ; 23 L. T. N". S. 601 ; 18 W. R. 1009 . .24, 27, 85, 86, 137, 144, 191, 200—206, 236, 248 " England," The, 5 N. of C. 170 307, 308 " Englishman," The, 3 P. D. 18 ; 47 L. J. Ad. 9 ; 37 L. T. N. S. 412 42, 63, 217, 375, 387 32 L. T. N. S. 756 333 " EoHdes," The, 3 Hag. Ad. 367 116 " Ericsson," The, Swab. Ad. 38 349 " Esk," The, and The Gitana," L. R. 2 A. & E. 350 ; 88 L. J. Ad. 33 ; 20 L. T. N. S. 587 ; 17 W. R. 1064 366, 378 and The " Niord," L. R. 3 P. C. 436 ; 24 L. T. N. S. 167 353, 392, 467, 468, 474 TABLE OF CASES. XXV PAGE " Essequibo," The, 13 P, D. 51 ; 57 L. J. Ad. 29 ; 58 L. T. N. S. 596 ; 6 Asp. M. L. C. 276 394 " Ettrick," The, 6 P. D. 127 ; nom. Prehn v. Bailey, 4 Asp. M. L. C. 428, 465 ; 50 L. J. Ad. 65 ; 44 L. T. N. S. 817 ; on app. 45 L. T. N. S. 399 169, 177, 297, 301, 303 " Europa," The, 14 Jur. 627 7, 399, 501 13 Jur. 856 309, 310 Br. & L. 210 79 Dean v. Richards, 32 L. J. Ad. 188 ; 9 Jur. 699 ; on app. Br. & Lush. 89 ; 2 Moo. P. C. C. N. S. 1 50 " European," The, 10 P. D. 99 : 54 L. J. Ad. 61 ; 52 L. T. N. S. 868; 33 W. R. 937; 5 Asp. M. L. C. 417 24 European and Australian Royal Mail Co. v. Peninsular and Oriental Steam Nav. Co., 14 L. T. N. S. 704 344 "Evangelismos," The, Xenos v. Aldersley, Swab. Ad. 378 ; 12 Moo. P. C. C. 352 319, 330 "Evanffelistria," The, 25 W. R. 255 ; 3 Asp. M. L. C. 264 ; 35 L. T. N:S. 410; 46L. J. Ad. 1 209 Everard v. Kendall, L. R. 5 C. P. 428 : 39 L. J. C. P. 234 ; 22 L. T. N. S. 508 ; 18 W. R. 892 82, 325, 326 Ewer V. Ambrose, 4 B. & C. 25 310 "Excelsior," The, L. R. 2 A. & E. 268 ; 37 L. J. Ad. 54 ; 19 L. T. N. S. 87 80, 97, 98, 252, 500, 505 Co. ^^ Smith, 2 L. T. N. S. 90 291 '< Exchange," The, 10 Blatchf. 168 408, 508 " Explorer," The, L. R. 3 A. & E. 289 ; 40 L. J. Ad. 41 ; 23 L. T. N. S. 604 ; 19 W. R. 166 222 F. Fairless v. Thorsen. See The " Good Intent." " Fairport," The, 8 P. D. 48 ; 52 L. J. Ad. 21 ; 48 L. T. N. S. 536 ; 31 "W. R. 616 ; 5 Asp. M. L. C. 62 80 " Fairy," The, 1 Sp. 298 40 " P\alcon," The, 19 Wall. 75 4,432 "Falk," The, 47 L.T.N. S. 308 ; 4 Asp. Mar. Law Cas. 592.. 87, 88, 314 "Falkland," The, and The "Navigator," Br. & Lush. 204 ; 9 L. T. N. S. 1 313, 462, 476, 510 " Fama," The, 2 W. Rob. 184 230, 263 " Fanita," The, 14 Blatchf. 545 : 496 " Fanny M. Carvill," The, L. R. 4 A. & E. 417, 422 ; 44 L. J. Ad. 1 ; 23 W. R. 598 ; on app. 2 Asp. Mar. Law Cas. 565 ; 44 L. J. Ad. 34 ; 32 L. T. N. S. 646 ; 24 W. R. 62....41, 42, 46, 63, 217, 308 " Farewell," The, 8 Quebec L. R. 87 185, 206, 462, 477 " Fan-agut," The, 10 Wall. 334 58, 64 Fautley v. King, The "John" and the "Merry Rose" 146 Faye c. Graham, The "Three Relations" and The "Brittania," Marsd. Ad. Ca. 331 153 ♦■-• XX^I TABLE OF CASES. PAGE " Favorita," The, 18 WaU. 598 4, 514 "Fenham," The, L. R. 3 P. C. 212 IS, 30, 40, 43, 356 Fenton v. Dublin Steam Packet Co., 8 Ad. & El. 835 71, 191 Ferguson v. Mahon, 11 Ad. & Ell. 179 225 Ferguson and Hutchinson, Rv parte, L. R. 6 Q. B. 280; 40 L. J. Q. B. 105; 24L. T. N. S. 96; 19 W. R. 746 61,63,326,344 "Fidelity," The, 16Blatchf. 569 103 "Figlia Maffgiore," The, L. R. 2 A. & E. 106 ; 37, L. J. Ad. 52 ; 18 L. T. N. S. 532 ; 16 W. R. Dig. 15 288 " Fire Queen," The, 12 P. D. 147 ; 56 L. J. Ad. 90 ; 57 L. T. N. S. 312 ; 36 W. R. 15 ; 6 Asp. M. L. C. 146 54, 59 Fletcher v. Braddick, 2 N. R. 182 71, 287 "Flint," The, 6 Not. of Cas. 271 472, 516 "Flora," The, Ad. Ct. 28th June, 1815 156 L. R. 1 A. & E. 45; 35 L. J. Ad. 15 ; 14 L. T N. S. 192 81,87 " Flora Macdonald," The, and The "Palestine," Holt, 42 362 " Florence Bragington," The, 2 Mar. Law Caa. O. S. 237 422 " Florence Nightingale," The, Br. & L. 29 337 Flower v. Bradley, 44 L. J. Ex. 1 316 " Flying Fish," The, Br. & Lush. 436 ; 2 Mar. Law Cas. O. S. 221 ; 3 Moo. P. C. C, N. S. 77; 34 L. J. Ad. 113 114, 117 Forbes v. Lee Conservancy Board, 4 Ex. D. 116 ; 48 L. J. Q. B. 402 ; 27 W. R. 688 98 Forward v. Pittard, 1 T. R. 27 281 FoscoUno, 52 L. T. N. S. 866 ; 5 Asp. M. L. C. 420 180, 320 " Foyle," The, Lush. 10 310 France v. Gaudet, L. R. 6 Q. B. 199 122 "Francis King," The, 7 Bened. 11 200 "Franconia," The, Harris v. Hamburg, &c,, Ge.sellschaft, owners of the F. (writ), 2 C. P. D. 173 ; 40 L. J. C. P. 363 304 (overtaking ship) 2 P. D. 8 ; 35 L. T. N. S. 721 ; 25 W.R. 197.. 70, 342, 354, 422, 429,451, 457,458,460, 475,476, 519 ■ (jurisdiction, loss of life) 2 P. D. 163; 46 L. J. Ad. 33 ; i*. 71 ; 24 W. R. 699 122, 318 (tonnage) Hamburg, &c., Gcsellschaft v. Bui-rell 38L. T. N. S. 719; 26 W. R. 743 ; on app. 3 P. D. 164 ; 39 L. T. N. S. 57 ; 27 W. R. 218 170 (Criminal Jurisdiction). See Reg. v. Keyn. 4 Bened. 181 403 " Frank," The, 2 Quebec L. R. 295 405 Frankland," The, L R. 3 A. & E. 511 ; 41 L. J. Ad. 3 ; 25 L. T. N. S. 889 ; 20 W. R. 592 ; 1 Asp. M. L. C. 207 306 " Frankland," The, and The "Kestrel," L. R. 4. P. C. 529 ; 27 L. T. N. S. 633 136, 145, 402, 445, 448, 452 " Franz Sigel," The, 14 Blatchf. 480 ; 6 Bened. 550 515 Frayes v. Worms, 10 C. B. N. S. 149 224 Frazer v. Cuthbcrtson, 6 Q. B. D. 93 ; 50 L. J. Q. B. 277 ; 29 W.R. 396 68 TAIM.E OF CASKS, XXVU I'AGE "FreeStato," The, Brown, Ad. 251 ; 1 Otto, 200 ....34o, 352, 451, 470 "Freedom," The, L. R. 3 A. k E. 495 ; 41 L. J. Ad. 1 ; 25 L. T. N. S. 392 87, 28S, 318 Fretz r. Bull, 12 IIow. 4G6 520 " Friedebor-r," The, 10 P. T>. 112 ; 54 L. J. Ad. 75 ; 52 L. T. N. S. 837 ; 33 W. R. 687 ; 5 Asp. M. L. C. 426 334 "Friends," The, 1 W. Rob. 478 ; 4 Moo. V. C. C. 314 . . 17, 135, 296, 339, 4G8, 484 and The " Hopewell," Lambert c. Lorrimer 157 "Friends Goodwill," The, and The "Peggy," Stoker c. Hutton, Marsd. Ad. Ca. 328 151, 313 " Fruiter." The, and The " Fingal," 2 Mar. Law Cas. O. S. 291 ; 13L. T. N. S. 611 424 " Fyenoord," The, Swab. Ad. 374 216, 343, 465, 527 G. " Gffitano." The, and The " Maria," 7 P. D. 1 ; 51 L. J. Ad. 7 ; 45 L T. N. S. 510 ; 30 AV. R. 108 ; 4 Asp. Mar. Law Cas. 470 ; on app. ib. 535 ; 7 P. D. 137 ; 51 L. J. Ad. 67 ; 46 L. T. N. S. 835 ; 30 VV. R. 766 IGl " Gala," The, and The " Zenobia," Holt, 112 430 " Galatea," The, 2 Otto, 439 197, 514 Galer. Laurie, 5 B. & C. 156 162, 166, 169, 181 Gamett v. Bradley, L. R. 3 Ap. Cas. 944 338 " Garston," The. See Sailing Ship Garston Co. v. Hickie, Borman &Co. " Gazelle," The, 5 Not. of Cas. 101 409 1 W. Rob. 471 ; 2 W. Rob. 279 Ill, 312, 4G8 " General Birch," The, 6 Quebec L. R. 400 377 ■ " General De Caen," The, Swab. Ad. 9 240, 242 "General Gordon," The, 63 L. T. N. S. 117 329, 501 General Iron Screw Collier Co., r. Moss. Sec The " Araxes." V. Schurmanns, 1 J. & H. 180 ; 29 L.J. Ch. 877; 4L. T. N. S. 138; 8 W. R. 732 177, 219, 220 " General Lee," The, 3 Mar. Law Cas. 0. S. 204 ; 19 L. T. N. S. 750; 17 W. R. Dig. 19 434, 451,475 General Mutual Insurance Co. ;-. Sherwood, 14 How, 351 289, 290 " General Parkhill," The, and " The Centui-ion," 2 Mar. Law Cas. O. S. Dig. 552 -9<5 General Steam Navisration Co. v. British and Colonial Steam Navi- gation Co., L. R. 3^Ex. 330 ; 37 L. J. Ex. 194 ; 19 L. T. N. S. 357; 17 W. R. 615 ; on app. L. R. 4 Ex. 238; 38 L. J. Ex. 97 ; 20 L. T. N. S. 581; 17 W. R. 741 229, 261, 272 r.Gillou, 11 M. &W. 877.. 214, 224, 229 . v. London and Edinburgh Shipping Co., 2 Ex. D. 467 ; 36 L. T. N. S. 743 ; 47 L. J. Q. B. D. 77 ; 25 AV. R. 694 260, 330, 332 SXVlll TABLE OF CASES. PAGE General Steam Navigation Co. v. Mann, 14 C. B. 127 349 V. Morrison. See Moi-rison v. &c. • V. Tonkin. See The " Friends." " General U. S. Grant," The, 6 Bened. 465 348, 478 «' General Wm. McCandlass," The, 6 Bened. 223 516 " George," The, 4 Not of Gas. 161 ; 9 Jur. 670 244, 404 5 Not. of Gas. 368 ; 6 Not. of Cas. 53 409 . andThe "Lidskjalf," Swab. Ad. 117 503 " George and Richard," The, L. R. 3 A. & E. 466 ; 24 L. T. N. S. 717 ; 20 W. R. 245 106, 114 " George Arkle," The, Lush. 222 ; on app. ib. 382 367, 423 "George Gordon." The, 9 P. D. 46 ; 53 L. J. Ad. 28; 50 L. T. N. S. 371 ; 32 W. R. 596 ; 5 Asp. M. L. C. 216 338 " George Law," The, 3 Bened. 396 516 "George Roper," The, 8 P. D. 119; 52 L. J. Ad. 69; 49 L. T. N. S. 185 ; 31 W. R. 953 ; 5 Asp. M. L. C. 134 3, 522 Georgian Bay Transportation Co. v. Fisher, 5 Tupper (Ontario) 383 170 "Georgiana," The, andThe "Anglican," 21 W. R. 280 119 " Germania," The, 37 L. J Ad. 59 ; 19 L. T. N. S. 20 ; 3 Mar. Law Cas. 0. S. 140; on app. ibid. 269; 21 L. T. N. S. 44 ....217, 312, 497 1 Maude & Pollock on Sh. 4th ed. 606, n. («) . .60, 343 " Germany," The, 2 Stuart (V. Ad. Canada) 158 41 " Gertrude," The, 12 P. D. 204 ; 13 P. D. 105 ; 56 L. J. Ad. 106 ; 57 L. T. N. S. 883 ; 59 ib. 251 ; 36 W. R. 191, 616 ; 6 Asp. M. L. C. 224, 315 112 " Gettysburg," The, 52 L. T. N. S. 60 ; 5 Asp. M. L. C. 347 81 Gilbert v. Corporation of Trinity House, 17 Q. B. D. 795 ; 56 L. J. Q. B. 85 ; 35 W. R. 30 97 " Gipsey King," The, 2 W. Rob. 537 ; 5 Not. of Cas. 282 . . 16, 194, 206, 244, 505 " Giraffe," The, 1 Pritch. Ad. Dig. 3rd ed. 234, 235 57 "Girolamo," The, 3 Hag. Ad. 169 89, 218, 220, 244, 245, 250, 402 " Gjessing," The, and The " Hansa." See The " Hansa." Glaholm v. Barker, 34 L. J. Ch. 533 ; 12 L. T. N. S. 317 ; 13 W. R. 671 ; on app. L. R. 1 Ch. 223 ; 35 L. J. Ch. 259 ; 13 L. T. N. S. 653 ; 14 W. R. 296 122, 175 " Glannibanta," The, 1 P. D. 283 ; 46 L. J. Ad. 75 ; 34 L. T. N. S. 935 ; 24 W. R. 1033 337, 497 " Glasgow," The, Sw. 145 319 " Gleaner," The, 38 L. T. N. S. 650 ; 3 Asp. Mar. Law Cas. 582 . . 121, 333 " Glengaber," The, L. R. 3 A. & E. 534 ; 41 L. J. Ad. 84 ; 27 L. T. N. S. 386 ; 1 Asp. Mar. Law Cas. 401 301, 302 " Glengarry," The, 2 P. D. 235 (note) ; 43 L. J. Ad. 37 ; 30 L. T. N. S. 341 ; 22 W. R. Dig. 225 522 " Globe," The, 6 Not. of Cas. 275 516 Godard v. Gray, L. R. 6 Q. B. 139 ; 40 L. J. Q. B. 02 ; 24 L. T. N. S. 89 ; 19 W. R. 348 224, 225 " Golden Pledge," The, and The " Cognac," Holt, 133 468 'lAl'.LK OF CASES. XXIX PAGE Goldsmith v. Slattery, G3 L. T. N. S. 273 584 Good f . Londou Steamship Owners' Mutual Protecting Association, L. R. 6 C. P. 563 ; 20 W. R. 33 175 "Good Intent," The, and The "Prince Christian," Fairless v. Thorsen, Marsd. Ad. Ca. 130 210 " Gordon," The, 1 1 Lower Canada Jurist, 109 247 Gordon, Rv parte, 14 Otto, 515 223 " Governor," The, Abbot Ad. 108 460 " Govino," The, 5 Quebec L. R. 57 64, 112 Grainger v. Martin, 2 B. & S. 456 ; 31 L. J. Q. B. 186 167 " Granite State," The, 3 Wall. 310 379, 501 " Great Conquest," The, and The "David Cawson," Holt, 235 .... 473 " Great Eastern," The, Holt, 1G9 310 2 Mar. Law Cas. O. S. 97 ; 3 Moo. P. C. C. N. S. 31; 11 L. T.N. S. 5; 13 W. R. Dig. 11 353, 483 Green v. New River Co., 4 T. R. 589 72, 475 Greenland v. ChapUn, 5 Ex. 243 ; 15 L. T. 185 ; 19 L. J. Ex. 293. . 15, 17, 29, 58 Greer v. Poole, 5 Q. B. D. 272 ; 49 L. J. Q. B. 463 ; 42 L. T. N. S. 687 ; 28 W. R. 582 303 Gregory v. Jones, 90 L. T. 42 261, 263 " Grey Eagle," The, 9 Wall. 505 64 1 Bissel, 476 ; 2 Bissel, 25 362 " Griefswald," The, Swab. Ad. 430 209, 224, 225, 313 Grill V. General Iron Screw CoUier Co. L. R. 1 C. P. GOO ; 35 L. J. C. P. 321 ; 14 L. T. N. S. 711 ; 14 W. R. 893 ; on app. L. R. 3 C. P. 476; 37 L. J. C. P. 205; 18 L. T. N. S. 485; 16 W. R. 797 70, 1 17, 283, 284, 286, 289, 299 " Grosvenor," The, Abbot, 108 429, 460 "Gnldfaxe," The, L. R. 2 A. & E. 325 ; 38 L. J. Ad. 12 ; 19 L. T. N. S. 748 ; 17 W. R. 578 222, 318 Gull V. Carswell, Marsd. Ad. Ca. 295 148 " Gustaf," The, Lush. 506 ; 31 L. J. Ad. 207 ; G L. T. N. S. GGO . . 82 see The " New Ed." "Guy Mannering," The, 7 P. D. 52; 51 L. J. Ad. 17; 46 L. T. N. S. 1 10 ; 30 W. R. 523 ; on app. 7 P. D. 132 ; 51 L. J. Ad. 57 ; 30 W. R. 835 ; 4 Asp. Mar. Law Cas. 485; ibid. 668. . . .215, 218, 231, 232, 256, 572 H. H. P. Baldwin, Brown, Ad. 300 491, 500 Hadgraft v. Hewith, L. R. 10 Q. B. 350; 44 L. J. M. C. 140; 32 L. T. N. S. 720; 23 W. R. 911 267,270 Haig V. Royal Mail Steam Packet Co., 52 L. J. Q. B. 395, 640 ; 48 L. T. N. S. 267 ; 49 ib. 802 ; 5 Asp. M. C. 47, 189 286 "Halcyon," The, Lush. 100 410 HaU V. Cardiff Pilotage Board, C. P. D. 18th Nov. 1879 265 " Hallet," The, Ad. Div. 9th Aug. 1887 497 XXX TABLE OF CASES. PAGE " Halley," The, L. R. 2 A. & E. 3 ; 17 L. T. N. S. 329 ; 37 L. J. Ad. 1 ; 16 W. R. 284 ; ou app. L. R. 2 P. C. 193 ; 37 L. J. Ad. 33; 18 L. T. N. S. 879; 16 W. R. 998 ....76, 77, 111, 211, 215, 218, 229, 240, 264, 279 Halliday v. Harris, L. R. 9 C. P. 668 84 Hamburg Americanishe Packetfahrt Actien Gesellschaft v. Bun'ell. See The " Prauconia." Hamilton v. Baker. Sec The " Sara." Hancock v. York, Newcastle and Berwick Railway Co., 10 C. B. 348 97 " Hand of Providence," The, Swab. Ad. 107 357, 463, 464 Handayside v. Wilson, 3 Car. & P. 528 340, 486 "Hankow," The, 4 P. D. 197 ; 48 L. J. Ad. 29; 40 L. T. N. S. 335 ; 28 W. R. 156 259, 261, 272, 332 "Hanna," The, L. R. 1 A. & E. 283; 36 L. J. Ad. 1 ; 15 L. T. N. S. 334 ; 15 W. R. 263 260, 272, 273 "Hannah Park," The, and The "Lena," 2 Mar. Law Cas. O. S. 345 ; Holt, 61, 213 ; 14 L. T. K S. 675 114, 391, 393 " Hannibal," The, and The " Queen," L. R. 2 A. & E. 53 . .61, 63, 313 " Hansa," The, 58 L. T. K S. 530 ; Asp. M. L. C. 268 116 ■ 5 Bened. 501 401, 403 Harmer v. Bell. See The " Bold Buccleugh." Harmond v. Pearson, 1 Camp. 515 97 Harris v. Anderson, 14 C. B. N. S. 499 30, 206 • V. Hamburg, &c. Gesellschaft, Owners of The "Erancorda," 2 C. P. D. 173 ; 46 L. J. C. P. 363 ; 25 W. R. Dig. 209 . . . .211, 304 V. Mobbs, 3 Ex. D. 268 ; 39 L. T. N. S. 164 36 • V. Quine, L. R. 4 Q. B. 653 : 10 B. & S. 644 ; 38 L. J. Q. B. 331 ; 20 L. T. N. S. 947 ; 17 W. R. 967 224 . V. Willis, 15 C. B. 710 ; 24 L. J. Q. B. 93 309 " Harton," The, Ad. Div. 3 Aug. 1886 405 — • 9 P. D. 44 ; 53 L. J. Ad. 25 ; 32 W. R. 597 ; 5 Asp. Mar. Law Cas. 213; 50 L. T. N. S. 370 58, 446 " Harvest," The, 11 P. D. 14, 90 ; 55 L. J. Ad. 35 ; 54 L. T. N. S. 274 ; 55 ib. 202 ; 34 W. R. 491 ; 5 Asp. M. L. C. 546 ; Gib. 5.... 590 " Haswell," The, Br. & L. 247 307 Havelock v. Rockwood, 8 T. R. 268 224 Hawkins v. Morgan, 49 L. J. Q. B. 618 322 Hay V. Le Neve, 2 Shaw's Scotch Appeal Cas. 395 18, 35, 126, 135, 153—157 Hayn v. Culliford, 4 C. P. D. 182 ; 48 L. J. C. P. 372 ; 40 L. T. N. S. 536 ; 27 W. R. 541 ; 4 Asp. M. L. C. 48, 128 143, 281 Heard V. Holman, IS C. B. N. S. 1 118 " Hector," The, 8 P. D. 218 ; 52 L. J. Ad. 47 (costs) ; ibid. 51 (limi- tation); 48 L. T. N. S. 890 ; 31 W. R. 881 ..24, Go, 94, 96, 142, 229, 236, 241, 314, 328—336 Hedges v. London & St. Katherine's Dock Co., 16 Q. B. D. 597 ; 55 L. J. M. C. 4G ; 5 Asp. M. L. C. 539 ; 54 L. T. N. S. 427 ; 34 W. R. 503 326 " Hedwig," The, 1 Sp. 19 310 TAlil.K OF CASES. XXXI PAGE "Heinrich Bjorn," The, 10 P. D. 44 ; 11 Ap. Cas. 270; o4 L. J. Ad. 33 ; 5o ib. 80 ; 52 L. T. N. S. 560 ; 65 ib. 66 ; 33 W. 11. 719 ; 5 A.sp. M. L. C. 391 ; G ib. \ 79, 86, 88 "Heleu J. Ilolway," The, and The "Enoch Moore," 6 Boned. 536 . 410 "Helenslca," The, 7 P. D. 57; 51 L. J. Ad. 10; 47 L. T. N. S. 446 304, 314 " Helvetia," The, 3 Asp. Mar. Law Cas. 43, n. ; Mitch. Mar. Reg. (1868), p. 150 ; ib. p. 1554 367, 430 Henderson v. Henderson, 3 Ha. 117 224 "Heukes,"ThcJ.H., 12 P. D. 106; 56L.J. Ad. 69; 6 Asp. M. L. C. 121 ; 56 L. T. N. S. 581 ; 35 W. R. 412 332 " Henry Coxon," The, 3 P. D. 156 ; 47 L. J. Ad. 83 ; 38 L. T. N. S. 819 309, 310 " Henry Morton," The, 2 Asp. Mar. Law Cas. 466 ; 31 L. T. N. S. 859 459, 513, 524 "Herald," The, 63 L. T. N. S. 324 338 " Hermod," The, 62 L. T. N. S. 670 42, 45, 368 Hibhs V. Ross, L. R. 1 Q. B. 534 ; 15 L. T. N. S. 67 68, 69 "Hibcmia," The, 2 Asp. Mar. Law Cas. 454 ; 31 L. T. N. S. 805 . . 41, 43, 330, 498 4 Jut. N. S. 1244 9, 11, 26, 249, 250 "Hibernian," The, Redpath v. AUen, L. R. 4 P. C. 511 ; 42 L. J. Ad. 8 ; 27 L. T. N. S. 725 ; 21 W. R. 276 228, 231, 233 Highfield v. Peake, M. & M. 109 310 " Highgate," The, 62 L. T. N. S. 841 7, 433 Hill r. Audus, 1 K. & J. 203 ; 24 L. J. Ch. 229 ; 24 L. T. 251 ; 3 W. R. 230 321 " Hjemmett," The, 5 P. D. 227 ; 49 L. J. Ad. 66 ; 42 L. T. X. S. 514 199, 302 Hobbs V. London Sz South Western Railway Co., L. R. 10 Q. B. 11 1 ; 44 L. J. Q. B. 49 ; 32 L. T. N. S. 252 ; 23 W. R. 520 123 "Hochung," The, and The "Lapwing-," 7 Ap. Ca. 512; 51 L. J. P. C. 92 ; 47 L. T. N. S. 485 ; 31 W. R. 303 ; 5 Asp. M. L. C. 39 41, 42, 64, 65, 144, 307 Hodgkinson r. Feraic, 2 C. B. N. S. 415 ; 26 L. J. C. P. 217 72 Hoffman v. Union Ferry of Brooklyn, 68 New York (Sicker' s) Rep. 385 ; 7 Amer. Rep. 435 64, 119, 408 Hole V. Sittingbourne Railway Co., H. & N. 488 ; 30 L. J. Ex. 81 ; 3 L. T. ]S . S. 750 ; 9 W. R. 274 73 " Hollandia," The, and The "John Ormston " (not reported) 367 Holman v. Irvine Harbour Trustees, 4 Sess. Ca. 4th Ser. 406 ; Hen- derson's Dig. 670 102, 228, 253 " Hope," The, 1 W. Rob. 154 242, 317, 339 . 2 W. Rob. 8 514 and The " Chili," 2 Mar. Law Cas., O. S. Dig. 540 115 "Hopewell," The, and The "Prosperous," Renncn v. Himible, Maisd. Ad. Ca. 280 139, 146 "Horace," The, 9 P. D. 87 ; 53 L. J. Ad. 54 ; 50 L. T. N. S. 595 ; 32 W. R. 755 ; 5 Asp. M. L. C. 218 338 Hossack V. Gray, 6 B. & S. 598 ; 34 L. J. Q. B. 256 ; 12 L. T. N. S. 701 ; 13 W. R. 859 '. 270. 278 XXXU TAin.E OF CASES. PAGE Honstoun v. Marquis of Sligo, 29 Ch. D. 448 ; 52 L. T. N. S. 96 . . 224 " Hubbuck," The, Ad. Div. 28th June, 1887 394 "Hudson," The, 5 Bened. 206 408, 508 Huggett V. Montgomery, 2 N. R. 446 98 Hughes V. Percival, 8 Ap. Ca. 443; 52 L. J. Q. B. 719; 49 L. T. N. S. 189 ; 31 W. R. 725 73 V. Sutherland, 7 Q. B. D. ICO; 50 L. J. Q. B. 567; 29 W. R. 867 ; 45 L. T. N. S. 287 171 "Humber," The, 9 P. D. 12 ; 53 L. J. Ad. 7 ; 49 L. T. N. S. 604 ; 32 W. R. 664 ; 5 Asp. M. C. 181 327 Hunter v. McGowun, 1 Bligh, 573 166 "Hunter," The, and The "Amity's Friendship," Marsd. Ad. Ca. 322 157 " Huntress," The, 2 Sprague, 61 6 Hutton c. Stoker. See The " Friends Goodwill " and The ' ' Peggy." Hyman v. Helm, 24 Ch. D. 531 ; 49 L. T. N. S. 376 ; 32 W. R. 258 223 Ida," The, Lush. 6 ; 1 L. T. N. S. 417 30, 70, 224 and The " Mary Ida " 363 and The " Wasa," 2 Mar. Law Cas. 0. S. 414 ; 15 L. T. N. S. 103 486, 510 "Illinois," The, 13 Otto, 298 473 " Ilos," The, Swab. Ad. 100 106 " Imbro," The, 14 P. D. 73 ; 58 L. J. Ad. 49 ; 60 L. T. N. S. 936 ; 37 W. R. 559 ; 6 Asp. M. L. C. 392 43, 393, 394, 426 " Immacolata Concezione," The, 8 P. D. 34 ; 47 L. T. N. S. 388 ; 31 W. R. 644 ; 4 Asp. M. L. C. 593 316 " Immaganda Sara Clasina," The, 7 Not. of Cas. 582; on app. 8 Moo. P. C. C. 75 339, 472 Ince V. East Boston Ferry Co., 106 Mass. Rep. 149 500 " Independence," The. See The "Arthur Gordon." "India," The, Ad. Div. 7th Dec., 1886 198 India, Secretary of State for v. Hewitt. See Secretary of State for India, &c. " Indian," The, and The " Jessie," 2 Mar. Law Cas. O. S. 217 ; 12 L. T. N. S. 586 503 " Indian Chief," The, 14 P. D. 24 ; 58 L. J. Ad. 25 ; 60 L. T. N. S. 240 ; 6 Asp. M. L. C. 362 367, 378, 515, 579 " Indus," The, 12 P. D. 46 ; 56 L. J. Ad. 88 ; 35 W. R. 490 ; 56 L. T. N. S. 376; 6 Asp. M. L.C. 105 H, 31, 35, i39, 248 " Industrie," The, L. R. 3 A. & E. 303 ; 40 L. J. Ad. 26 ; 24 L. T. N. S. 446; 19W. R. 728 27, 37, 85, 86, 361, 374, 379 " Inflexible," H.M.S., Swab. Ad. 200 ; 28 L. T. N. S. 374 ; 5 W. R. 517 Ill, 119, 120 " Inflexible," The, Sw. 32 (navigation) 349, 421 TABLE OF CASES, XXXIU Inman v. Reck. See The " City of Antwerp." page "Innisfail," The, and The "Secret," 3 Asp. Mar. Law Cas. 337 ; 35 L. T. N. S. 819 332, 603 «' Insulano," The, and The "City of Mecca " 345, 425 " Intrepide," The, 2 Mar. Law Cas. O. S. 292 457 "Invincible," The, 2 Gall. 29 209 " lona," The, L. R. 1 P. C. 42G ; 16 L. T. N. S. 158 238, 246 " Iron Duke," The, 4 Not. of Cas. 94 ; ii. 585 360 Holt, 227 524 "Ironmaster," The (pleading), 6 Jur. N. S. 782 308 Swab. Ad. 441 HI, 112 "Irrawaddy," The, Ad. Div. 15th June, 1887 402 " Irwin," The, 90 L. T. 172 327 "Isca," The, 12 P. D. 34 ; 56 L. J. Ad. 47 ; r^.j L. T. N. S. 779 ; 35 W. R. 382 ; 6 Asp. M. L. C. 63 198, 202, 204, 327 "Isle of Cyprus," The, 15 P. D. 134 ; 63 L. T. N. S. 352 ; 38 W. R. 719 311 " Itinerant," The, 2 W. Rob. 236 329, 404 " Ivanhoe," The, and The " Martha M. Heath," 7 Bened. 213 . . 185, 466 J. " J. H. Henkes," The. See " Henkes," The J. H. Jackson v. Kruger, 54 L. J. Q. B. 440 ; 52 L. T. N. S. 962 107 "Jacob," The, 1 Pritch. Ad. Dig. 3rd ed. 286 : 5 Jr. Jur. N. S. 379 252 " Jacob Landstrom," The, 4 P. D. 191 : 40 L. T. N. S. 38; 27 W. R. Dig. 205 314 "James," The, Swab. Ad. 55 ; on app. ib. 60 ; 4 W. R. 353 . . 366, 375, 415, 496 James v. London & South Western Rail. Co., L. R. 7 Ex. 187 ; 41 L. J. Ex. 82 ; 26 L. T. N. S. 187 ; 20 W. R. 538 ; on app. L. R. 7 Ex. 287; 41 L. J. Ex. 186; 27 L. T.N. S. 382 ; 21 W. R. 25,. 320, 321 "James Gray," The, and The -'John Eraser" ; Gushing r. The Owners of The '• John Eraser," 21 How. 184 137, 197, 203 " James Watt," The, 2 W. Rob. 270 1, 6, 353, 429, 434 "Jane Bacon," The, 27 W. R. 35 200, 201, 361, 486, 498 " Janet Wilson," The, Swab. 261 88 " Java," The, 14 Wall. 189 12,513 "Jennie S. Barker." The, 3 Asp. Mar. Law Cas. 42 ; 44 L. J. Ad. 20 ; 33 L. T. N. S. 318 359, 366, 367, 427, 430 "Jeremiah," The, and The "ProA-idence," Mason c. Johnson, Marsd. Ad. Ca. 282 147 " Jesmond," The, and The " Earl of Elgin," L. R. 4 P. C. 1 ; 25 L. T. N. S. 514 ; 1 Asp. M. L. C. 150. .4, 351, 352, 354, 423, 424, 438, 448, 495 " Johann Eriedrich," The, 1 W. Rob. 35 209, 212 " Johann Svcrdi-up," The, 11 P. D. 49 ; 12 P. D. 43 : 55 L. J. Ad. 28 ; 56 ih. 63 ; 54 L. T. N. S. SCO ; 56 ib. 256 ; 35 W. R. 63, 300; 6 Asp. M. L. C. 16, 73 274 M. C XXXIV TA15LE OF CASES. PAGE "John," The 123 and The " Maiy Rose," Fantley c. King 146 "John and Mary," The, Swab. Ad. 471 85, 313, 317 " John Bellamy," The, L. R. 3 A. & E. 129 ; 22 L. T. N. S. 244 ; 3 Mar. Law Cas. 0. S. 360 296 "JohnBoyne," The, 3 Asp. M. L. C. 341; 36 L.T.N. S. 29 306 "John Brotherick," The, 8 Jur. 276 356 " John Buddie," The, 5 Not. of Cas. 387 9, 483 " John Dunn," The, 1 W. Rob. 159 318 "John Fenwick," The, L. R. 3 A. & E. 500 ; 41 L. J. Ad. 38 ; 26 L. T.N. S. 322 361, 391, 509 " John Harley," The, and The " •William Tell, " 2 Mar. Law Cas. O. S. 290; 13L. T. N. S. 413 36, 506, 516 " John L. Hasbronck," The, 3 Otto, 405 470 "John M'Intyre," The, 6 P. D. 200 ; 50 L. J. Ad. 76 {nom. The "John Ormston ") 171 (Art. 18), 9 P. D. 135 ; 53 L. J. Ad. 114 ; L. T. N. S. 185 ; 33 W. R. 190 ; 5 Asp. M. L. C. 278 446 " John Ormston," The. See The " John M'Intyre." " John Taylor," The, 6 Bened. 227 474, 479 " Johnson," The, 9 Wall. 146 352, 356 Johnson v. Black. See The " Two Ellens." Johnson v. Lindsay, 23 Q. B. D. 508 ; 58 L. J. Q. B. 581 ; 38 W. R. 119 190 JoUiffe V. Wallasey Local Board, L. R. 9 C. P. 62 ; 43 L. J. C. P. 41 ; 29 L. T. N. S. 582 97 Jones V. Bennett, 63 L. T. 705 265 Jones V. Boyce, 1 Stark. 493 4 Jones V. Corporation of Liverpool, 14 Q. B. D. 890 ; 54 L. J. Q. B. 345 ; 33 W. R. 551 190 "Joseph W. Dyer," The v. The National Steamship Co., 14 Blatchf. 483 ; 4 Asp. Mar. Law Cas. 26 122, 161, 183 Joyce V. Capel, 8 Car. & Pay. 370 68 " Julia," The, Lush. 224 ; 14 Moo. P. C. C. [nom. Bland v. Ross) 210; 10 W. R. Dig. 10 24, 195, 197, 200, 201, 205, 245—250 "Julia Fisher," The, 2 P. D. 115 ; 36 L. T. N. S. 257 ; 25 W. R. 756 ; 3 Asp. M. L. C. 380 315, 316, 337 " Julia M. HaUock," The, 1 Sprague, 539 509 " Juliana," The, Sw. 20 39, 40 "Juliet Erskine," The, 6 Not. of Cas. 633 8, 399, 405 "Juniata," The, 3 Otto, 337 104, 197, 286 " Juno," The, 1 P. D. 135 ; 45 L. J. Ad. 105 ; 34 L. T. N. S. 741 ; 24 W. R. 902 270, 331 K. "Kalamazoo," The, 15 Jur. 885 87, 88, 317, 318 " Karla," The, Br. & L. 367 338 " Karo," The, 13 P. D. 24 ; 57 L. J. Ad. 8 ; 58 L. T. N. S. 188 ; 6 Asp. M. L. C. 245. . , 143, 332 TA15LK OV (;ASES, XXXV PAGE Kearney v. Loudon, Bri<,''hton & South Coast Railway Co., L. R. 5 Q. B. 411 ; 39 L. J. Q. B. 200; 22 L. T. N. S. 886 ; on app. L. R. G Q. B. 759 ; 40 L. J. Q. B. 285 ; 24 L. T. N. S. 913 ; 20 W. R. 24 34 Kemp V. Ilalliday, L. R. 1 Q. B. 520; 12 Jur. N. S. 582 ; 35 L. J. Q. B. 156 ; 14 L. T. N. S. 762 ; 14 W. R. 697 303 "Kepler," Tlie, 2 P. D. 40 10, 09, 500, 507 " Kezia," The, and The " Eliza," Holt, 67 353 and The "Victoria," Holt, 70 424 " Khedive," The. See The " Voorwaarts " and The " Khedive." Kidson v. McArthur, 5 Sess. Cas. 4th Series, 936 26, 172, 379 " Killaruey," The (Hull pilotage). Lush. 427 ; 6 L. T. N. S. 908. . . .259, 261, 267, 268, 272 • • (pilotage certificate). Lush. 202; 30 L. J. Ad. 41 ; 5 L. T. N. S. 21 228, 263 Kingscote, Ex parte. See Tillett, Re. " Kingston by Sea," The, 3 W. Rob. 152 185, 510 " Kirby Hall," The, 8 P. D. 71 ; 52 L. J. Ad. 31 ; 48 L. T. N. S. 797 ; 31 W. R. 658 ; 5 Asp. M. L. C. 90 312, 402, 445, 448, 452 Kitchener v. Cocklin. See The " Blessing," and The " "William and John." " Kjobenhavn," The, 2 Asp. Mar. Law Cas. 213; 30 L. T. N. S. 136 25, 363, 501, 507 Knight V. Faith, 15 Q. B. 649 ; 19 L. J. Q. B. 509 293 " Kong Magnus," The, 63 L. T. N. S. 715 80 L. " La Plata," The, Swab. Ad. 220 ; on app. ibid. 298. .186, 356, 515, 523 Lack V. Seward, 4 Car. & Pay. 106 497 " Laconia," The, 7 L. T. N. S. 164 ; on app. 2 Moo. P. C. C. N. S. 161 ; 33 L. J Ad. 13 ; 9 L. T. N. S. 37 ; 12 W. R. 90 .... 2, 130, 154 " Lady Ann," The, 7 N. of C. 364 307, 308 " Lady Anne," The, 15 Jur. 18 417, 486, 487, 496 " Lady Campbell," The, 2 Hag. 5 132 " Lady Dowushire," The, 4 P. D. 26 ; 48 L. J. Ad. 41 ; 39 L. T. N. S. 236 ; 27 W. R. 648 58, 299 " Lady Elizabeth," The, and The '• Premier " 390 " Lady Pike," The, 21 "Wall. 1 198 " Lady "Wodehouso," The, 2 Times L. R. 252 585 " Lake St. Clau-," The, and The " Underwriter," "Wilson v. Canada Shipping Co., 2 Ap. Ca. 389 ; 3 Asp. Mar. Law Cas. 361 ; 36 L. T. N. S. 155 ; (Court below) 1 Quebec L. R. 323 6, 328, 412. 417, 475, 510—512, 519 " Lamb," The, and The " Adventure," Harper c. Gravenor, Marsd. Ad. Ca. 251 145 " Lanarkshire," The, 1 Sp. 189 223 " Lancashire," The, L. R. 4 A. & E. 198 ; 29 L. T. N. S. 927. .402, 407, 508, 515 Lancaster Canal Co. v. Pamaby. See Pamaby v. &c. (■2 XXXVl TABLE OF CASES. " Lapwing," The. See The " Hochung." page " Lauretta," The, 4 P. D. 25 ; 4 Asp. M. L. C. 118 ; 48 L. J. Ad. 55 ; 40 L. T. N. S. 444 ; 27 W. R. 902 336 Law V. Hollingsworth, 7 T. E. 160 256 Lawrence v. Jenkins, L. R. 8 Q. B. 274 ; 42 L. J. Q. B. 147 ; 28 L. T. N. S. 406 ; 21 W. R. 577 17 Lawson v. Dumlin, 9 C. B. 54 66 " Leda," The, Br. & Lush. 19 ; 32 L. J. Ad. 58 ; 7 L. T. X. S. 864. . 331 Leddy v. Gibson, 11 Macpherson's Session Cas. 304 109 " Legatus," The, Swab. 168 ; 5 W. R. 154 119 and The "Emily," Holt, 217 486, 489 "Leith," The, 7 Not. of Cas. 137 463 "Lemington," The, 2 Asp. Mar. Law Cas. 475; 32 L. T. N. S. 69 05, 76, 90, 91, 194 " Leo," The, Lush. 444 ; 31 L. J. Ad. 78 ; 6 L. T. N. S. 58 338 "Leon," The, 6 P. D. 148 ; 4 Asp. M. L. C. 404 ; 50 L. J. Ad. 59; 44 L. T. X. S. 613 ; 29 W. R. 916 ; on app. 5 Asp. M. L. C. 25. . 95, 161, 212, 213 "Leonidas," The, Stuart's Vice-Ad. Rep. Lower Canada (Lond. 1858), 226 511 " Leverington," The, 11 P. D. 117 ; 55 L. J. Ad. 78 ; 55 L. T. X. S. 386 ; 6 Asp. M. L. C. 7 343, 427, 428, 404, 465, 474 Leycester v. Logan, 4 K. & J. 725 ; 29 L. T. 74 , 167, 180 "Libra," The, 6 P. D. 139 ; 4 Asp. M. L. C. 439 ; 45 L. T. X. S. 161 352, 585, 587 Lidgett i: Secretan, L. R. 5 C. P. 100 ; 39 L. J. C. P. 196 ; 22 L. T. X. S. 272 ; 18 W. R. 692 293 " Ligo," The, 2 Hag. Ad. 350 30 Lillev i: Doubleday, 7 Q. B. D. 510 ; 44 L. T. X. S. 814 ; 51 L. J. Q."^B. 310 123 "Lima," The, 4 Jur. X. S. 147 136 " Lunerick," The, 1 P. D. 292 ; 34 L. T. X. S. 708 ; 3 Asp. M. L. C. 206 324 Limpus v. London General Omnibus Co., 1 H. & C. 526 ; 32 L. J. Ex. 34 ; 9 Jui: X. S. 333 ; 7 L. T. X. S. G41 ; 11 W. R. 149 ... . 70 "Linda," The, Sw. 306; 30 L. T. 234 ; 4 Jur. X. S. 14G..113, 115, 119 "Linda Elor," The, Swab. Ad. 309; 30 L. T. 234 ; 6 W. R. 197; 4 Jur. X. S. 172 82 " Lindsay," The, t. Rep. Ad. 1 Eq. 259 115 " Lion," The, L. R. 2 A. & E. 102 ; 37 L. J. Ad. 39 ; 18 L. T. X. S. 803 ; 17 W. R. 577 ; on app. L. R. 2 P. C. 525 ; 38 L. J. Ad. 51 ; 21 L. T. X. S. 41 ; 17 W. R. 993 230, 260, 273 Little r. Bums, The " Owl" and The "Ariadne," 9 Sess. Ca. 4th Ser. 118 59, 60, 343, 401, 423, 424, 437, 525 "Little Betty," The, and The "Jonas," Beckham c. Chapman, Mar.sd. Ad. Ca. 270 146 " Little Lizzie," The, L. R. 3 A. & E. 56 ; 23 L. T. X. S. 84 310 Liver Alkali Co. v. Johnson, L. R. 9 Ex. 338 281 " Livia," The, 25 L. T. X. S. 887 ; 1 Asp. Mar. Law Cas. 201 . .24, 242 " Liviugstoiie," The, Swab. Ad. 519 377 TABLE OF CASES. XXXVll PAGE '< Ljudica," The, 23 L. T. N. S. 474 ; 19 W. R. Dig. 18 310 " Lloyds," The. See The " Sea Queen." Lloyd V. General Iron Screw Collier Co. 3 II. & C. 284 ; 33 L. J. Ex.269; 10 Jur. N. S. 661 ; 10 L. T. N. S. 586 ; 12 W. R. 882. .283, 284 V. Guibcrt. L. R. 1 Q. B. 115 ; 33 L. J. Q. B. 241 ; 10 L. T. N. S. 570; r2W. R. 953 161,183 " Lochlibo," The, 3 W. Rob. 310 ; on app. nom. Pollock v. M'Alpin, 7 Moo. P. C. C. 427 8, 244, 250, 404 " Locksley Hall," The, Ad. Div. 28th March, 1887 247, 271 Lockyer v. Offley, 1 T. R. 252 293 Lohnes v. The " Barcelona." See The " Barcelona." Lohre v. Aitchison, 3 Q. B. D. 558 ; 46 L. J. Q. B. D. 715 ; 36 L. T. N. S. 794 ; 26 W. R. 42 ; on app. 28 W. R. 1 ; 4 App. Cas. 755. . Ill " London," The. Morgan v. Sim. See Tlie " City of Loudon." "London." The, 6 Not. of Cas. 29 31, 414, 415 " London," The, Br. & L. 82 ; 1 Mar. Law Cas. 0. S. 398 ; 9 L. T. N. S. 348 10, 329 London Lord Melville," The 125, 153, 156, 157 " Lord Saumarez," The, 6 Not. of Cas. 600 29, 399 '• Lord Scaton," The, 3 W. Rob. 391 ; 4 Not. of Cas. 164 309, 310 " Lord Strathnaim," The 315 Lords Bailiff Jurats of Romney Marsh v. Corporation of the Ti-initv House, L. R. 5 Ex. 204 ; 39 L. J. Ex. 163 ; 18 W. R. 869 ; on app. L. R. 7 Ex. 247 ; 41 L. J. Ex. 106 ; 22 L. T. N. S. 446 ; 20 AV. R. 952 25 " Lome," The, 2 Stuart, V. Ad. (Canada) 177 362 " Lotty," The, Olcott, Ad. 329 234 Loud V. Tugboats, J. G. Stevens & R. S. Carter, 89 L. T. 101 .... 82 " Louisa," The, and The " City of Paris," Holt, 15 370 '• Louisa," The, 6 Not. of Cas. 531 88 XXXVUl TA15LE OF CASES. PAGE '• Louisiana," The, 3 Wall. 1G4 506 "Love Bird," The, 6 P. D. 80 ; 4 Asp. M. L. C. 427; 44 L. T. N. S. 650 63, 217, 328, 357, 363, 397, 445, 448 " Loyal," The, and The " Challenger," 14 Quebec L. R. 135 203 Lucey v. Ingram, 6 M. & W. 302 ; 9 L. J. Ex. 196 230, 263 " Lucia Jantina," The, and The " Mexican," Holt, 130 62, 490 "Lucile," The, 15 WaU. 676 ....4, 432 Luxford V. Large, 5 Car. & Pay. 421 27, 520 " Lydia," The, 11 Blatchf. 415 408 Lyon V. Mells, 5 East, 428 281 "Lyra," The, and The "Venus." See The " Venus." M. "M.M.Caleb," The, 10 Blatchf. 467 11, 24 "M. Moxham," The, 1 P. D. 43 ; 45 L. J. Ad. 36 ; 33 L. T. N. S. 463 : 24 W. R. 283 ; on app. 1 P. D. 107 ; 46 L. J. Ad. 17 ; 34 L. T. N. S. 559 ; 24 W. R. 650 77, 89, 181, 211, 214, 215, 299 "Mac," The, 7 P. D. 38; 46 L. T. N. S. 206; 51 L. J. Ad. 20; 30 W. R. 552 ; on app. 7 P. D. 126 ; 51 L. J. Ad. 81 ; 46 L. T. N. S. 907 326 "Machin," The, Ad. Div. Nov. 1884 95 Maclaren v. Compagnie Frant^-aise de Navigation a Vapeur, 9 App. Ca. 640. See The " Thames " and The " Lutetia." " Macleod," The, 5 P. D. 254 132 " Macleod," The, 2 Stuart V. Ad. (Canada) 140 9 MacMahon v. Field, 7 Q. B. D. 591 ; 50 L. J. Q. B. 311, 522; 44 L. T. N. S. 175 ; 45 L. T. N. S. 381 123 MacManus v. Cricket, 1 East, 106 67, 70 "Ma3ander,"The, andTho "Florence Nightingale," 1 Moo. P. C. C. N. S. 63 ; Br. & Lush. 29 ; 9 Jur. N. S. 475; 11 W. R. 542. .463, 464 " Magdeburgh," The, and The " Plenry Willard," Ad. Div. Jan. 16, 1885 63, 217 "Maggie Armstrong," The, and The "Blue Bell," 2 Mar. Law Gas. 0. S. 318 ; 14 L. T. N. S. 340 503, 505 " Maggie J. Smith," The, 16 Davis, TJ. S. 349 490 "Magna Charta," The, 1 Asp. Mar. Law Cas. 153 ; 25 L. T. N. S. 512 313, 401 " Magnet," The, and The " Duke of Sutherland," L. R. 4 A. & E. 417 ; 44 L. J. Ad. 1 ; 32 L. T. N. S. 129 . . 63, 217, 312, 345, 368, 370 " Magneta," The, 15 P. D. 101 ; 59 L. J. Ad. 65 ; 63 L. T. N. S. 114 362, 567 " Mahler," The, 21 Wall. 231 518 " Maid of Auckland," The, 6 Not. of Cas. 240 2, 130, 154 "Maid of Kent," The, 6 P. D. 178 ; 4 Asp. M. L. C. 476 ; 50 L. J. Ad. 71; 29 W. R. 897; 45 L. T. N. S. 718 113, 324 " Maid of the Mist," The, 21 W. R. 310 86 TAJihE OF CASES. XXXIX PAGE " Main," The, 11, T. D. 132 ; 55 L. J. Ad. 70 ; 55 L. T. N. S. 15 ; 34 W. R. 078 ; 6 Asp. M. L. C. 37 43, 391—393, 426, 458 Majoribauks v. Boyd, " Times," 11th Dec, 1823 27 " Malek Adel," The, 2 How. 210 77, 93 " Mali Ivo," The, L. R. 2 A. & E. 356 ; 38 L. J. Ad. 34 ; 30 L. T. N. S. 681; 17 W. R. Dig. 23 210, 223 " Malta." The, 2 Hag-. 158 (note) 309 " Malviua," The, Lush. 493 ; 31 L. J. Ad. 112 ; 6 L. T. N. S. 369 ; on app. Br. i: Lush. 57 ; nom. Malcomson f. Mee.son, 1 Moo. P. C. C. N. S. 357 ; 1 1 W. R. 576 82, 325, 327, 463 " Manchester," The, 1 "W. Rob. 63 310 "Mangerton," The, Swab. Ad. 120 ; 27 L. T. 207 309, 349 " Manitoba," The, 15 Davis, U. S. 97 139, 444, 451 Mauzoui V. Douglas, Q. B. D. 145 ; 50 L. J. Q. B. 289 ; 29 W. R. 425 34 " Marathon," The, 48 L. J. Ad. 17 ; 40 L. T. N. S. 103 106, 239 " Marcia Tribou," The, 2 Sprague, 17 35, 497, 501 " Margaret," The, and The '• Clan Sinclair " (Thames Rules), 8 P. D. 126 ; 31 W. R. 843 ; 52 L. J. Ad. 65 ; 49 L. T. N. S. 332 ; on app. 9 P. D. 47; 53 L. J. Ad. 17 ; 50L. T. N. S. 447 ; 5 Asp. M. L. C. 204 ; 32 W. R. 564 ; Dom. Proc. nom. Cayzerp. Carron Co., 9 Ap. Ca. 873 ; 5 Asp. M. L. C. 204 ; 54 L. J. Ad. 18 ; 52 L. T. N. S. 361 ; 33 W. R. 281 . . 17, 19, 22, 30, 58, 134—136, 346, 498, 513, 523, 586 "Margaret," The, (damage), 6 P. D. 76 ; 4 Asp. M. L. C. 276 ; 50 L. J. Ad. 33 ; 42 L. T. N. S. 663 ; on app. 6 P. D. 76 ; 4 Asp. M. L. C. 375 ; 50 L. J. Ad. 67 ; 44 L. T. N. S. 291 ; 29 W. R. 533 15. 10, 117, 136 " Margaret," The, 4 Otto, 494 197, 198 . and The --Tuscar," Holt, 44; 15 L. T. N. S. 86 376, 512 "Maria,"The, L. R. 1 A. &E. 358; 16 L. T. N. S. 717. .237, 261, 268 , 1 .W. Rob. 95 .... 89, 218, 227, 230, 245, 250, 259, 274 "Maria des Dores," The, Br. & L. 27 ; 32 L. J. Ad. 163 ; 7 L. T. N. S. 864; 11 W. R. 500 310 "Maria Martin," The 12 WaU. 31 201 " Mark Eveline," The, 16 Wall. 348 419 " Mark-land," The, L. R. 3 A. & E. 340 82 "Mannion," The, Ad. Div. 9th Dec, 1887 474 " Marmion," The, 1 Asp. M. L. C. 412 ; 27 L. T. N. S. 255 . .412, 475 . London General Steam Nav. Co. v. London and Edinburgh Shipping Co., Mitch. Mar. Reg., 1st June, 1877 260 " Mai-pesia," The, L. R. 4 P. C. 212 ; 26 L. T. N. S. 333. .4, 8, 9, 12, 30, 154, 307, 329, 336, 496 Marshall v. Moran. See The " Ocean Wave." Marsmgill c. Taylor. See The " Adventure " and The " Supply." Martin v. Crompe, Ld. 1 Raym. 340 107 ('. Green, 1 Kcb. 730 -09 ■ V. Temperlcy, 4 Q. B. 298 ; 12 L. J. Q. B. 129 ; 7 Jm-. 150. . 233 xl TABLE OF CASES. PAGE " Mary," The, and The "Rowlands," Mur ton, Wreck Enquiries, 196 497 "Mary," The, and The "Rebecca," Noden v. Ashton, Marsd. Ad. Ca. 290 131, 147 " Mary," The (costs), 7 P. D. 201 ; 48 L. T. N. S. 28 ; 31 W. R. 248 ; 5 Asp. M. L. C. 33 332, 333 " Mai-v," The, 5 P. D. 14 ; 48 L. J. Ad. G6 ; 41 L. T. N. S. 351 ; 28 W. R. 95 ; 4 Asp. M. L. C. 183 9G, 186, 189, 194, 229, 242 " Mary, or Alexandra," The, L. R. 1 A. & E. 335 ; 38 L. J. Ad. 29 ; 18 L. T. N. S. 891 ; 17 W. R. 551; 3 M. L. CO. S. 136 337 " Mary Ann," The, L. R. 1 A. & E. 8 ; 35 L. J. Ad. 6 ; 13 L. T. N. S. 384 ; 14 W. R. 136 ; 12 Jur. N. S. 31 86, 88, 162, 183 " Mary Hounsell," The, 4 P. D. 204 ; 48 L. J. Ad. 54 ; 40 L. T. N. S. 368 ; 38 W. R. 140 6, 57, 188, 201, 362, 369, 330 " Mary Lohden," 58 L. T. N. S. 461 ; 6 Asp. M. L. C. 262. . . .463, 574 " Mary of Poole," The, and The '' Mary of Weymouth," Trew r. Peirce, Marsd. Ad. Ca. 264 135, 136, 146 Mason c. Johnson. See The " Jeremiah," and The " Providence." Mason v. Sainsbury, 3 Dougl. 61 295 "Massachusetts," The, 1 W. Rob. 371 117,242,249, 505 " Masten," The, Brown, Ad. 436 504 " Masters," The, and The " Raynor," Brown, Ad. 342 497 Matthews «;. London Street Tramways Co., 58 L. J. Q. B. 12; 60 L. T. N. S. 47 107 " Matthew Cay," The, 5 P. D. 49 ; 41 L. T. N. S. 759 ; 28 W. R. 262 ; 4 Asp. Mar. Law Gas. 224 ; 49 L. J. Ad. 47 332 " Maverick," The, 1 Sprague 23 514 "Maybey," The, and The "Cooper," 7 Blatchf. 378; 14 WaU. 204.. 8, 196, 501 Mayhew v. Boyce, 1 Stark 423 486, 452, 516 Mayor, &c. of Colchester v. Brooke, 7 Q. B. 339 36, 72 " McCallum," The, and The " Odette," 7 Duval (Canada) 36 137 McCord V. The Steamboat " Tiber," 6 Bissel, 409 86 McHenry v. Lewis, 22 Ch. D. 397 ; 52 L. J. Ch. 325 ; 47 L. T. N. S. 549 ; 31 W. R. 305 223 Mcintosh V. Slade, 6 B. & C. 657 261 " Mellona," The, 10 Jur. 992 310 3 W.Rob. 7 113, 497 3 W. Rob. 16 76, 79, 80, 90, 95, 162 " Melpomene," The, L. R. 4 A. & E. 129 ; 42 L. J. Ad. 45 ; 28 L. T. K S. 76 ; 21 W. R. 956 ; 1 Asp. M. L. C. 515 314 " Mcmnon," The, 59 L. T. N. S. 289 ; 62 ih. 84 ; 6 Asp. M. L. C. 317 43, 47, 49, 52. 348, 440, 443, 449, 492 " Mentor," The, 1 C. Rob. 179 102 " Merchant Prince," The, 10 P. D. 139 ; 54 L. J. Ad. 79 ; 53 L. T. N. S. 914 ; 34 W. R. 231 ; 5 Asp. M. L. C. 520 = 361 " Mercurius," The 331 Meretony v. Dunlope, 1 T. R. 260 293 " Merle," The, 31 L. T. N. S. 447 ; 2 Asp. Mar. Law Cas. 402 ; 23 W. R. Dig. 216 73, 85, 86, 88 TABLE OF CASES. xU PAGE " Merrimac," The. 14 Wall. 199 13, 279, 618 Mersey Docks aud Harbour Trustees v. Gibbs, L. R. 1 H. L. 93 ; 14 L. T. N. S. 677; 12 Jur. N. S. 571 ; 14 W. E. 872 98—100, 253 Metcalfe v. Herington. 24 L. J. Ex. 314 ; 25 L. T. 86 98, 253 " Meteor," The, Ir. Rop. 9 Eq. 567 19, 135, 144, 243, 251 " Michelimo," The, and The "Dacca," Mitch. Mar. Reg. 1877.. 216, 362, 525 Michell V. Brown, 28 L. J. M. C. 53 258 Midland Insurance Co. v. Smith, 6 Q. B. D. 561 ; 50 L. J. Q. B. 329; 45 L. T. N. S. 411 ; 29 W. R. 850 293, 296 "Midlothian," The, 15 Jur. 806 310 " Milan," The, Lush. 388 ; 38 L. J. Ad. 105 ; 5 L. T. N. S. 590. . 27, 40, 104, 107, 133, 143, 212, 285, 286, 330 "Milanese," The, 4 Asp. Mar. Law Cas. 318 ; on app. 43 L. T. N. S. 107 ; 4 Asp. Mar. Law Cas. 438 335, 336, 397 Mills V. Armstrong. See The " Bernina," No. 2. Mills' Estate, Re, 34 Ch. D. 24 ; 56 L. J. Ch. 60 ; 55 L. T. N. S. 465 ; 35 W. R. 65 328, 337 Milwaukee Railway Co. v. Kellog, 4 Otto, 469 16 "Milwaukee," The, Brown, Ad. 313 349, 352, 438, 455, 468, 471 " Minna," The, L. R. 2 A. & E. 97 ; 17 W. R. Dig. 20 . . 106, 246, 500 " Minnehaha," The, Lush. 345 200 "Miranda," The, 7 P. D. 185 ; 51 L. J. Ad. 5G ; 47 L. T. N. S. 447 ; 30 \V. R. 615 ; 4 Asp. M. L. C. 595 306 MitcheU v. Tarbutt. 5 T. R. 649 103 "Mobile," The, Swab. Ad. 69; 5 W. R. 830 ; on app. Swab. Ad. 127 ; 28 L. T. 129 236, 238, 418, 511 "Moderation." The. 1 Moo. P. C. C. 528 ; 1 Mar. Law Cas. 0. S. 413; 9 L. T. N. S. 586 353 Moffat V. Bateman, L. R. 3 P. C. 115 ; 6 Moo. P. C. C. N. S. 369. . 25 " Mohlcr," The. 21 Wall. 231 518 Monaghan v. Horn, The " Garland," Duval (Canada), 409 319 " Monarch," The, and The " Success," 1 W. Rob. 21 .... 134, 135, 155 "Monkseaton," The, 14 P. D. 51 ; 58 L. J. Ad. 52 ; 60 L. T. N. S. 662 ; 37 W. R. 523 ; 6 Asp. M. L. C. 383 102, 329—336 " Monsoon," The, and The "Neptune," 2 Mar. Law Cas. 0. S. 289 ; Holt, 186; 13 L. T. N. S 510 433, 476 " Monticello," The, 1 Pars, on Ship. (ed. 1869) 566 397 " Montreal," The, 1 Sp. E. & A. 154 (note) 235 " Moorcock," The, 13 P. D. 157 ; 14 P. D. 64 ; 58 L. J. Ad. 15, 73 ; 59 L. T. N. S. 872 ; 60 ib. 654 ; 6 Asp. M. L. C. 357, 373 .... 100 Morewood v. Pollok, 1 El. & B. 743 1 74 Morgan v. Ravaz, 6 H. & N. 265 285 Morgan r. Sim. See The " City of London." " Morning Light," The, 2 Wall. 550 12, 406, 497, 499 Morrison v. General Steam Nav. Co., 8 Ex. 733; 22 L. J. Ex. 233. . 20, 39, 243 Xlii TABLE OF CASES. PAGE Morse «;. Slue, 3 Keb. 72, 112, 135; 1 Ventris, 190, 238 281, 287 Morton v. Hutchinson. See The "Fraukland " and The " Kestrel." "Moselle," The, 32 L. T. N. S. 570; 23 W. R. Dig. 216; 2 Asp. Mar. Law Cas. 586 260, 272 Mostyn v. Fabrigas, Cowp. 161 ; 1 S. L. C. 9th ed. 666 211 "Moxey," The, Abbot, Ad. 73 27 "Mud Hopper," The, 40 L. T. N. S. 462 13, 301 Muhammad Tusuf v. Peninsular and Oriental Steam Navigation Co., 6 Bombay L. R. 98 279 Muller V. Baldwin, L. R. 9 Q. B. 457 ; 43 L. J. Q. B. 164 ; 30 L. T. N. S. 864 ; 22 "W. K 909 263 " MuUingar," The, 26 L. T. N. S. 326 ; 1 Asp. M. L. C. 252. . . .76, 317 Mumford v. Crocker. See The " Queen of the Bay." Munro V. Pilkington, 31 L. J. Ad. 163 225 Murphy r. PalgTave, 21 L. T. N. S. 209 ; 3 M. L. C. O. S. 284 ... . 512 Mutrie v. Binney, 35 Ch. D. 014 ; 56 L. T. N. S. 455 ; 36 W. R. 136.. 223 N. "Nabob," The, Brown, Ad. 115 106, 499 "Naomi," The, 32 L.T. N. S. 836 333 "Naples," The, 11 P. D. 124 ; 55 L. J. Ad. 64 ; 55 L. T.N. S. 584; 35 W. R. 59 ; 6 Asp. M. L. C. 30 329, 330 " Narragansett," The, 10 Blatchf. 475 361, 462 National Steam Co. v. Merry. See The " Pennsylvania." " NeUie D.," The, Blatchf. 245 511 Nelson v. Couch, 15 C. B. N. S. 99 ; 33 L. J. C. P. 46 ; 8 L. T. N. S. 577 ; 11 W. R. 964 317 Nelson v. Pawcett, The " Resolution " and The " Langton," Marsd. Ad. Ca. 332 152 "Nepoter," The, L. R. 2 A. & E. 375 ; 38 L. J. Ad. 63 ; 22 L. T. N. S. 177 ; 18 W. R. 49 288 " Neptune," The, 1 Hag. 227 80 " Neptune the Second," The, 1 Dods. Ad. 467 89, 311, 509 " Nereus," The, 3 Bened. 238 511 Netherland Steamboat Co. v. Styles, 9 Moo. P. C. C. 286 28 "Nevada," The, 27 L. T. N. S. 720 ; 1 Asp. M. L. C. 477 217 . 10 Otto, 154 498 "Never Despair," The, 9 P. D. 34 ; 53 L. J. Ad. 30 ; 50 L. T. N. S. 369 ; 32 W. R. 559 ; 5 Asp. M. L. C. 211 316 " Neversink," The, 5 Blatchf. 539 94 " New Eagle," The, 4 Not. of Cas. 426 88 " New Ed," The, and The " Gustav," 1 Mar. Law Cas. O. S. 407 ; Holt, 28 ; 9 L. T. N. S. 547 369 New York and Baltimore Transjiortation Co. v. Philadelphia and Savannah Steamshix) Co., "The Keystone State," 22 How. 461 . . 185 " New York Packet," The, 4 Lower Canada, Rep. 343 252 TABLE OF CASES. xliii PAOE New York and Liverpool U. S. Mail Steamship Co. v. Rumball, 21 How. 372 31, 347, 472 " Newburgh," The, and The " Oscar," Holt, 231 476, 510 " Nevvbattle," The, 10 P. D. 33 ; 54 L. J. Ad. 10 ; 52 L. T. N. S. 15; 5 Asp. M. L. C. 35G ; 33 W. R. 318 222, 316, 337, 528 "Nichols," The, 7 Wall. G5G 4, 351, 354 Nicholson v. Mouncey, 15 East, 384 102 " Nicoliua," The, 2 W. Rob. 175 315 "Nightwatch," The, Lush. 542 ; 32 L. J. Ad. 47 ; 7 L. T. N. S. 396 206 " Nimrod," The, 15 Jur. 1201 463, 464 " Niobe," The, 13 P. D. 55 ; 57 L. J. Ad. 33 ; 59 L. T. N. S. 257 ; 36 W. R. 812 ; 6 Asp. M. L. C. 300 27, 191, 192, 199, 200 Nixon V. Roberts, 1 J. & H. 739 ; 4 L. T. N. S. 679 . .81, 167, 177, 180 "No," The, 1 Sp. 184 312 Noble c. Wilson, The " Eagle " and The " HopeweU " 149 "Nor," The, 2 Asp. Mar. Law Caa. 264 ; 30 L. T. N. S. 576 ; 22 W. R. 30 3, 411 " Norge," The, and The " Wolverine," Holt, 89 410 " Norma," The, 3 Asp. Mar. Law Cas. 272 ; 35 L. T. N. S. 418 . . 433 " Normandy," The, L. R. 3 A. & E. 152 ; 39 L. J. Ad. 48 ; 23 L. T. N. S. 631 ; 18 W. R. 903 103, 174, 175 "North American," The, and "The Wild Rose," 2 Mar. Law Cas. O. S. 319 ; 14 L. T. N. S. 68 250, 402 and The "Tecla Carmen," Sw. 358; Lush. 79 135, 307, 311, 337 North of England Assurance Association v. Armstrong, L. R. 5 Q. B. 244 ; 39 L. J. Q. B. 81 ; 21 L. T. N. S. 822 ; 18 W. R. 520 ; 3 Mar. Law Cas. 0. S. 330 293, 294 "North Lj'on," The, and The "Phoenix," GruU c. Carswell, Marsd. Ad. Ca. 295 148, 157 " Northampton," The, 1 Sp. E. & A. 152 69, 245, 269, 308, 502 "Northern Indiana," The, 3 Blatchf. 92 401, 499 " Northumbria," The, L. R. 3 A. & E. 6 ; 39 L. J. Ad. 3 ; 21 L. T. N. S. 681; 18 W. R. 188 ._ 112, 118, 169, 177, 181, 320 "Norway," The, Br. & L. 377 ; 12 L. T. N. S. 57 ; 13 W. R. 296.. 288 Norwich and New York Transportation Co., In re, 17 Blatchf. 221 . . 183 Noi-wich Steamboat Co. v. Wright, 13 Wall. 104 175, 183 Notara v. Henderson, L. R. 5 Q. B. 346 ; 39 L. J. Q. B. 167 ; 22 L. T. N. S. 577 ; on app. L. R. 7 Q. B. 225 ; 41 L. J. Q. B. 158 ; 26 L. T. N. S. 442 ; 20 AV. R. 443 116 Nothard v. Pepper, 17 C. B. N. S. 39 ; 10 L. T. N. S. 782 310 "Netting Hill," The, 9 P. D. 105 ; 55 L. J. Ad. 56 ; 51 L. T. N. S. 66 ; 32 W. R. 764 ; 5 Asp. M. L. C. 241 110, 122 Nouvion V. Freeman, 15 Ap. Ca. 1 ; 59 L. J. Ch. 337 ; 62 L.T. N. S. 189 224 "Nova Scotia," The. and The " Quebec," 1 Quebec L. R. 1 U xliv TA15LE OF CASES. PAGE Nugent V. Smith, 1 C. P. D. 19 ; 45 L. J. C. P. 19 ; 33 L. T. N. S. 731 ; on app. 1 C. P. D. 423 ; 45 L. J..C. P. 697 ; 34 L. T. N. S. 827 ; 24 W. R. 237 281, 282 " Nj-mph," The, Swab. Ad. 86 , 79, 80 O. " Oakfielcl." The, 11 P. D. 34 ; 55 L. J. Ad. 11 ; 54 L. T. N. S. 578 ; 34 W. R. 687 ; 5 A.sp. M. L. C. 575 .... 244, 245, 250, 251, 331, 332 Oakley v. Speedy, 4 Asp. M. L. C. 134; 40 L. T. N. S. 881 ; 27 W. E,. Dig. 199 G7, 258, 298 " Obey," The, L. E. 1 A. & E. 102 ; 12 Jur. N. S. 817. . . . 172, 236, 246 Ocean Steamship Co. v. Apcar & Co. See The " Arratoon Apear." " Ocean Wave," The, Marshall v. Moran, L. R. 3P. C. 205 ; 23 L. T. N. S. 218 24, 193, 194, 241—246, 269 Oceanic Steam Nav. Co. v. Jones. See The "Alexandria." " Oceano," The, and The " Virgo," 3 P. D. 60 427, 428, 468, 469 "Oceanus," The, 5 Bened. 545 ; on app. 12 Blatchf. 430 ..429, 460, 471 " Octavia Stella," The, 57 L. T. N. S. 632 ; 6 Asp. M. L. C. 182. . 227, 257 " Odessa," The, 46 L. T. N. S. 77 ; 4 Asp. M. L. C. 493 420 Omoa Cleland Coal and Iron Co. v. Huntley, 2 C. P. D. 464 287 O'Neal V. Sears, 2 Sprague, 52 509 " Onitava," The, and The " Janet," Marsd. Ad. Ca. 337 155 "Orient," The, 3 Mar. Law Ca.s. O. S. 321; 39 L. J. Ad. 8; 21 L. T. N. S. 761 ; on app. nom. Yeo v. Tatham, L. R. 3 P. C. 696; 40 L. J. Ad. 29 ; 20 W. R. 6 79, 89, 90, 313, 317 " Orion," The, 2 Mar. Law Cas. 0. S. Dig. 822 402 "Orpheus," The, L. R. 3 A. & E. 308 ; 40 L. J. Ad. 24 ; 23 L. T. N. S. 855 ; 19 W. R. Dig. 16 81, 178 " Orwell," The, 13 P. D. 80 ; 57 L. J. Ad. 61 ; 59 L. T. N. S. 312 ; 36 W. R. 703 ; 6 Asp. M. L. C. 309 122, 324 Ad. Div. May, 1887 576 Ad. Div. 17th December, 1887 477, 493, 511 "Oscar," The, 10 L. T. N. S. 789; 12 W. R. 872 310 " Osmanli," The, 7 Not. of Cas. 507 310 "Ostrich," The, and The " Benbow," Mitch. Mar. Reg. 1878 .... 257 " Otter," The, L. R. 4 A. & E. 203 ; 30 L. T. N. S. 43 ; 22 W. R. 557 31, 312, 402, 515 " Owen Wallis," The. L. R. 4 A. & E. 175; 43 L. J. Ad. 36 ; 30 L. T. N. S. 41 ; 22 W. R. 695 343, 520 Owen V. The "Providence," Marsd. Ad. Ca. 13 87 "Owl," The, and The " Ariadne." Sec Little v. Bums. Owners of The " Velasquez " v. Briggs. See The "Velasquez." P. "Pacific," The, 9 P. D. 124 ; 53 L. J. Ad. 66; 5 Asp. Mar. Law Cas. 263 : 51 L. T. N. S. 127 ; 33 W. R. 2 393, 452. 512 TAHLK OF CASES. xlv PAGE "Pactolus," The, Swab. Ad. 173 ; 28 L. T. 220 Ill Page V. Dcfries, 7 B. ic S. 137 7U " Paktiue," The, 1 Asp. Mar. Law Cas. 468 ; 27 L. T. N. S. 631 . . 433, 461, 47G, oil, 512 "Palermo," The, 9 P. D. 6 ; 53 L. J. Ad. 6 ; 49 L. T. N. S. 551 ; 32 W. R. 403 ; 5 Asp. Mar. Law Cas. 165 310 (crew spaces), 10 P. D. 21 ; 54 L. J. Ad. 46; 52 L. T. N. S. 390 ; 33 W. R. 643 ; 5 Asp. M. L. C. 369 170 "Palestine," The, 13 W. R. HI 40 "Palinurus," The, 13 P. D. 14; 57 L. J. Ad. 21; 5S L. T. N. S. 533; 36 W. R. 768 ; 37 ib. 266 ; 6 Asp. M. L. C. 271 394 " Palomares," The, 10 P. D. 30 ; 54 L. J. Ad. 54 ; 52 L. T. N. S. 57 ; 33 W. R. 616 ; 5 Asp. M. L. C. 343 327 " Panther," The, 1 Sp. E. & A. 31 463, 464 " Para," The, Ad. Div. 41h March, 1886 378 "Parana," The, 1 P. D. 452 ; 45 L. J. Ad. 108 ; 35 L. T. N. S. 32: 3 Asp. M. L. C. 220 ; ou app. 2 P. D. 118 ; 36 L. T. N. S. 388 ; 3 Asp. M. L. C. 399 122, 123, 333, 335 " Parkersburg," The, 5 Blatchf. 247 499 "Parlement Beige," The, 4 P. D. 129 ; 48 L. J. Ad. 18 ; 40 L. T. N. S. 222 ; ou app. 5 P. D. 197 ; 42 L. T. N. S. 273 ; 4 Asp. Mar. Law Cas. 234 ; 28 W. R. 642 76, 79, 89, 220 Pamaby r. Lancaster Canal Co., 11 Ad. & EI. 223 ; 9 L. J. Ex. 338; 3P. &D. 162 100 Parnell v. Mort, LiddeU & Co., 29 Ch. D. 325 : 53 L. T. N. S. 186 ; 33 W. R. 481 338 " Pasithea," The, 5 P. D. 5 314 "Patria," The, L. R. 3 A. & E. 436 ; 41 L. J. Ad. 32 ; 1 Asp. M. L. C. 71 ; 24 L. T. N. S. 849 85, 161 "Patriotto," The, and The "Rival," 2 L. T. N. S. 301 500, 503 "Patroclus," The, 13 P. D. 54 ; 58 L. T. N. S. 774 ; 36 W. R. 928 ; 6 Asp. M. L. C. 285 394 Peake v. Scrntch, 7 Q. B. 603 272 Pearce v. Page, 24 How. 228 , 520 "Peckforton Castle," The, 2 P. D. 222 ; 47 L. J. Ad. 12 ; 37 L. T. N. S. 539 ; 26 W. R. 81 ; ou app. 3 P. D. II ; 47 L. J. Ad. 69 ; 37 L. T. N. S. 816 ; 26 W. R. 316 422, 457 " Peerless," The, 6 L. T. N. S. 107 332 " Peerless," The, Lush. 30 ; 29 L. J. Ad. 49 ; 2 L. T. N. S. 25 : on app. nom. Prowse r. European, «S:c. Co., 13 Moo. P. C. C. 484 ; 30 L. J. Ad. 89 ; 3 L. T. N. S. 125 10, 210, 231, 245, 250, 505, 524 " Pennsylvania," The, National Steamship Co. v. Merry, 3 Mar. Law Cas., O. S. 477; 23 L. T. N. S. 55 8, 40, 64. 224, 397. 400 19 Wall. 125 ; 31 L. T. N. S. 103 ... . 64, 224, 3G6, 375, 402 "Pensher," The, Swab. Ad. 211; 29L. T. 12 112 " Pepperell," The, Swab. Ad. 12 405 " Peri," The, 32 L. J. Ad. 467 330 " Perim," The, Ad. Div. 10th Nov. 1887 307, 465 Perkins v. GingeU, 60 J. P. 277 576, 684 xlvi TAin.E OF CASES. PAGE " Perkins," The, 2 Mar. Law Cas., 0. S. Dig. 548 27, 86 " Perth," The, 3 Hag. 414 402 "Peni," The, 1 Pritch. Ad. Dig. 2iid ed. 440; 3rd. od. 1412 ..,.24, 242 " Peshawur," The, 8 P. D. 32 ; 52 L. J. Ad. 30 ; 48 L. T. N. S. 797; 31 W. E,. 660 ; 5 Asp. M. L. C. 89 223 "Pet," The, 20 L. T. N. S. 9C1 ; 17 W. R. 899 317 " Petersfield," The, and The "Judith Randolph," Marsd. Ad. Ca. 332 135, 150, 156 Petley v. Catto. See The " Christiana." "Phehe," The, Ware's Rep. 263 68, 74, 91, 161, 162 Phillips V. Baillie, 3 Dougl. 374 289 ■ V. Headlam, 2 B. & Ad. 280 256 V. Homfray, 24 Ch. D. 439 ; 52 L. J. Ch. 833 ; 49 L. T. N. S. 5 ; 32 W. R. 6 80 "Philotaxe,"The, 37 L.T.N. S. 540; SAsp.M.C. 512. .431,457,495,503 " Picton," The, 4 Duval (Canada), 048 210 "Pieve Superiore," The, L. R. 4 A. & E. 170 ; 43 L. J. Ad. 1 ; 29 L. T. N. S. 702 ; 22 W. R. 416 ; on app. L. R. 5 P. C. 482 ; 43 L. J. Ad. 20 ; 30 L. T. N. S. 887 ; 22 W. R. 777 85, 86, 288 Pink V. Fleming, 25 Q. B. D. 396 ; 63 L. T. N. S. 413; 59 L. J. Q. B. 559 121 " Pladda," The, 2 P. D. 34 ; 46 L. J. Ad. 61 10, 12, 497, 507 " Planet," The, Brown, Ad. 124 502 and The " Aura," Holt, 255 491 " Plato," The, and The " Perseverance," Holt, 262 8,510, 516 PluckweU V. Wilson, 5 Car. & P. 375 466 Plummer v. Wildman, 3 M. & S. 482 297, 303 r. Woodburn, 4 B. & C. 625 224 " Plymouth," The, 3 Wall. 20 86 Pollok V. M'Alpin. See The " Lochlibo." Pontifex v. Midland Ry. Co., 3 Q. B. D. 23 ; 47 L. J. Q. B. 28 ; 37 L. T. N. S. 403 ; 26 W. R. 209 285 Portevant v. The "Bella Donna," Newb. Ad. 610 501 " Portsmouth," The, 6 C. Rob. 317 (note) 257 "Potomac," The, 8 WaU. 590 310, 434, 473 15 Otto, G30 289, 294 Poulton V. London & South Western Ry. Co., L. R. 2 Q. B. 534 ; 36 L. J. Q. B. 294 ; 17 L. T. N. S. 841 ; 16 W. R. 309 70 Price V. Dewhurst, 8 Sim. 279 225 Priestly v. Fowler, 3 M. & W. 1 ; 7 L. J. Ex. 42 109, 205 " Princess," The, 52 L. T. N. S. 932 ; 5 Asp. M. L. C. 451 118 " Princessan Lovisa," The, and The " Artemas," Holt, 75 ; 2 M. L. C. O. S. 241 410, 422, 424 "Princeton," The, 3 P. D. 90 ; 47 L. J. Ad. 33 ; 38 L. T. N. S. 260 245, 269, 331, 332,502 " Printz Frederick," The, 2 Dods. 451 103 " Priscilla," The, L. R. 3 A. & E. 125; 23 L. T. N. S. 566.. ..417, 461, 491, 511 TABLE OF CASES. xlvU TAOE "Privateer," The, 7 L. R. Ir. 10.5 411, 418 " Protector," The, 1 W. Rob. 45 89 "Promise," The, and 11. M.S. " Topazc," 2 M. L. C. 0. S. 38; Holt, 165 ;357 " Public Opinion," Tlie, 2 Hag. 398 210 Purkis V. Flower. L. R. 9 Q. B. 114 ; 43 L. J. Q. B. 33 ; 30 L. T. N. S. 40; 22 W. R. 239 81, 325, 327 "Pyru.s," The, and The " Smales," 2 M. L. C. 0. S. 288 ; Holt, 40. .4, 40 Q. Quarman v. Burnett, 6 M. & W. 499 192 " Quebec," The, 19 Lower Canada Jurist, 197 279 1 Quebec L. R. 1 462 Quebec Mar. Ins. Co. v. Commercial Bank of Canada, L. R. 3 P. C. 234 ; 39 L. J. P. C. 53 ; 22 L. T. N. S. 559 ; 18 W. R. 769 .... 257 " Queen," The, L. R. 2 A. & E. 354 ; 20 L. T. N. S. 855 . . 61, 63, 236, 246 Queen, The, r. S:c. See Reg-, v. &c. " Queen of the Bay," The, Mumford v. Crocker, Ship. Gaz., June 14th, 1878 260 " Queen of the East," The, and The " Calypso," 4 Bened. 103 502 " Queen of the Orwell," The, 1 M. L. C. O. S. 300 ; 7 L. T. N. S. 839 62 " Quickstep," The, 9 Wall. 665 197, 200 (Tug and tow). 15 P. D. 196 ; 59 L. J. Q. B. 65 ; 63 L. T. N. S. 713 190, 193 R. " R. B. Forbes," The, 1 Sprague, 328 76. 197 " R. L. Alston," The. See " Alston," The R. L. Radley r. London & Xorth "Western Ry. Co., 1 App. Cas. 754 ; 46 L. J. Ex. D. 573 ; 35 L. T. N. S. 637 ; 25 W. R. 147 20 " Radnorshire," The, 5 P. D. 172 ; 49 L. J. Ad. 48 ; 4 Asp. M. L. C. 338; 43L. T. N. S. 319 311 " Raisby," The, 53 L. T. N. S. 56 ; 5 Asp. M. L. C. 473 338 Raisin v. Mitchell, 9 C. & P. 613 28, 131 " Raith-n-aite Hull," The, 2 Asp. M. L. C. 210 ; 30 L. T. N. S. 233. . 524 " Rajah." The, L. R. 3 A. & E. 539 ; 1 Asp. M. L. C. 403 ; 41 L. J. Ad. 97 ; 27 L. T. N. S. 102 ; 21 W. R. 14 174 " Ralph Creyke," The, 55 L. T. K. S. 165 ; 6 Asp. M. L. C. 19 . . . . 514. 515, 520 Ramsay v. Quinn, Ir. Rep. 8 C. L. 322 109 Randal v. Cochrane, 1 Ves. 98 293 " Ranger," The. See The " Cologne " and The " Ranger." Ranldne v. Raschen. 4 Scs. Cas. 4th Series, 725 180 Rayne, Ex parte, 1 Gale & Dav. 374 ; 1 Q. B. 982 177 xlviii TABl.K OF CASES. PAGE "Rebecca," The, Ware's Rep. 188 68, 161 " Recepta." The, 14 P. D. 131 ; oH L. J. Ad. 70 ; 61 L. T. N. S. 698 ; 6 Asp. M. L. C. 433 171 Redhead r. Midland Ry. Co., L. R. 2 Q. B. 412 ; on app. ib. 4 Q. B. 379 282 Redpath v. Allan. See "The Hibernian." Reed c. Welford, Marsd. Ad. Ca. 308 149 Reg. r. Anderson, L. R. 1 C. C. R. 161 ; 38 L. J. M. C. 12 ; 19 L. T. N. S. 400 ; 1 7 W. R. 208 209, 299 V. Barnett, 2 C. & K. 343 298 r. CaiT, 10 Q. B. D. 7C ; 52 L. J. M. C. 12 ; 47 L. T. N. S. 450 ; 31 W. R. 121 209, 299, 300 V. Cavendish, I. R. 8 C. L. 178 31 r. City of London Court, 8 Q. B. D. 609 ; 51 L. J. Q. B. 305 ; 30 W. R. 5G6 210, 327 V. Collector of Customs, 2 M. & S. 225 107 v. Dodd, 2 Johnson (New Zealand), 598 300 V. Haines, 2 C. & K. 368 298 V. Keyn, 2 Ex. D. 63 ; 46 L. J. M. C. 17 ; 25 W. R. Dig. 87. . 63, 70, 208, 211, 217, 299, 300 V. Lewis, 1 D. & B. C. C. 182 300 V. Menham, 1 F. & F. 369 299 r. Sattler, D. & B. C. C. 525 299 V. Seberg, L. R. 1 C. C. R. 264 ; 39 L. J. M. C. 133 (nom. Reg. V. Von Seburg) ; 22 L. T. N. S. 523 (nom. Reg. v. Sven Seberg) 299 V. Spence, 1 Cox, C. C. 352 298 V. Stanton, 8 Ell. & B. 445 ; 27 L. J. Q. B. 105 ; 22 Jur. 10 ; 30L. T. 118; 6W. R. 39 260, 264, 272, 273 V. Sven Seberg. See Reg. v. Seberg. V. Taylor, 9 C. & P. 672 297 . V. Williams, 9 App. Cas. 45 ; 53 L. J. P. C. 04 ; 51 L. T. N. S. 546 100 " Regina del Mare," The, Br. & L. 315 296 " Reiher," The, 45 L. T. N. S. 767 ; 4 Asp. M. L. C. 478 392, 393 " Reinbeck," The, 60 L. T. N. S. 209 ; Asp. M. L. C. 366 233 " Relief," The, Olcott, Ad. 104 408 Rennen c. Humble. See The " Hopewell " and The "Prosperous." " Rescue," The, 2 Sprague, 16 , 197 " Resolution," The, 60 L. T. N. S. 430 ; 6 Asp. M. L. C. 363 402 and The " Langton," Nelson c. Fawcett, Marsd. Ad. Ca. 332 12, 152, 156 "Retriever," The, and The " Queen," 2 M. L. C. 0. S. 555 ; 17 L. T. N. S. 329 301 Rex V. Allen, 7 Car. & P. 153 298 . V. Green, 7 Car. & P. 156 298 V. Jemot, Russell on Crimes, 5th ed. 1 1 (note) 299 V. Lamb, 5 T. R. 76 261 lAliLK OF CASES. xlix PAOE Rex V. Neale, 8 T. R. 241 2(Jl V. Watts, 2 Esi). 675 'J6 " Rhode Islaud," Tlio, Olcott, Ad. oOo ; 1 Blatchf. 363 429, 4G0 "Rhondda," Tlie, Sciuluna t-. Stevenson, 8 App. Ca. 549 ; 49 L. T. N. S. 210 438, 464, 515 " Rhosina," The, 10 P. D. 24 ; ib. 131 ; 54 L. J. Ad. 72 ; 53 L. T. N. S. 30 ; 33 W. R. 794 ; 5 Asp. M. L. C. 460 97, 101, 244, 246 "Rigborgs Minde," The, 8 P. D. 132 ; 52 L. J. Ad. 74 ; 49 L. T. N. S. 232; 5 Asp. M. L. C. 123.... 94, 142, 234-236, 244-249, 268, 328—336 Rio Grande do Sul Steamship Co., In re The, 5 Ch. D. 282 ; 46 L. J. Ch. 277 ; 36 L. T. N. S. 603 ; 25 W. R. 328 ; 3 Asp. M. L. C. 424 80, 84 " Ripen," The, 10 P. D. 65 ; 54 L. J. Ad. 56 ; 5 Asp. M. L. C. 365 ; 52 L. T. N. S. 438 ; 33 W. R. 659 59, 242, 250, 365, 395 6 Not. of Cas. 245 248 " Risca," The, Ad. Div. 25th March, 1886 310 " Risoluto," The, 8 P. D. 109 ; 52 L. J. Ad. 46 ; 48 L. T. N. S. 909 ; 31 W. R. 657 ; 5 Asp. M. L. C. 93 121 Ritchie v. Bousfield, 7 Taunt. 309 229 " River Derwent," The, 62 L. T. N. S. 45 ; 6 Asp. M. L. C. 467 . .524, 582, 589 " River Lagan," The, 57 L. J. Ad. 28 ; 58 L. T. N. S. 773 ; 6 Asp. M. L. C. 281 331 River Wear Commissioners v. Adamson, 1 Q. B. D. 546 ; 29 L. T. N. S. 530; 22 W. R. 47 ; 3 Asp. M. L. C. 242 ; on app. 2 App. Cas. 743 ; 46 L. J. Q. B. C. P. & Ex. 82 ; 37 L. T. N. S. 543 ; 24 W. R. 872; 3 Asp. M. L. C. 521 69, 72, 75, 86, 90, 178, 233 " Rob Roy," The, 3 W. Rob. 190 6, 362, 363 " Robert," The, Ad. Ct. 9th Juno, 1818 156 " Robert and Ann," The, and The " Lloyd's," Holt, 55 . .375, 387, 497 " Robert Dixon," The, 40 L. T. N. S. 333 ; 4 P. D. 121 ; 27 W. R. 736; 4 Asp. M. L. C. 95 ; on app. 5 P. D. 54 ; 42 L. T. N. S. 344; 28 W. R. 716; 4 Asp. M. L. C. 246 200—202 Robson V. Owners of The " Kate," 21 Q. B. D. 13 ; 57 L. J. Q. B. 546 ; 59 L. T. N. S. 557 ; 36 W. R. 910 ; 6 Asp. M. L. C. 330 . . 327 Rodriguez v. Mclhuish, 10 Ex. 110 269 "Roeclifl," The, L. R. 2 A. & E. 363 ; 38 L. J. Ad. 56; 20 L. T. N. S. 586 ; 17 W. R. 745 81 Rolles V. Newell, 25 Q. B. D. 335 ; 59 L. J. Q. B. 423 ; 63 L. T. N. S. 384 ; 39 W. R. 96 584 " Rona," The, 7 P. D. 247 ; 51 L. J. Ad. 65 ; 46 L. T. N. S. 601 ; 30 W. R. 614; 4 Asp. M. L. C. 520 326, 327 and The " Ava," 29 L. T. N. S. 781 ; 2 A.sp. Mar. Law Cas. 182 134, 135, 136, 145, 353, 363, 406, 424, 451 Roorke r. White Moss Colliery Co., 1 C. P. D. 556 ; on app. 2 C. P. D. 205 190 "RosaUe," The, 5 P. D. 245; 4 Asp. M. L. C. 384 ; 50 L. J. Ad. 3; 44 L. T. N. S. 32 31, 366, 375, 414, 415, 475,477, 487, 502 " Rose," The, 2 W. Rob. 1 409, 430, 452 M. . Lancashire and Yorkshire Rail. Co., L. R. 9 Q. B. 263. . 17 Snelling v. Pulling, 29 Ch. D. 85 ; 52 L. T. N. S. 335 ; 33 W. R. 449 338 "Soils," The, 10 P. D. 137 ; 54 L. J. Ad. 52 ; 52 L. T. N. S. 440 ; 33 W. R. 659 ; 5 Asp. M. L. C. 368 . , 304 " Solway," The, 10 P. D. 137 ; 54 L. J. Ad. 83 ; 53 L. T. N. S. 680; 34 W. R. 232; 5 Asp. M. L. C. 482 310, 311 "South Sea," The, Swab. Ad. 141 117 Spaight V. Tcdcastle, G Ap. Cas. 217 ; 4 Asp. M. L. C. 406 ; 44 L. T. N. S. 509 ; 29 W. R. 7C1..17, 22, 24, 94, 144, 197, 198, 203, 236—246 TAIJLE OF CASES. liii PAGE " Spearman," The. Sec The " Tourri " and The "Spearman." Speller r. Bristol Steam NaviH-ation Co., i;5 Q. B. D. 00 ; n3 L. J. Q. B. 322 ; oO L. T. N. S. 410 ; 32 W. R. C7U ; 5 Asp. M. L. C. 22S...319 " Spindrift," The. See The " Jennie S. Barker." " Spirit of the Ocean," The, Br. & Lush. 336 ; 34 L. J. Ad. 74 ; 2 Mar. Law Cas. O. S. 192 ; 12 L. T. N S. 230 171 " Sprightly," The, and The " WeUs." See Hay v. Le Neve. "Spring," The, L. R. 1 A. & E. 99 ; 12 Jur. N. S. 788 411, 418 Stackpoole v. Betridgo, 5 Victoria L. E,. 302 67 " Stadacona," The, 5 Not. of Cas. 371 356 " Staffordsliire," The, L. R. 4 P. C. 194 87 " Stakesby," The. 15 P. D. 166 ; 63 L. T. N. S. 115 ; 39 W. R. 80 ■ 59 L. J. Ad. 72 394 " Stanmore," The, 10 P. D. 134 ; 54 L. J. Ad. 89 ; 53 L. T. N. S. 10 ; 5 Asp. M. L. C. 441 348, 350, 444 "Star," The 416 " Star of India," The, 1 P. D. 466 ; 45 L. J. Ad. 102 ; 35 L. T. N S. 407; 25 W. R. 377; 3 Asp. M. L. C. 261 Ill, 120 Steel V. Le-ster, 3 C. P. D. 121 ; 47 L. J. C. P. 43 ; 37 L. T. N. S.' 642 ; 26 W. R. 212 ; 3 Asp. M. L. C. 537 74, 178 " Stephen Morgan," The, 4 Otto, 599 47S " Sterling," The, and The "Equator," 16 Otto, 647 137, 197 " Stettin," The, Br. & Lush. 199 ; 31 L. J. Ad. 208 ; 6 L. T. N. S. 613 261, 272 Stevens v. The "S. W. Downs " and The "Storm," Newb. Ad. 458 13 " Stirlingshire," The, and The " Africa," 2 M. L. C. 0. S. Dig. 672 510 Stoomvaart Maatschappy Nederland v. Peninsular and Oriental Steam Navigation Co. See The " Voorwaarts " and The "Khedive." "Stork," The, and The "Never Despair." See The "Never Despair." " Stoi-mcock," The, 4 Asp. M. L. C. 410 ; 53 L. T. N. S. 53 172 Stort V. Clements, 1 Peake, 107 66, 102, 227 Straker r. Ilartland, 2 H. & M. 570; 34 L. J. Ch. 122; 11 L. T. N. S. 622 ; 10 Jur. N. S. 1143 1 77 " Stranger," The, 6 Not. of Cas. 36 409, 496 Brown, Ad. 281 ; 24 L. T. N. S. 364 ... . 197, 200, 201 " Strathnaver," The, 1 Ap. Cas. 58 319^ 33O Stuart r. Isemonger. See The "Diana." Sturges V. Boyer, 24 How. 110 196 V. Clough, 21 How. 451 ,.. 51 7 Submarine Telegraph Co. v. Dickson, 15 C. B. N. S. 759 ; 33 L. J. C. P. 139 ; 10 Jur. N. S. 129 ; 10 L. T. N. S. 32 ; 12 W. R. 384. 213 "Sunny side, "The, 1 Otto, 208; (Ct. below) 1 Asp. M. C. 91 ..64. 356, 359, 366, 430, 475, 479, 485, 487, 499 "Superb," The, and The "Florence Bragington." See The " Florence Bragmgton." " Superior," The, 6 Not. of Cas. 607 482, 483 liv TABLE OF CASES. PAGE " Supply," H.M.S., 2 Mar. Law Gas. 0. S. 262 ; Holt, 189 ; 12 L. T. N. S. 799 528 " Sutherland," The, 12 P. D. 154 ; 56 L. J. Ad. 94 ; 57 L. T. N. S. 631 ; 36 W. R. 13 ; 6 Asp. M. L. C. 181 373 Sutton v. Mitchell, 1 T. R. 18 165 V. Sutton, 22 Ch. D. 511 ; 52 L. J. Ch. 333 ; 48 L. T. N. S. 95; 31 W. R. 369 134 "Swallow," H.M.S., Swab. Ad. 30 309, 331 The, 3 Asp. M. L. C. 371 ; 36 L. T. N. S. 331 11, 520 " Swan," The, 3 Blatchf . 285 97 89 L. T. 138 326 " Swanland," The, 2 Sp. E. & A. 107 20, 36, 37, 40, 60 "Swansea," The, aud The "Condor," 4 P. D. 115; 48 L. J. Ad. 33 ; 4 Asp. Mar. Law Gas. 115 ; 40 L. T. N. S. 442 ; 27 W. R. 748 58, 299, 335 " Sweepstakes," The, Brown, Ad. 509 199 "Swift," The, 1 Dods. Ad. 320 220 " Sylph," The, 2 Sp. E. & A. 75 349, 357, 362, 363, 463 Swab. Ad. 233 353 . L. R. 2 A. & E. 24 ; 37 L. J. Ad. 14 ; 17 L. T. N. S. 519 85,309,317, 318 " Sylvester Hale," The, 6 Bened. 523 345, 410 " Syracuse," The, 9 Wall. 672 452 12 Wall. 167 200, 356 T. G.,Inre, Ir. Rep. 11 Eq. 151 85 " Tabor," The, Nautical Magazine, 1880, p. 323 453 " Talabot," The, 15 P. D. 194 469 "Tasmania," The, No. 1 (lien), 13 P. D. 110; 57 L. J. Ad. 49; 59 L. T. N. S. 263 ; 6 Asp. M. L. G. 305 .... 65, 72, 89—92, 194, 204, 287 No. 2 (Art. 23), 14 P. D. 53 ; 15 Ap. Gas. 223 ; 60 L. T. N. S. 692 ; 63 ii. 1 6, 487, 488 Taylor v. Dewar, 5 B. & S. 58 ; 33 L. J. Q. B. 141 ; 10 L. T. N. S. 267 ; 12 W. R. 579 106, 291, 295, 318 . V. Carryl, 20 How. 584 79 " Tecla Garmen," The, Lush. 79 139 " Telegraph," The, Valentine v. Cleugh, 8 Moo. P. C. C. 167 ; 1 Sp. E. & A. 427 31, 39, 328, 337, 365 " Temiscouata," The, 2 Sp. 208 ; 1 Jur. N. S. 479 87 "Temora," The, Lush. 17 ; 1 L. T. N. S. 418; 8 W. R. Dig. 21.. 260, 272 Tennant & Co. v. Ellis & Co., 6 Q. B. D. 46 338 Terrel, In re, 22 Ch. D. 473 ; 47 L. T. N. S. 588 ; 31 W. R. 208 . . 338 " Test," The, 5 Not. of Gas. 276 353, 472, 473, 482, 489, 491 " Teutonia," The, 23 Wall. 77 402 TABLE OF CASES. Iv "Thames," The. See The " Sisters." page 5 C. Rob. 345 •■^17 " Thames," Tlic, and The " Lutetia," Machireii f. Compa^ie Fran- caisc de Navig-ation u Vapeur, 9 Ap. Ca. 640 342, 444, 450 and The " Stork," Holt, 151 424 " Tlieodore H. Rawd," The, 12 Ap. Ca. 217 ; 56 L. J. Ad. 65 ; 56 L. T. N. S. 343; 35 W. R. 781; 6 Asp. M. L. C. 122 ....347,414,437,449 " Thetford." The, 57 L. T. N. S. 455 ; 6 Asp. M. L. C. 179 573 "Thetis," The, L. R. 2 A. & E. 365; 38 L. J. Ad. 42 ; 22 L. T. N. S. 276 ; 3 Mar. Law Cas. 0. S. 357 13, 69, 205 " Thomas and Jane," The, and The " Isabella," Reed c. "Wellford, Marsd. Ad. Ca. 308 1-^8 " Thomas Joliffe," The. See The "Avon " and The " Thomas Joliffe." "Thomas Lea," The, 35 L. T. N. S. 406; 3 Asp. M. L. C. 260.... 361 " Thomas Martin," The, 3 Blatchf. 517 406 " Thomas Towell," The, and The " Cuba," 2 Mar. Law Cas. 0. S. 344 ; 14 L. T. N. S. 603 3,8 Thompson v. Hopper, 6 E. & B. 191 292 r. Reynolds, 7 E. & B. 172; 26 L. J. Q, B. 93 ; 21 Jur. N.S.464 ...: 291, 292 Thomson v. South Eastern Railway Co., 9 Q. B. D. 320; 51 L. J. Q. B. 322 ; 46 L. T. N. S. 513 ; 30 W. R. 537 314 "Thornley," The, 7 Jur. 659 11, 517 " Thornton," The, 2 Bened. 429 507, 509 Thornton v. Bolaud, 2 Bing. 219 261 Thorogoodv. Bryan, 8C. B. 115; 18 L. J. C. P. 336 65, 104 Thorp V. Hammond, 12 Wall. 408 94, 500, 511 "Three Relations," The, and The '• Britannia," Faye c. Graham, Marsd. Ad. Ca. 331 153 " Thurin-ia," The, 1 Asp. M. L. C. 283 ; 41 L. J. Ad. 44 ; 26 L. T. N. S. 446 : 114,115, 217 "Thyatira," The, 8 P. D. 115 ; 52 L. J. Ad. 85 ; 49 L. T. N. S. 406; 32 W. R. 276; 5 Asp. M. L. C. 178 118 " Ticonderoga," The, Swab. Ad. 215 76, 90, 95, 186 Tillett, Re, Ex parte Kingscote, 60 L. T. N. S. 575 88 Tindall r. Bell, 11 M. & W. 228 119 " Tirzah," The, 4 P. D. 33 ; 48 L. J. Ad. 15 ; 39 L. T. N. S. 547 ; 27 W. R. 584 ; 4 Asp. M. L. C. 55 368, 369, 377 "Tolka," The, Ad. Div. 14th Dec. 1886 43, 378 " Topaze," H.M.S., 2 Mar. Law Cas. O. S. 38 ; Holt, 165 ; 10 L. T. N. S. 659; 12 W. R. 923 528 Toward v. Turkistan, Sh. Gaz. 19th Dec. 1885 101 " Tracy J. Bronson," The, 3 Boned. 341 158, 410 Traders North Staffordshire Carrying Co., In re, L. R. 19 Eq. 60 . . 84 "Transit," The, 3 Bened. 192 416, 475 "Traveller," The, 2 W. Rob. 197 • • • • 409 Trew V Peirce, The "Mary of Poole" and The "Mary of Wey- mouth," Marsd. Ad. Ca. 264 135, 136, 146 " Trident," The, 1 Sp. E. & A. 217 355, 514 \ Ivi TABLE OF CASES. PAQB "Triune," The, 3 Hag. 114 67,166, 172 Trufort, Re, Trafford v. Blanc, 36 Cli. D. 600 ; 36 W. E,. 163 224 Tiyon V. National Provident Institution, 16 Q. B. D. 167; 55 L. J. Q. B. 236 ; 54 L. T. N. S. 167 ; 34 W. R. 398 107 Tuff r. Warman, 2 C. B. N. S. 740 ; 26 L. J. C. P. 263 ; 5 W. R. 685 ; on app. 5 C. B. N. S. 573 ; 27 L. J. C. P. 322 ; 29 L. T. 199; 6 ^y. R. 093 16, 21, 39, 46 "Tweedsdale," The, 14 P. D. 164 ; 58 L. J. Ad. 41 ; 01 L. T. N. S. 371; 37 W. R. 783; 6 Asp. M. L. C. 430 385, 432, 450 "Two Ellens," The, Johnson v. Black, L. R. 4 P. C. 161 ; 41 L. J. Ad. 33 ; 26 L. T. N. S. 1 ; 1 Asp. M. L. C. 208 79, 86, 88 " Two Sisters," The, 1 Pritch. Ad. Dig. (Ed. 1887) 248 31 Tyne Improvement Commissioners v. General Steam Nav. Co., L. R. 2 Q. B. 65 ; 36 L. J. Q. B. 22 ; 15 L. T. N. S. 487 ; 15 W. R. 178 230, 259, 274 " U. S. Grant," The, and The " TaUy ho," 7 Bened. 195 370 " Uhla," The, L. R. 2 A. & E. 29 (note) ; 3 Mar. Law Cas. O. S. 148; 37 L. J. Ad. 16 (note); 19 L. T. N. S. 89....8, 85,86, 509, oi6 " Ulster," The, 1 Mar. Law Cas. 0. S. 234 ; 6 L. T. N. S. 736 ; 10 W. R. 794 • 496, 519 1 Moo. P. C. C. jST. S. 31 337 "Umbilo," The, 1891, P. 118; 60L. J. Ad. 7 171 " Uncas," The, and The " Maeander," Holt, 243 . . ; 473 " Undaunted," The, 11 P. D. 46 ; 55 L. J. Ad. 24 ; 54 L. T. N. S. 542 ; 34 W. R. 680 ; 5 Asp. M. L. C. 580 200 " Underwriter," The. See The "Lake St. Clair" and The "Under- writer." " Union," The, 3 L. T. N. S. 280 84, 215 • Steamship Co. v. Owners of The " Aracan." See The " American " and The " Syria." "United Service," The, 8 P. D. 56 ; 5 Asp. Mar. Law Cas. 55 ; 52 L. J. Ad. 18 ; 48 L. T. N. S. 486 ; 31 W. R. 614 ; on app. 9 P. D. 3 ; 53 L. J. Ad. 1 ; 32 W. R. 505 ; 5 Asp. Mar. Law Cas. 170 ; 49 L. T. N. S. 701 200, 205, 524 " United States," The, 2 How. 210 ; 2 Mar. Law Cas. 0. S. 166 ; 12 L. T. N. S. 33 77, 93, 522 . 12L. T. N. S. 33 i 136 " Unity," The, Swab. Ad. 101 339, 357, 463, 464 " Urania," The, 1 Mar. Law Cas. 0. S. 156 ; 5 L. T. N. S. 402 ; 10 W. R. 97 316 Usher v. Lyon, 2 Price, 118 268 V. Vadala v. Lawes, 25 Q. B. D. 310 ; 62 L. T.'IST. S. 701 ; 63 L. T. N. S. 128 ; 38 W. R. 594 225 " Valleyo," The, Ad. Div. 27th April, 1887 62 " Vanderbilt," The, 6 Wall. 225 ' 356, 466 TAIil.K ()!•' CASES. Ivii TAOE Vaudcrplauk v. Miller, M. & M. 1G9 4'j7 " Vatidyk," The, 7 P. D. 42 ; 5 Asp.* M. L. C. 17 ; 17 L. T. N. S. 694 ....• 301, 302 "Velasquez," The, Owners of The " Velasquez " v. Briggs, L. R. 1 P. C. 494 ; 36 L. J. Ad. 19 : 16 L. T. N. S. 777 ; 16 W. R. 89 . . 238, 246 " Velocity," The, L. R. 3 P. C." 44 ; 39 L. J. Ad. 20 ; 21 L. T. N. S. 686 ; 18 W. R. 204 312. 343, 353, 3.}7, 42o, 427, 46G— 474 Velthasen v. Ormsby, 2 T. R. 315 209 Vennall r. Garner, 1 Cr. & M. 21 , 4 '"Venus," The, 1 Pritch. Ad. Dig. (ed. 1887) 1678 ; 2 M. L. C. 0. S. Dig. 522 26 •' Vera Cruz," The, No. 1 (infrinKcmeut of Regulations^ 9 P. D. 88 ; 53 L. J. Ad. 33 ; 51 L. T. N. S. 24 ; 32 W. R. 783 ; 5 A.sp. M. L. C. 254 . . . , 134, 144, 223, 318, 328 No. 2 (jurisdiction in rem), 9 P. D. 96 ; 5 Asp. M. L. C. 270; 53 L. J. 'Ad. 33 ; 51 L. T. N. S. 104 ; (H. L.), nom. Seward r. The " Vera Cruz," lOAp. Cas. 59; 54 L. J. Ad. 9 ; 52 L. T. N. S. 474 ; 33 W. R. 477 ; 5 Asp. M. L. C. 386 . .22, 43, 45, 4G, 58, 63, 65, 144, 214, 223, 318 ■ " Vernon," The, 1 W. Rob. 316 218, 238 " Vesta," The, "Times," Sept. 15th, 1879 258 . 7 P. D. 240 ; 51 L. J. Ad. 25 ; 46 L. T. N. S. 492 ; 30 W. R. 705 ; 4 Asp. M. L. C. 515 272, 275 "Vesuvius," The, and The " Savemake." See The " Savernake." " Vianna," The, Swab..Ad. 405 521 " Vicksburg," The, 7 Blatchf. 216 512 " Victor," The, Lush. 72 ; 29 L. J. Ad. 110 ; 2 L. T. N. S. 331 ... . 81, 87, 319 " Victor Covaceviteh," The, 10 P. D. 40 ; 54 L. J. Ad. 48 ; 52 L. T. N. S. 632 ; 5 Asp. M. L. C. 417 312 "Victoria," The, 3 W. Rob. 49 360, 362. 402, 404 Ir. Rep. Ad. 1 Eq. 336 261, 275 No. 1 (damage to cargo). 12 P. D. 105 ; 56 L. J. Ad. 75; 56 L. T. N. S. 499; 35 W. R. 291; 6 Asp. M. L. C. 120 82, 85 No. 2 (life claimants), 13 P. D. 125 ; 57 L. J. Ad. 103 ; 59 L. T. N. S. 728 ; 37 W. R. 62 ; 6 Asp. M. L. C. 376 . , ISO . and The " Keilawarra. " See Australian, &c. Co. v. Smith. Victorian Railway Commissioners r. Coultas, 1 3 App. Cas. 222 ; 57 L. J. P. C. 69;'58L. T. N. S. 390 ; 37 W. R. 129 110 " Vildosala," The, 4 Asp-. M. L. C. 228 ; 42 L. T. N. S. 96 314 " Villc du Havre," The, 7 Beued. 328 \ 499 " Vindomora," The, 14 P. D. 172 : 59 L. J. Ad. 8 ; 60 (7^ 1 ; 61 L. T. N. S. 655 ; 63 ib. 749 ; 38 W. R. 69 ; 6 Asp. M. L. C. 438 ; W. N. 1890, 212 ^ 353, 403 Violet V. Blague, Cro. Jac. 514 209 "Virgil," The, 2 W. Rob. 201 8 " Virginia Ehnuan," The, 7 Otto, 309 197. 286 " Virgo." The, 3 Asp. M. C. 285 ; 35 L. T. N. S. 519 : 25 W. R. 397. . 11. 24 7 Bencd. 495 479 .M. e Iviii TABLE OF CASES. PAGE " Vivar," The, 2 P. D. 29 ; 35 L. T. N. S. 782 ; 3 Asp. M. L. C. 308 ; 25 W. R. 379 ; ou app. ibid. 453 209, 304 " Vivid," The, Swab. Ad. 88 ; on app. uom. Churchward v. Palmer, 10 Moo. P. C. C. 472 ; 4 W. R. 755 39, 401 7 Not. of Cas. 127 406, 434, 472 • 1 A.sp. M. L. C. 601 ; 42 L. J. Ad. 57 ; 28 L. T. N. S. 375 502, 503, 507 "Volant," The, 1 W. Rob. 383; 1 Not. of Cas. 503. .. .87, 162,172,210 Br. & L. 321 319 " Volcano," The, 2 W. Rob. 337 102, 503, 605 " Voorwaarts," The, and The "Khedive," Stoomvaart, Sec. Co. v. Peninsular, &c. Co. (infringement of Regulations), 5 App. Cas. 876 ; 43 L. T. N. S. 610 ; 29 W. R. 173 ; 4 Asp. M. L. C. 360 ... . 3, 4, 19, 41_54, 63, 72, 342—349, 437—450, 480—484, 490, 493, 501 "Voorwaarts," The, and The "Khedive," Stoomvaart, &c. Co. v. Peninsular, &c. Co. (division of loss), 7 App. Cas. 795 ; 52 L. J. Ad. 1 ; 47 L. T. N. S. 198 ; 5 Asp. M. L. C. 360, 567 65, 94, 133—144, 162, 179, 217, 292 " Vortigem," The, Swa. 518 306 " Vrou Janetze," The, Ad. Ct. 2nd Feb. 1820 156 W. " W. A. Scholten," The, 13 P. D. 8 ; 57 L. J. Ad. 4 ; 58 L. T. N. S. 91 ; 36 W. R. 559 ; 6 Asp. M. L. C. 244 304 " TV. C. Redfield," The, 4 Bened. 227 430, 512 " W. T. Clark," The, 5 Bissel, 295 86 Wahlberg v. Young, 4 Asp. M. L. C. 27 ; 45 L. J. C. P. 783 ; 24 W. R. 847 176, 204, 321 Wakelin v. London & South Western Ry. Co., 12 App. Cas. 41 ; 56 L. J. Q. B. 229 ; 55 L. T. N. S. 709 ; 35 W. R. 141 22, 30 Walker v. Maitland, 5 B. & A. 171 289 Waltham v. Mulgar, Moo. 776 70, 93, 212 " Wanata," The, 4 Bened. 310 ; 5 Otto, 600 177, 380 "Wansfell," The, 1 Sp. E. & A. 271 40 "War Eagle," The, 6 Bissel, 364 183 " Warkworth," The, 9 P. D. 20 ; 53 L. J. Ad. 4 ; 32 W. R. 479 ; 49 L. T. N. S. 715 ; 5 Asp. M. L. C. 194 ; on app. 9 P. D. 145 ; 53 L. J. Ad. 65 ; 33 W. R. 112 ; 51 L. T. N. S. 558 ; 5 Asp. M. L. C. 326 11, 24, 169, 172, 175—177, 181, 242, 321, 337 " Warrior," The, L. R. 3 A. & E. 553 ; 27 L. T. N. S. 101 ; 21 W. R. 82 185, 360, 432, 492 "Warwick," The, 15 P. D. 189 ; 63 L. T. N. S. 561 326 " Washington," The, 5 Jur. 1067 134, 135, 139, 328 "Wasp," The, L. R. 1 A. & E. 367 ; 16 L. T. N. S. 854 ; 2 M. L. C. 0. S. 552 88 " Waterloo," The, 2 Dods. Ad. 433 91 Wayde v. Lady Carr, 2 Dow. & R. 255 466 "Webb," The, 14 Wall. 406 198, 206 Webster r. Manchester, Sheffield, &c. Ry. Co., W. N. (1884) 1 .... 306 TABLE OF CASES. Hx PAGE Wells V. Osmond, 2 Raym. 1011 92 " Wenoua," The, 19 Wall. 41 3^52 " Wesley," The, Lush. 26H 272 •' Westphalia," The, 4 Bened. 404 ; 1 Asp. M. L. C. 12 ; 24 L. T. N. S. 7o 406 "Wexford," The, 13 P. D. 10 ; 57 L. J. Ad. G ; o8 L. T. N. S. 28 ; 3G W. R. 560 ; 6 Asp. M. L. C. 244 116 " Wlieatshcaf," The, and The " Intrepide," 2 Mar. L. C. O. S. 292 ; licit, 210; 13L. T. N. S. 612 27, 85, 457 White V. Crisp, 10 Ex. 312 26,96 V. Dubinson, 14 Sim. 373 293 V. Phillips, 15 C. B. N. S. 245 ; 33 L. J. C. P. 33 ; 10 Jur. N. S. 425 ; 9 L. T. N. S. 388 96 Whitehall Transportation Co. v. New Jersey Steamboat Co., 51 New York (Sicker' s) Rep. 369 64 Whitney v. The Empire State, 1 Bened. 57 HI, 477, 511, 512 V/hitrid.c-c r. Dill, 23 How. 448 4C0, 500 "Wild Ranger," The, Lush. 553 ; 32 L. J. Ad. 49 ; 7 L. T. N. S. 725 ; 9 Jut. N. S. 134 162, 219 " Wilhelraina," The. See The " Willi amina." Wilkins r. Day, 12 Q. B. D. 110; 49 L. T. N. S. 399 ; 32W. R. 123.. 36 " Willard Saulsbury," The, 1 Pars, on Ship. (cd. 1869) 564 379 " Willem III.," The, L. R. 3 A. & E. 487 ; 25 L. T. N. S. 386 ... . 89 " WilUam," The, 4 Quebec L. R. 306 197 6 C. Rob. 316 257 ' ' William Frederick, ' ' The. See The ' ' Byfoged Christcnsen." " William Hutt," The, Lush. 25 311, 314 ■ 4 Mitch. Mar. Reg. 718 ; Lowndes on Coll. 187 525 " William Money," The, 2 Hag. 136 88 " William Lindsay," The, L. R. 5 P. C. 338 ; 29 L. T. N. S. 355 ; 22 W. R. 6 ; 2 Asp. M. L. C. 118 10, 24, 102, 505 " Williamina," The, 3 P. D. 97 119, 333 Williams v. Newton, 14 M. & W. 747 ; 15 L. J. Ex. 1 1 272 Willoughby v. Horridge, 12 C. B. 742 106 Wilson V. Canada Shipping Co. See The "Lake St. Clair " and The "Underwriter" Wilson v. Dickson, 2 B. & Aid. 2 162, 166, 172 V. Merry, L. R. 1 Sc. Ap. 326 109 r. Newport Dock Co., L. R. 1 Ex. 177 114, 121 Wilson Sons r. Owners of Cargoes; "Xantho," 11 P. D. 170; 12 App. Ca. 503 ; 55 L. J. Ad. 65 ; 56 ib. 116 ; 55 L. T. N. S. 203 ; 57 ib. 701 : 35 W. R. 23 ; 36 ib. 353 ; 6 Asp. M. L. C. 9, 207. . . . 283 " Winston," The, 8 P. D. 176 ; 52 L. J. Ad. 72 ; 49 L. T. N. S. 403 ; 31 W. R. 892 ; 5 Asp. M. L. C. 143 ; on app. 9 P. D. 85 ; 51 L. T. N. S. 183 : 53 L. J. Ad. 69 ; 5 Asp. M. L. C. 274. .237, 239, 244, 2i!2, 263, 331 " Wirrall," The, 3 W. Rob. 56 -197 Ix 'JABLE ()!•' CASES. PAGB " 'Wobtim Abbev," The, 3 Mar. Law Gas. 0. S. 210 ; 38 L. J. Ad. 28 ; 20 L. T. isr. S. 621 234, 506 Wood V. Smith. See The " City of Cambridge." Woodley v. Miehell, 11 Q. B. D. 47 ; 5 Asp. Mar Law Cas. 71 ; 48 L. T. N. S. 599 ; 31 W. R. 651 ; 52 L. J. Q. B. 325 283, 286 " Woodrop Sims," The, 2 Dods. Ad. 83 125, 136, 153, 156, 157 Wordsworth v. AVillan, 4 Esp. 273 466 Wright V. Lethbridge, 63 L. T. N. S. 572 100, 102 X. " Xantho," The. See Wilson Sons v. Owners of Cargo ex Xantbo. Xenos r. Fox, L. R. 4 C. P. 665 ; 38 L. J. C. P. 351 ; 19 L. T. N. S. 84 ; 17 W. R. 893 291 Y. Tates V. Hall, 1 T. R. 75 165 V. Whyte, 4 Bing. K C. 272 ; 7 L. J. C. P. 116 .... 123, 293, 295 " Yorkshiremau," The, 2 Hag. Ad. 30 (note) 118 '» Young Mechanic," 2 Curtis, 404 80 " Yourri," The, and The "Spearman," 10 App. Ca. 276 ; 53 L. T. N. S. 29 ; 5 Asp. M. L. C. 458 463 Z. "Zadok," The, 9 P. D. 114; 50 L. T. N. S. 69 ; 53 L. J. Ad. 72 ; 32 W. R. 1003 ; 50 L. T. N. S. 695 ; 5 Asp. Mar. Law Cas. 252. .32, 33, 399, 405, 433, 487, 496 "Zephyr," The, 2 Mar. Law Cas. O. S. 146; 11 L. T. N. S. 351 ; 12 W. R. 890 317, 318 " Zoe," The, 11 P. D. 72 ; 55 L. J. Ad. 52 ; 54 L. T. N. S. 879 ; 35 W. R. 61 ; 5 Asp. M. L. C. 583 178, 180 " ZoUverein," The, Swab. Ad. 96 ; 27 L. T. 160 ; 2 Jur. N. S. 429 . .215, 217, 516 Cases decided hy Courts of the United States of America arc cited from the following Reports: — Abbot, Admiralty (District Court) Reports. American Eepoets (all the Courts of last resort). Benedict, District Court Reports. Blatchfoed, Circuit Court Reports. Beown, Acbniralty Reports. Davis, Supreme Court Reports. Gallison, Circuit Court Reports. HowAED, Supreme Court Reports. Newbeeey, Admiralty (District Court) Reports. Olcott, Admiralty (District Court) Reports." Otto, Supreme Coiu-t Reports. Speague, Admiralty (District Court) Reports. Waee, District Court Repurts. Wallace, Supreme Court Reports. Waixace, Junior. Circuit Court Reports. THE LAW OP COLLISIONS AT SEA, CHAPTER L ^'EGLIGENCE. The mere fact that a .ship strikes or goes foul of and Collision iniures another creates no liability in herself, her owners, ^^ii'i^ii^o^ "D^'r?^ or those in charge of her. The assertion that one ship creates no " ran into " or " ran down " the other, often made in collision actions by witnesses on both sides, is a mere allegation of negligence, and in no way advances the case [a). So that damages may be recovered, negligence for which the owners or persons in charge of the ship sued are responsible must be proved. There is one case, but one case only, in which damages may be recovered without proof of negligence ; the case, namely, of un infringement by the defendant ship of one of the Statutory Regulations for Preventing Collisions at Sea which might by possi- bility have contributed to the collision. Here a rule of law {b) requires that the ship which has broken the law shall be deemed to be in fault for the collision. It excludes evidence directed to show that the infringement did not in fact contribute to the collision, and renders the consideration (rt) The James Watt, 2 W. Rob. (A) 35 & 36 Vict. c. 85, ». 17; see infra, pp. 38, .sry. M. NEGLIGENCE. Case of in- scrutable fault. What is netcli^ence. of tlie question of actual negligence unnecessar3^ The precise effect of this important enactment will be considered liereaf ter (c) . Where a ship, or each of the two ships, alleges (r/) negli- gence on the part of the other, and it is manifest that the collision was caused by fault somewhere, but the evidence does not satisfy the Coiu-t on which side the fault lies, no damages can be recovered, and each ship bears her own loss(r). The English law as to the inci- dence of loss in this case differs from that of some foreign countries, and also, it seems, from the general maritime law(/). In TJie A/bcrf Edu-(ir(]{(j), an action against a steamship for damage to a mooring dolphin, which fell over on being struck or pressed upon by the ship, was dismissed with costs, on tlie ground that mere contact with the dolphin did not constitute a cause of action, and that the damage to the dolphin was the result of its own weakness, and was not caused by any negligence on the part of the ship. Negligence is the failure to exercise that skill care and nerve which are ordinarily to be found in a competent seaman. "We are not to expect extraordinary skill or (c) Infra, pp. 38, seq. (d) Following a practice which is almost universal, the write" here and subsequently personifies the ship. Convenience and habit will, perhaps, be considered a sufficient ex'usc for the use of a phraseolotry which has sometimes proved mis- leading ; see infra, p. 7o. {>■) The Mani of Jnklnnd, 6 Not. of r!;)s. 240 ; The Cathrriiw of Dover, 2 Hag. Ad. Ho; The Laconia, 2 Moo. P. C. C. N. S. IGl ; Abbott on Shipping, r2th ed. 520 ; and see per Lord Wenslevdale, Morgan v. Sim, The London,' U Moo. P. C. C. 307, 312. But formerly the law was otherwise ; see infta, p. 152. (/) See Bell's Commentaries on the Law of Scotland (ed. 1870, by McLaren). I. 627 ; Bynkershoek, Qufe.st. Jur. Priv. C. 4, o. 18 ; Pothier, vol. 4, p. 444. There is no express authority for this state- ment as tu the pecidiarity of Eng- li.'^h law, and there are early de- cisions to the contrary ; see infra, p. 145. But no case is to be found in the books in which damages have bef^n recovered in a case of inscrutable fault, or in any case in wdiich negligence has not been proved against the other ship. As to the Roman and foreign law on the point, see infra, p. 68, and the note at the foot of Chapter VI. 1» 44 L. J. Ad. 49. OUDINAUV CARE KEQl IRKD. 'i extraordinary diligence, Lut that degree of skill, and that degree of diligence, which is generally to ho found in persons who discharge their duty " (//). In T/tc Dundee (/) Lord Stowell defined negligence as " a want of that atten- tion and vigilance which is due to the security of other vessels that are navigating the same seas, and which, if so far neglected as to become, however unintentionally, the cause of damage of any extent to such other vessels, the maritime law considers as a dereliction of hounden duty, entitling the sufferer to reparation in damages." In a recent case before the House of Lords, it was said that the duty of a seaman is " to take reasonable care and to use reasonable skill to prevent the ship from doing injury ;" and it was pointed out that much more skill is reasonably required from a person who takes charge of a ship than from one who drives a carriage (/>•) . So in the case of a collision between a ship being launched and another afloat, it was said by Butt, J., that under the circumstances the utmost possible precautions by those in charge of the launch were no more than reasonable (/). If a vessel by her own fault makes a collision so imnii- A wrong step nent that it cannot be avoided except by the extraordinary jitonVoVthe skill nerve or exertion on the part of the other ship, and a collision is not collision occiu's, it will be held to have been caused by the ° ° former, and she will be liable for the entire loss. In such a case, and in every case where a ship by her own negli- gence places another in sudden and great peril, the latter will not be held guilty of negligence because at the last moment she did something that contributed to the collision, or omitted to do something that might have avoided it (u/). {h) Per Dr. Lushington, T/ic Voorwaarfs a,n6. The K/iedive, o App. Thomas Pouw/landT/te Cuba, 2 Mar. Ca. 876, 890. This case is f re- La \v Cas. 0. S. 344. quently cited in the following pages (i) 1 Hag. Ad. 120. as I'he J'ooncadrl.s and 7Va' Jvhe- (k) Per Lord Blackburn, Stooin- dive. See also infra, p. 72. vaart Maatxhappi/ yitlerland v. JJl- (/) The George lioper, 49 L. T. rectors, i^-c. of the Peninsular and N. S. 185; 8 Jf. D. 119. Oriental Steam Xavigation Co., The [m) The Nor, 2 Asp. Mar. Law b2 NEGLIGENCE. And the same principle applies in all cases of sudden and great danger not caused by a man's own negligence. In such circumstances he is required to exhibit ordinary presence of mind and ordinary skill ; but it is manifest that in such a case he may do, or omit to do, something which may contribute to the collision, without thereby showing himself deficient in ordinary skill, care, or nerve. Such an act of omission is held not to be negligence (;?). Except -where It will, however, be seen hereafter that an arbitrary statutory pre- ^^^^ ^^ ^^'^ requires the courts to attribute fault to a ship sumption of ^jj^^ ];^as, evcu Under such circumstances of sudden and extraordinary peril, infringed one of the Statutory Regu- lations for preventing collisions that might by possibility have contributed to the collision, although those on board have not, in fact, been guilty of any negligent act or omission (o). Examples. The following cases illustrate the principle above men- tioned, that a wrong step taken in the agony of the colli- sion will not necessarily cause the ship to be held in fault for the collision. A sailing ship (/;) in a thick fog sighted another at so Cas. 264 ; The CM. Palmer and. The Larnax, infra ; The Fi/riis and The Smales, Holt, 40 ; The ElizabHh and The Lotus, 2 Mar. Law Cas. O. S. 238 ; The Sisters, 1 P. D. 117 ; The Byivell Castle, 4 P. D. 219 ; The William Frederick and The Byforjed Christensen, 4 App. Cas. GG9 ; Tlie Voorwaarts and The Khedive, 5 App. Ca. 876. Cf . also Clayards v. T)ethick, 12 Q. B. 439 ; and perl^ovA Ellen- borough, C..J., in Jones v. Boyce, 1 Stark. 493, 495 : " If I place a man in such a situation that he must adopt a perilous alternative (as jumping off a coach), I am respon- sible for the consequences." It has been often held by the Su- preme Court of the United States that a vessel which by her own fault cau.ses sudden peril to another can- not impute to tlie other as a fault a measure taken in extremis, although it was a wrong step, and but for it the collision would not have oc- curred. A mistake made in the agony of the collision is regarded as an error for which the vessel causing the peril is altogether re- sponsible: 1 he Nichols, 7 Wall. 656; The Carroll, 8 Wall. oOi ; The City of Paris, 'iW&W. 634; The luetic, 15 Wall. 676 ; The Favorita, 18 Wall. 598; The Falcon, 19WaU. 75; The Sea Gull, 23 Wall. 165. There are decisions of the French courts to the same effect : Abordage Nautique (Caumont), s.-s. 134. (w) The Sisters, 1 P. V>. 117; The Jcsmond and The Earl of Elgin, L. R. 4 P. C. 1, 7 ; The Mnrpesia, L. R. 4 P. C. 212 , Vennallx. Gar- ner, 1 Cr. & M. 21 ; The City of Antu-erp and The Friedrich, Inman V. Reek, L. R. 2 P. C. 25. («) Infra, p. 48. \p) The Marpesia, L. R. 4 P. C. 212. KX \MPI,KS. O eliort a distance tliat iu a minute, or less than a minute, the ships were in collision. Her helm was altered, but the head-sheets, whieli had just been let go, were not hauled aft, nor were the lee braces let go, so as to assist her head in paying off. It Avas held that, even if the collision could have been avoided by the measures suggested, the time was so short that there was no negligence in their omission. Where a steamship coming up the Thames at night passed a schooner, and when about 300 yards a-head of her took the ground and stopped, the schooner was held not to be in fault for a collision which followed, although possibly, if she had at once let go her anchor, she might have prevented the collision (•). But if a ship seeks to excuse herself for taking a wrong step, which, in fact, caused or contributed to the collision, upon the ground of sudden peril, she must show clearly that she was in no way responsible for the sudden peril (.s) . Upon the same jirinciple, if a ship by carrying wrong Misleading- lights, or by navigating iu an improper or unusual manner, ilfL^or other misleads or embarrasses another, she cannot attribute as a embarrassing fault to the latter any act which was the probable result of (v) The Klizabeth and The Adaliii, {s) See The Bywell Castle, 4 V. D. 3 Mar. Law Cas. O. S. 345. 219, and the cases cited above. The [>■) The C. M. Talmer and The 7>rtiiV/.l/wTw, Brown, Ad. 273 ; The Zaruax, 2 Asp. Mar. Law Cas. 94. EUzahelh Jenkins, o Dav. 614 6 NEGLIGENCE. Both ships must coTiqily with the Regulations. In ordinary cases no discretion as to complying with the Eegulations. lier own negligence {f) . So wliere a sTiip is hailed from another to take a particular course, and she obeys the hail, the other ship cannot be heard to say that the course was wrong, although, in fact, it caused the collision and was in violation of the Eegulations {ii). Where there is risk of collision, and the Statutory Regulations for preventing collisions require both the ships to alter their courses, or to take other measures to avoid collision, it is negligence in either ship not to take the prescribed step. One of them cannot excuse herself for disobeying the law upon the ground that there would have been no collision if the other had obeyed the law. In such a case she would be prevented from recovering more than half her loss by 36 & 37 Vict. c. 85, s. 17 {x) ; and, independently of the statute, a vessel, which, by infringing the Regulations, or by negligence in any other respect, contributes to a collision, is clearly in fault (//) . Failure to comply with the Regulations is always negli- gence, and, as will be seen below (;:) , it will in almost every case be held to be negligence contributing to the collision. It is sometimes contended on the part of a ship that has failed to comply with the Regulations, and is herself in fault, that the other ship is guilty of contributory negli- gence for not having departed from the Regulations (c/) . (t) The Rob Roy, 3 W. Rob. 190 ; The Scotia, 14 Wall. 170 ; Tlw Mary Eoimsell, 4 P. D. 204 ; 40 L. T. N. 8. 368. {u) See The Caroliis Rotchers, 3 Hag. Ad. 343, note. In this ('ase a ship close-hauled on the starboard tack hailed another close-hauled on the port tack to keep her luff. The latter did so, and a collision oc- curred. The first ship was held in fault. It is submitted that not- withstanding 36 & 37 Vict. c. 85, s. 17, the rule would be the same at the piesent day. It would pro- bably be held that, after such an intimation from the other ship of her intended course, a departure from the Regulations was necessary to avoid immediate danger (Art. 23). See also IFihon v. Canada Shipping Co., 2 App. Ca. 389 ; 2'he Lake 8t. Clair and The Under- writer, 13 Asp. M. L. C. 361 ; The James Watt, 2 W. Rob. 270 ; The Independence, 14 Moo. P. C. C. 103, 109; The Huntress, 2 Sprague, 61. {x) See below, p. 38. (//) See Tne America, 2 Otto, 432. (c) Infra, pp. 42, scq. [a) The Bijfiiijcd Christensen, 4 App. Ca. 669. In The Tasmania the INEVITABLE ACCIDENT. Such a contention will seldom succeed. It will be seen below (/;) that a construction has been put upon 36 & 37 Vict, c, 8-5, s. 17, and Aiiiclo 23 of the liegulations, which takes away all discretion from persons in charge of ships as to complying or not complying with a llegulation, where it is possible tliat the collision may be avoided by obeying it. In 'Tf/c J)ci/f/re.s{r), it was held by the Court of Appeal that where by departing from the Regulations there is a chance of avoiding a collision that is otherwise inevitable, a vessel will not be held in fault for taking advantage of that chance; but, on the other hand, the circumstances must be very exceptional to make her guilty of contributory negligence if she elects to adhere to the liegulations. A collision which could not by any care or skill have Inevitatle been prevented is accurately described as an inevitable accident. But the terra " ino\dtable accident " in Admi- ralty is commonly used in a wider sense to describe a collision which could not have been prevented by ordinary care, in other Avords, a collision which occurs without negligence in either ship. The phrase is not a happy one, for a collision which might have been avoided by the exercise of extraordinary skill and care, is not, in fact, inevitable. Its use, however, in the looser sense, is well established. In The Eu)'opa{(l), Dr. Lushington states that inevit- able accident is " where one vessel doing a lawful act without any intention of harm, and using proper precau- tions, unfortunately happens to run into another vessel." Again, " to constitute inevitable accident, it is necessary that the occurrence should have taken place in such a manner as not to have been capable of being prevented by ordinary skill and ordinary prudence. We are not to contention, which had not been of Lords (15 Ap. Ca. 223). See also raised before Butt, J., succeeded The liuiligate, ti2 L. T. N. S. 841. in the Court of Appeal, 14 P. D. (6) Infra, p. 48. 53 ; but the decdsiou of that Court (c) U P. D. 16. was in turn reversed by the House (d) 14 Jur. 627, 629. 8 NEGLIGENCE. A collision may be caused by neffligence though in- evitable for some time before it occurs. Burden of proving in- evitable accident. expect extraordinary skill or extraordinary diligence, but that degree of skill and that degree of diligence which is generally to he found in persons who discharge their duty"(r/). More recently, the Privy Coimeil, adopting the language of Dr. Lushington, defined inevitable acci- dent to be " that which a party charged with an offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill " {(^. From the above considerations it is evident that to sustain the plea of " inevitable accident " it is not enough to show merely that the collision was inevitable at the moment of, or even for some moments before, its occur- rence (./'). The weight of a ship and her momentum is so great that her rudder, and even her engines (in the ease of a steamship) are frequently powerless to avert a collision for some time before the ships come together. It is not enough for a ship to show that, as soon as the necessity for taking measures to avoid collisions were perceived, all that could be done was done. The question remains whether j)recautions should not have been taken earlier. When two ships are shown to have been in a position in which a collision was inevitable, the question is, by whose fault, if there was fault, did the vessels get into such a position? (g). Thus, if a vessel is proceeding at too great a rate of speed she cannot be heard to allege "inevitable accident" (//). Wliere a collision is the result of inevitable accident the burden of proving that it was so does not in the first (d) The Thomas Powell and The Cuba, 2 Mar. Law Cas. 0. S. 344. See also The Tlato and The Perse- verance, Holt, 262 ; and The Mayhey and The Cooper, 14 Wall. 204, 215, for a similar statement by the Su- preme Court of the United States. {e) Per Sir J. Colville, The Mar- pesia, L. R. 4 P. C. 212, 220, citing from The Virr/il, 2 W. Rob. 201. See also The ' Lochibo, 3 W. Rob. 310, 318. (/) See The TJhla, 3 Mar. Law Cas. O. S. 148. {(J) See The Independenee , Maddox v. I'ishcr, 14 Moo. P. C. C. 103, 109; The Despatch, ibid. 83 ; The Pennsyl- vania, 3 Mar. Law Cas. O. S. 477 ; The America, 2 Otto, 432. (//) See jyf *• Dr. Lushington, The Juliet Erskine, 6 Not. of Cas. 633. INEVITABLE ACCIDENT. 9 instance attach to tlio sliip alleging it. Pmt where a prima facie case of negligence is made out, then it lies on the ship alleging ine\ital)lo accident to prove it {i) . It seems that a vessel in default for not having lights, Vessel in- or for not complying with the Regulations, cannot, at least Kegu'iationr where such non-compliance hy possibility might have ^aunot plead contributed to the collision, successfully plead inevitable accident, accident (/.). But such a defence may be good where the circumstances of the case made a departure from the Eegulations necessary, or where her inability to take the proper measures was caused by no fault of her own (/). A collision may be an inevitable accident so far as the Collision ship sued is concerned, altliough it was caused by fault far "scoicerns elsewhere ; as in the case of a ship which is thrown against t'^c ship sued, another by the swell of a passing steamship, or by a third ship coming foul of her (w). Where a ship is unable to take the proper measures to Disabled ship. avoid a collision owing to her being disabled, or for some reason for which she is not res2)onsible, it is the duty of the other ship to avoid her if she can. But a collision occur- ring in consequence of her disabled state will be held to be an inevitable accident, if the other vessel was ignorant of it, and was not in fault for not being aware of it, or for not keeping out of the way {)>). The Aimo, close-hauled on the starboard tack, saw the red light of The AmeJi i, a vessel close-hauled on the port tack, a little on her port bow. The Aimo kept her course. The Amelia, having lost her head sails in a previous collision, was unable to bear up, and a collision occurred. It w^as held to be an inevitable accident (o). ((•) The Bolim, 3 Not. of Cas. 208 ; 12-44 ; The Maclcnd, Stuart's V. A.l. The Marpesia, L. R. 4 P. C. 212; Rep. (Canada) 140. and see wfra, p. 30. [n) The John Buddie, 5 Xot. of {/•) 36 & 37 Vict. c. 85, s. 17 ; see Cas. 387. infra, pp. 38, seq. (n) The Aimo and The Jme'ia, 2 (/) See hifrn, pp. ,50, .')0. Asp. Mar. Law Cas. 9G ; and see (ill) See I Tarsoiis on Ship. (ed. The Venus, 1 Pritch. Ad. Dijr. 129. 1869), h'io\ The Sisters, 1 P. D. As to a vessel disabled by her own 117 ; The Hibernia, 4 .Tur. N. S. fault, sec infra, p. 25. 10 NEGLIGENCE. Instances of inevitable accident. lu the following cases the comets have held that the collisions were the result of inevitable accident. It must, however, be pointed out again that the question before the Com't in all these cases was, not whether the collision was inevitable, but whether it could have been avoided by ordinary care. A steamer rounding-to in the Thames on a dark night against a strong flood tide under a starboard helm, with her head to tlie southward, was seen by a brig coming down. Notwithstanding that all that could be done was done by both vessels, a collision occurred. It was held to be a case of inevitable accident. The Court said that if the steamer had put her helm to starboard with a view to bring up after seeing the brig she would have been to blame (/>). A ship, which had made fast by order of the port autho- rity to a private buoy, was held not to be in fault for a collision caused by the parting of the band round the buoy [q) ; and a collision caused by the parting of the band was held to be an inevitable accident. In the absence of evidence of negligence on the part of the crew, the jamming of the cable round the windlass, when the anchor was let go, was held to be an inevitable accident (r). The parting of a cable in a gale of wind (s), and of moorings in calm weather [t), has been held to be an inevitable accident. But if there is negligence in not letting go an anchor, or in not having an anchor ready to let go when the vessel is acbift, she cannot sustain the defence of inevitable accident iit). [p) The Shaunm, 1 W. Rob. 463. {q) The William Lindsay, L. II. 5 P. C. 338. (r) The William Lindsay, supra; The Leerless, Lui-h. 30. But see The Apamemnnv, 1 Quebec, L. R. 333, as to windlasH carryiiifr away. («) The London, 1 Mar. Law Cas. 0. S. 398 ; Br. & L. 82. (0 The Ambassador, Ad. Ct., Feb. 12th, 1876, cited iu The Pladda, 2 P. D. 34, 37. [u) The Tladdn, 2 P. D. 34 ; The Xepler, ibid. 40 ; TIte City of Peking, 14 Ap. Cas. 40 (cLaiii table not bent). As to such a plea by a ship INEVITAin,E ACCIDENT. 11 AVliere a collision oceurrod in consequence of the break- ing of part of the steering gear, there being a latent defect in the metal, it was lield to be an inevitable accident (x). But if the gear is manifestly insufficient or weak, the defence of inevitable accident cannot be sustained (//). Where a ship, A., at anchor in the Thames, was run into by another, B., and was, without faidt on her own part, driven by B. against a third ship, C, it was held that, so far as A. was concerned, the collision between her and C. was an inevitable accident (:;). A ship which had been ashore on a sand, was driving over it, and came into collision with another brought up in deep water to leeward of the sand. To have let go her anchor before she was clear of the sand would have been dangerous to herself, and without letting go while on the saud she could not keep clear of the ship at anchor. A C'olli^ion which followed was held to be inevitable (a). A dumb barge in the Thames, driving with the tide, came into collision with a steamer going up against the ebb at the rate of two knots. There was evidence that the barge could not have been seen sooner than she was seen. In the absence of evidence of negligence on the part of the steamer, the collision was held to be an inevitable accident {b). "Where two ships, by no fault of their own, suddenly find themselves in a position in which a collision is imminent, and one of them omits to execute a manoeuvre which possibly might have averted the collision, she will not necessarily be held in fault for not having taken the which has given another a foul cases of steam steering- gear failing berth, 8ee T/ie Hccrel, 20 L. T. N. S. to act. 670. (;) n,' Hihernia, 4 Jur. X. S. (x) The Virgo, 3 Asp. Mar. Law 1241. Cas. 285. {a) The Thontlo/, 7 Jur. 659. {y) The M. M. Caleb, 10 Bhitchf. The Bitckhurnt, 6 V. D. 152, is a 467 ; The IFaikuorth, 9 P. D. 20, very similar rase. -145; infra, ji. 170 ; The Indus, 12 (h) The Swallow, 3 Asp. Mar. p. D. 40, Both those la.st were Law Cas. 371. 12 NEGLIGENCE. measure suggested. "Wliero two large sailing-ships, one in the act of going about, and the other going free, sighted each other in a dense fog at a distance of less than 300 yards, and a collision occurred in less than a minute, it was held that the ship in stays was not in fault for not having hauled aft her head sheets to assist her helm, although if .she had done so the collision might have been averted. The collision was held to be a case of inevitable acci- dent (r). In TJie Resolution (d), Sir J. Marriott held that a colli- sion caused by " showring weather, the darkness of the night, and the small distance of the two ships and short- ness of time in discovering each other, being close," was an inevitable accident. Srd qu. American In the following American cases the defence of inevit- cases. ^1^-^g accident has been sustained. A vessel in the open sea overtook another at night, the darkness being so great that she could not see the vessel ahead in time to avoid her(?). A sailing-ship in a narrow channel being suddenly compelled to let go her anchor to save herself from going ashore, in consequence of the wind failing, a steamship close astern unavoidably ran into her (./'). A large steamer was entering a harbour by a course that was not the usual one, but which was a course she had a right to go. As she was rounding the stern of a hulk, she suddenly saw and ran into a schooner which the hulk had prevented her seeing before. The schooner, which had just cast off from her tug, was setting her sails and drifting with the tide in a helpless condition. The collision was held by the Supreme Com"t to have been inevitable [g) . [c) The Marpesia, L. R. 4 P. C. 550. 557. 212. (/) The FJectra, 6 Bened. 189. [d) Marsd. Ad. Ca. 332; infra, {g) The Java, 14 Wall. 189; The p. 152. 2\oia Scotia and I'he Qaeliec, 1 Que- [e) The Morning Light, 2 Wall. bee, L. R. 1. INEVITAHLE ACCIDENT. 1 3 But where a schooner in a leaky condition, in order to avoid sinking in deep water, cast off from a wliarf along- side which she was lying, and before she was got under command drove against another vessel, it was held that the collision was not an inevitable accident (//). In the case of a ship improperly attempting to pass another ashore in a narrow channel, it was held, in America, that in attemping to pass clear of the ship ashore, she did so at her own peril (/). In this country it has been held that a ship driven from lier moorings by another which came foul of her in a galo of wind, could not escape liability to a third ship against Avhich she drove, she having omitted to let go a second anchor [k) . If a vessel engaged in rendering salvage service to Negligence in another negligently' runs into the vessel she is assisting, she is liable for the damage ; but she does not therebj' forfeit her right to a sum which has been previously agreed upon as remuneration for the salvage service, unless the negligence is very gross. In such cases the Court regards error or negligence in the salvor less severely than in ordinary cases of collision (/). If the salvor, witliout negligence on her own part, is injured in a collision with the ship she is assisting, caused by negligence of the latter, she can recover for her loss (///). It is an implied term of tlie ordinary towage contract, Or a tug. that each vessel shall be conducted with proper care and ekill. The general rule is, that the tug is bound to obey the orders of the tow ; but both as between themselves and as regards other ships the tug and her tow are each under the ordinary obligation to show proper skill and care in (/j) Sherman v. Jfott, 5 Bened. (/) T/ie C. S. Butler and The 372. Baltic, L. R. 4 A. & E. 178. See (i) The Merrimac, 14 Wall. 199. also The Thetis, 3 Mar. Law Cas. (A) The riadda, 2 P. D. 34 ; and 0. S. 357 ; Slecois v. The S. Jr. Bee The City of Tcking, 14 Ap. Cas. Downs and The Storm, Newb. Ad. 40, as to having a second anchor 458. ready to let go. (w) The Mud Hopper, 40 L. T. N. S. 462. 14 NEGLIGKKCi:. avoiding collision. Their resj^ective duties and liabilities will be considered in a subsequent chapter {u). Negligence There is sometimes difficulty in determining whether causing coi- , , , ^ "^ ^ , lision. negligence of which a ship is proved to have been guilty at or about the time of the collision, or in some way con- nected with the collision, is negligence contributing to the collision. The general rule is that a wrongdoer is liable for all the reasonable consequences of his negligence. Whether a collision which occurs under circumstances brought about by previous negligence can be said to have been caused by that negligence, must be determined by the particular circumstances of the case. A passenger on board T//e BncJielor was injured by an anchor on board that vessel which was caused to fall on him by a collision for which The Sons of iJie Thames was in fault. In an action by the passenger against the owners of The Sons of the Thames, Pollock, C.B., left it to the juiy to say whether there was negligence on the part of the crew of The Bachelor in stowing the anchor so that it fell on the plaintiff, and whether there was negligence on the plaintiff's part in being in the jiart of tbe ship where the anchor was stowed. The verdict was for the plaintiff ; the jiuy finding that there was no negligence on his part, or on the part of the crew of The Bachelor. A rule nisi for a new trial which was obtained on the ground that the verdict was against the weight of the evidence was discharged. In discharging the rule. Pollock, C.B., said, with regard to the general law, that if the negligence of the plaintiff did not in any degree contribute to the immediate cause of the accident, that negligence ought not to be set up as a defence to the action. And he doubted whether a person, who is guilty of negligence, is respon- sible for all the consequences which might under any circumstances arise, and in respect of mischief which could, (m) Infra, p. 243. NKf; LICENCE CAUSIXO THE LOSS. 15 by no possibility, liave been foreseen, and which no reason- able person would have anticipated (o). The prinoi])le here enunciated must be applied with Negliprcnco caution. Where the negligence is an immediate cause of iof."^bi|t jiot the loss, it is material in an action to recover damages for ^^^ collision, that loss, although it is in no way a cause of the collision in which the loss occurred. " The cause of action in collision cases is not merely the fact of the ships having come into impact with one another, for that by itself is no cause of action, but that damage, in the sense of injury, was caused to the property of the plaintiffs by reason of that collision" (^;). Thus where a collision is caused entirely by the negligence of ship A., and there ■would have been no damage to either ship but for an im- proper act of B., both ships are in fault, and the owners of each are liable for half {q) the loss suffered by the other. It is DO answer to the claim of a plaintiff, whose negligence caused the collision, for the defendant, whose negligence caused the loss, to say : True it is, there would have been no loss but for my improper act ; but you are the person wdio caused the loss, for if your ship had not been im- properly navigated there would have been no collision and no loss. Unless the negligence of the one ship would, but for the negligence of the other, have caused no loss, the former ship is liable at least for half the loss of the other. In T/if Jlarr/arrf (/-), before the Cornet of Appeal, a dumb T/ie Margaret. barge by her own negligent navigation came into collision with a schooner fast to a proper mooring buoy in the Thames. The schooner was wholly free from blame in respect of the collision, but her anchor, which was hanging from her hawse pipe, with the stock above the water, (o) Greenland v. Chaplin, 5 Ex. Lindlev, L. J., The Bernina, 12 243. This ai^tion and CattUn v. P. D. 58, 88. Hills, 8 0. B. 123, arose out of the [q] As to the t\\\p of division of same collision. loss when both ships are in fault, (p) I'lr Brett, L. J. The Mar- see below, pp. 125 — 145. garet, 6 P. D. 76. And see per (») 6 P. D. 76. 16 NEGLIGENCE. Causa proxima non remoia spectatur. pierced and sank tlie barge. This was an Improper position for the anchor, and contrary to a bye-law made under a local Act in force in the Thames. But for the improper position of the schooner's anchor the barge would have suffered no injury. It was held that both craft were in fault ; and that the schooner was liable for half the loss of the barge. In the Court below it had been held that the barge could not recover anything, she being alone in fault for the collision. This decision was varied by the Court of Appeal on the ground above stated — namely, that though the negligence of the schooner did not contribute to the collision, it did contribute to the cause of action, namely, the loss to the owners of the barge [s). On the other hand, the maxim causa proxima non remota spectatur applies to distinguish negligence for the conse- quences of which a defendant is liable from that which is merely collateral and immaterial upon the question of liability {t). Negligence such as will attract liability cannot be established merely by showing that, but for a previous improper act of the defendant, the collision would not have occurred. The act complained of " must have some proper connection, as a cause, "with the damage which followed, as its effect "(/(). Whether this proper connection exists between the act complained of and the loss is, it seems, a question of fact, and ordinarily a ques- tion for the jury {x). The question as to what are the consequences of a negli- gent or wrongful act for which the wrongdoer is hable was much discussed in the case of Clark v. Chambers [y). («) The Scotia, 63 L. T. N. S. 324 ; Sills V. Brown, 9 Car. & P. 601, and The Gipsy Kiiiy, 2 W. Rob. 537, so far as they are inconsistent •with The Marijnret, would not, it seems, be now followed. [t) See per Selborne, C, 6 App. Cas. 219 ; and Lord Blackburn, xb. p. 22G. (m) Ver Selborne, C, ?/ii mp. {£) See Taffy. Wurman, 2 C. B. N. S. 740; f3 C. B. N. S. 573; Milwaukee Rail. Co. v. Kcllog, 4 Otto, 469. (//) 3 Q. B. D. 327 ; see the rule afhrmatively stated by the Master of the Rolls in lie London, ^c. Rail- xrinj and Trustees of Gowcr^s Walk Schools, 24 Q. B. D. 326, at p. 329. NEGLIGENCE CAUSING THE LOSS. 17 Tlie nile accepted by the Court (::) was, that an action ■svould not lie where the loss, although arising from an unlawful or negligent act of the defendant, did not imme- diately flow from it, and was not the reasonable, probable, or likely result of it. In Sj)ai(j/if V. Tcdca4le {a), the question was whether the owners of a ship in tow which had negligently permitted her tug to go too close to a bank, were prevented by tlie doctrine of contributory negligence from recovering from the owners of the tug damages for injury sustained by the subsequent fault of the tug in altering her course so as to put the ship ashore on a bank. It was held that, though those in charge of the tow had negligently allowed the tug to take the tow too close to the bank, yet, since the tug could with proper care, notwithstanding the negligence of the tow, have kept the tow clear of the bank, and had by an improper alteration of the helm caused the tow to go ashore, the tug was liable. The question whether a particular act of negligence was No difference a cause of the loss, so as to make the person charged with rules^oHaw negligence responsible for the loss, must, it would seem, andAdmiralty be answered in the same way, whether it is the act of a negligence, plaintiff or of a defendant ; Avhether the negligence of otlier parties contributed to the loss or not ; and whether the action is at common law or in Admiralty (/;). "There is no difference between the rules of law and the rules of Admiralty to this extent, that where any one transgresses a navigation rule, whether it is a statutory rule or whether it is a rule that is imposed by common sense, what may be called the common law, and thereby an accident happens of which that transgression is the cause, he is to blame, {z) Laid down by Pollock, C. B., Eail. Co., L. R. 9 Q. B. 263. in Grvathmd v. Chaplhi, 5 Ex. 243, {a) 6 App. Cas. 217. 248 ; supra, p. 14 ; and by the Ex- (i) Sec jjrr Campbell, C, The ohequcvChnmhcr in S/iarpvJ'owen, Friends, 4 Moo. P. C. C. 314; per L. R. 7 C. P. 2o3. See also Laurence Lord Blackburn, Cayzer v. Carron V. Jenkins, L. R. 8 Q. B. 274 ; Co., 9 App. Cas. 873, 880. Sncesbi/ v. Lancashire and Yorkshire M. C ncglifj'euce 18 NEGLIGENCE. and those who are injured by the accident, if they them- selves are not parties causing the accident, may recover both at law and in Admiralty" (r). The learned lord, in a subsequent part of his judgment in the same case (d), states that the only case which seems to point to there being any difference between the rules of law and Admiralty as to what is negligence causing the loss is T/ic F(')ihain{e), in which there are expressions of Lord Romilly to the effect that infringement of a statutory rule of navigation is to be taken as a cause of the collision, imless the person charged proves the contrary. Those expressions, he points out, may well apply to such an infringement as that in T/ie Fenhani (absence of lights), but are not to be extended to every infringement of every rule of navigation. Contributorj' It has been suggested that the class of cases of which Dacies v. Maim is the best known example, have no appli- cation in Admiralty ; and there are cases which appear to give some support to the contention. The facts of Davies v. Mann {/), the well-known "donkey case," were shortly these : — The owner of a donkey, which had been negli- gently left hobbled and unguarded on a highway, sued the defendant, by the negligence of whose servant in driving along the highway at too rapid a speed the donkey was run over and injured. It was held that the donkey-owner could recover, his negligence notwithstanding. The sugges- tion is, that in a case of collision between ships, negligence, such as that of the donkey-owner in Davies v. Mann, would render the shipowner liable, altliough no collision would have occurred if the other vessel had been navigated with ordinary care. The FenJiam {()) and Haij v. Le Ncre {h) have been cited as authorities to this effect. In The Fenham the facts were these : — A steamship in the North Sea, after sun-down on a dusky evening in November, struck a brig which was not carrying lights as required by the Regula- (c) Per Lord Blackburn, 9 App. (/) 10 M. & W. 5-lG. Cas. 880. {g) L. R. 3 P. C. 212. {d) P. 882. (h) 2 Shaw's Scotch App. Cas. \e) L. Pv. 3 P. C. 212. 395. CONTRIBUTORY NEGLIGENCE. 19 tions of 1863. In the absence of proof to the contrary, the Privy Council held that the absence of lights caused the collision. In delivering judgment Lord Ilomilly thus stated the rule as to proof in such cases : — " If it is proved that any vessel has not shown lights, the burden lies on her to show that the non-compliance with the Regulations was not the cause of the collision." In ITaj/ V. Le Nere [h), a vessel brought up at night in an improper l^lace and with no light exhibited was run into by another ship. It w'as held that the vessel at anchor, as well as the other vessel, was in fault. In both these cases the negli- gence of the plaintiff (carrying no light, and bringing up in an improper place) was not unlike tliat of the donkey- owner in Davies v. Mann, and it was contended in TJie Fenham that with ordinary care the defendant could have avoided the collision, notwithstanding the negligence of the plaintiff in carrying no lights. In both cases the legal consequence of the negligence was different from that in DavicH V. Mann. Again, in an Irish case (/) it was doubted whether in Admiralty the doctrine of Davies v. Ma)ni had any application. But it is clear that there is no difference between the rules of law and of Admiralty (A-) as to wdiat amounts to negligence causing collision ; and that, before a vessel can be held to be in fault for a collision, negligence causing or contributing to the collision must be proved. Thus, in 21ie Margaret {I), n vessel infringed a statutory rule of navi- gation, and was in that respect guilty of negligence ; and without that negligence, other circumstances being the same, the collision would not have happened ; yet it was held that this negligence was not a cause of the colKsion. (/() 2 Shaw's Scotch Ap.Cas. 395. Alicdive (5 App. Cas. 876, 892), it (i) T/ie Meteor, Ir. Rep. 9 Eq. was assumed by Lord Blackburn 6G7. that Dalies v. Mann applied in {k) See per Lord Blackburn, Admiralty. Cai/zer v. Carron Co., 9 App. Cas. {() 9 App. Cas. 873. 873, 882 {The 3Iargaret). In The c2 ^O' NEGLIGENCE. The decision in such a case will be the same, with regard to the liability of the ship in question, whether the other ship is in fault or not. In The Margaret the one ship was held to be in fault, because with ordinary care she could have avoided a collision, notwithstanding the negligence of the other ; and it was for this reason that the negligence of the latter was held not to be a cause of the collision. The Lord Saumarez {/>/), an early case, is to the same effect as The Margaret. There a vessel recovered full damages, though in a fog she was carrying too great a press of sail, and was proceeding at too great a rate of speed. The decision proceeded upon the same grounds — that the defendant could with ordinary care have avoided the collision, notwithstanding the negligence of the plaintiff. Ila// V. Le Neve and The Fenham are not inconsistent with The Margaret and The Lord Saumarez. The facts in those cases were not analogous to those in Bavies v. Mann. They differed in this — that the negligence of the plaintiffs in the former cases was such that the defendants could not ■with ordinary care have avoided its consequences ; whereas in Da vies v. Mann the defendant could with ordinary care have avoided the donkey (»). Confusion has been caused by the language used in some of the cases with regard to contributory negligence. In Radley v. London i^* North- Western Railicay Co. (o), it is stated by Lord Penzance that, " The plaintiff in an action for negligence cannot succeed, if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident." But " though the plaintiff may have been guilty of negli- gence, and although that negligence may in fact have con- [m) 6 Not. of Cas. 600 ; cf. TJtc Co., 8 Ex. 733, are cases with re- Arffo, Swab. 402; infra, p. 243; gard to absence of lights. In the The Sxvanland, 2 Sp. E. & A. 107. former, the ship without lights was (w) Dowell V. General Steam Navi- held in fault ; in the latter, not. fjation Co., 5 E. & B. 195 ; and (o) 1 App. Cas. 754. Morrison v. General Steam Navigation CONTJIIBUTORY NEGLIGENCE. 21 tributod ill iho accident^ yet if the defendant could in the result by exercise of ordinary care and diligence have avoided the mischief which happened, tlie plaintiff's neg- ligence will not excuse him," i.e. the defendant. Dan'cs v. Mann and Tifjf v. WavDuut (/>) are cited as establishing this. On the other hand, in DowcU v. General Steam Navigation Co. (q), Lord Campbell, C. J., said — " There" (in Daries v. JIann) " although without the negligence of the plaintiff the accident would not have happened, the negligence ^9 not supposed to Jiave contributed to the accident within the rule upon this subject ; and if the accident might have been avoided by the exercise of ordinary care and skill on the part of the defendant, to his gross negli- gence it is entirely ascribed, he, and he only, proximately causing the loss." It is not easy to reconcile these views with regard to the character of the negligence of the plaintiff in Davies v. JIai/n. The question whether a specified act of negligence is a cause of the accident is a question of fact and not of law(r). Davies v. Mann and the cases following it seem to show that even where, as matter of fact, an act of negligence of A. did con- tribute to the accident, the other party (B.) Avill (as defendant) be liable for the whole loss, or (as plaintiff) will be unable to recover, if he could with ordinary care have avoided the accident, notwithstanding the negligence of A. (.s). The difficulty may be put in another way. Did Davies V. Mann decide that, assuming contributory negligence in the plaintiff, he could recover notwithstanding ; or that, though there was contributory negligence in fact, there was none in law ? liadley v. London Sf JV. W. Rail. Co. { p) 6 C. B. N. S. -573 ; see tho {>•) See per LonI Blackbum, 9 jiulijment of Cresswell, J., 26 L. J. App. Cas. 879. But see contra, per C. i". 2«3, 267. Cf. also per Dr. Williams, J., Tuff v. Jf'tirman, 2 Lushington in The Argo, Swab. C. B. N. S. 740, 7-58. 462 ; i»fra, p. 243. (.v) Cf. The Arcjo, Swab. 462 ; (y) 5 E. i: B. 195. wjra, p. 243. 22 NEGLIGENCE. points to the former as the correct view of tlie case ; The Margaret {t) looks the other way. There Lord Blackburn appears to have considered that if the plaintiff's neghgence did in fact contribute to the collision he would be liable ; and that in Davm v. Mann there was no contributory neg- ligence. But the dilhculty is rather one of words than of substance ; for, with perhaps one exception, the cases agree in this, that negligence in one party is immaterial, if by ordinary care the other could, notwithstanding that negli- gence, have avoided the accident (?0 . The exception men- tioned above is The Vera Cruz (No. 1) (rr), when before Butt, J. In that case Butt, J., appears to have questioned the dictum of Lord Penzance quoted on a former page (y), to the effect stated in the last paragraph. If the law be as there stated it would, he thouglit, put an end to the doctrine of contributory negligence altogether ; since, in every case where there is contributory negligence on the part of the plaintiff, there is, ex hypothesis negligence (/. e. want of " ordinary care and diligence ") on the part of the defen- dant. It is submitted that what was meant by Lord Penzance was ordinary care and diligence on the part of the defendant "in the result," i.e. taking into considera- tion the negligence of the plaintiff and the circumstances existing after or by reason of it; or, as expressed by Lord Blackburn in another case, " proper care, subse- quently exerted " (~). This was the view of Lord Watson in Wahelin v. Loudon and South Western Rail. Co. {a). " Contributory neghgence," he said, " consists in the (t) See also Hpaigld v. Tcdcastle, (,r) 9 P. D. 88. The decision in C App. Cas. 217, 219, per Lord this case was ineffectual, the House Blackburn. of Lords having subsequently held [u) Cf. Pollock on Torts, 374 that the Court had no jurisdiction. seq., where the true view is ex- (y) P. 20. plained: Contributory negligence (s) Spaiffht v. Tcdcastle, 6 App. of the plaintiff does not prevent Cas. 217, 226 ; see also per Lord him from recovering ; he does not Watson, The Marfjaret, 9 App. Cas. recover because the lu-gligenco of 873, 886 ; per Wightman, J., Tuff the defendant was not the proxi- v. irarmnn, 5 C. B. N. S. 573 ; mate cause of the loss. ^;c>' Lord Campbell, supra, p. 21. {a) 12 Ajjp. Cas. 41. CONTRIBUTORY NEGLIGENCE. 23 absence of that ordinary care whicli a sentient being ought reasonably to have taken for his own safety. . . . If by the use of ordinary caution he might have avoided the injury, and did not, he is not entitled to recover damages." The result of the cases, therefore, seems to be that — (1) a ship, A., may recover full damages against another, B., though she (A.) has been guilty of negligence contri- buting to the collision, provided B. could with ordinary care, exerted up to the moment of the collision, have avoided it ; (2) A. can recover nothing, though B. was guilty of negligence contributing to the collision, if A. by ordinary care, exerted up to the moment of the collision, could have avoided it ; (3) A. may recover half her loss, though she has been guilty of negligence contributing to the collision and rendering the collision unavoidable except by extraordinary care on B.'s part, if B. has been guilty of negligence contributing to the collision and rendering it unavoidable except by extraordinary care on A.'s part ; and (4) in the last ease B. may also recover half her loss [b). Where a collision is caused by negligence in those on Ne.a-lift-ence of board both ships, and the negligence in ship A. is negli- pilo "bi-i'n'^^^^ gence of her officers or crew for which her o\^Tiers are ^"t° operation liable, while the negligence in ship B. is negligence of a division of compulsory pilot for which her owners are not liable, the ^°f' ^yH^-^° -^^^ question arises whether the owners of B. are prevented by also in fault, the doctrine of contributory negligence, or by the practice of the Court of Admiralty, from recovering more than half their loss. It seems to be settled that they are entitled to recover half their loss, without deducting any- thing in respect of the loss caused to the other ship by the fault of the pilot ; but that they are entitled to recover no (h) Cf. prr Lindley, L. J., T/ic Lord Eshcr, IM. R., ibid. p. 61, for Berni)ia, 12 P. D. oS, 89; and^xr suimuarics of the law. 24 NEGLIGENCE. more than half theii- loss (c). Thus the fault of the pilot affects the ship to some extent ; whether it affects the ship in a case where she is not herself in collision, so as to prevent her owners from recovering damages against the owners of another ship by whose negligence she is injured, is not clear (rf). Notwithstanding a decision to the con- trary (e), the better opinion seems to be that she is not so affected. Negligence The question whether a particular act of negligence, not loss, or"merely directly causing the collision, but connected with it, is collateral. negligence contributing to the collision, seldom arises in collision cases. It has, however, occasionally been dis- cussed, and it will be convenient here to indicate gene- rally the form in which it may occur. Defective If a ship is negligently sent to sea in a defective or equipmen . inefficient state as regards her hull or equipment, and a collision occurs, which probably would not have occurred but for her defective condition, the collision will be held to have been caused by the negligence of her owners. Thus a collision caused by the giving way or inefficiency of the steering gear (/), the parting of chain cable or moorings (fj), the inefficiency of the tug (A), improper trim such as to render her unmanageable and dangerous, may be held to be caused by the negligence of her owners in permitting her to be navigated in a condition dangerous to other ships. In such cases it is, of course, open to the owners to show that the defect in the gear was latent (/), or that they (c) See The Sector, 8 P. D. 218, Dig. 3rded. 1412 ; The M. M. Caleb, 222. 10 Blatchf . 467. See also The Euro- (d) See Spaight v. Tedcastle, 6 pean, 10 P. D. 99, steam steering App. CaH. 217, and obsei-vations of gear "taking charge." Lord Blackburn (p. 223) on The (g) See The Wiliiam Lindsay, L. Energy, L. R. 3 A. & E. 48 ; see E. 5 P. C. 338. also Budman v. Dublin Port and (h) The Ocean Wave, Marshall v. Bocks Board, Ir. Rep. 7 C. L. 518. Moran, L. R. 3 P. C. 205 ; The (e) The Energy, supra. Belgic, 2 P. D. 57, note ; The Julia, (/) The Virgo, 3 Asp. Mar. Law Lush. 224. Cas. 285 ; The Warkworth, 9 P. D. {i) The Virgo, 3 Asp. Mar. Law 20 ; The Livia, 1 Asp. Mar. Law Cas. 285. Cas. 204 ; The Peru, 1 Pritch. Ad. CAUSING THE COLLISION, OR MERELY COLLATERAL. 25 took reasonable care to send the ship to sea in a safe and efficient state (/.) ; and if they satisfy the Court that such was the case they will not be liable. If a ship is by her own fault disabled or unmanageable, Ship disabled and a collision occurs in consequence, the question arises manat^eable whether she is to be held in fault for the collision ; in ^y ^^^^ ^^^ other words, whether her original negligence is negligence contributing to the collision. The cases upon the point are conflicting. Where a ship by her own negligence got ashore, and in coming off unavoidably did damage, it was held that her owners were liable (/). So where a vessel having lost her lights in a collision with one ship was afterwards in collision witli another ship, it appears to have been the opinion of the Court that, if the first collision was caused by her own fault and the second collision was caused by the absence of proper lights, she must be held to be in fault for the second collision {in). On the other hand, where a vessel was sunk in the Thames in a collision caused by her own negligence, and another vessel six hours afterwards struck on the wreck and was in juiced, it was held by the Court of Appeal, in the absence of proof of negligence subsequent to the first collision, that her owners were not liable for tlie second collision. " It seems clear to me," said Brett, L.J., " that no greater liability can exist against the defendants than if their steamship had sunk without negligence" (»). There is no doubt that both in the case of a ship disabled, and a ship sunk, whetlier by her own previous negligence or not, special and additional care and precautions are required on the part of those in charge to avoid doing injury to other ships (o). But that {/c) Moffatt V. Batcman, L. K. 3 such as to render a dcci.siou uiDon P. C. 115. the point unnecessary. {I) Lords Bailiff Jurats of Eomney [») The Douglas, 7 P. D. 151, 160. Marsh v. Corporation of the Tri>iitij In this case Lords Bailiff' Jurats of House, L. R. 5 Ex. 204 ; ibid. 7 Ex. liomrieij Marsh v. Corporation of the 247. Trinity House does not appear to (w) The lijobinharn, 2 Asp. Mar. have been cited. Law Cas. 213. The facts -were (o) See Seccombe y. JTood, 2 'M.oo. 26 NEGLIGENCE. a ship sunk or disabled in a collision caused by her own negligence should afterwards, and without having been guilty of any fui'ther negligence, be held liable for a sub- sequent and distinct collision, would seem to be contrary to the principle, above stated, that a wrongdoer is liable only for the reasonable consequences of his negligence (7;). It may happen that two or more collisions are so imme- diately and directly the result of one negligent act that the wrongdoer wall be liable for the damage done in each colKsion, though after the first collision the others were inevitable, and though, but for the first collision, the others w^ould not have happened {q). Tims a ship by her own negligence adrift in a crowded dock or harbour would, it is submitted, be liable for all the damage done by her in successive collisions with other craft before she was brought up and secured. In such a case it would be immaterial that, after the first collision, the others were inevitable, or that, but for the first collision, the others would not have happened. The reasonable consequence of sending a ship adrift under such circumstances is that she will strike and in j ure other craft to leeward. Three or more If a collision occurs between two ships, A. and B., by cated.^^^" the fault of one of them, and A. or B., or both A. and B., w^hilst in collision, or in consequence of the collision, drive against and injm-e a third ship, C, C. can recover against the ship in fault for the first collision. But the ship that fouls her is not liable unless she was in fault either for the first or the second collision (r). If two ships, A. and B., & Rob. 290 ; Brown v. MnUct, 5 and partly from stress of weather, C. B. 599 ; White V. Crisp, 10 Ex. it Avas held that the cause of her Z\2-' Kidmn v. M' Arthur, 5 Sess. loss was perils of the sea, and not Cas.' 4th Ser. (Rennie), 936 ; The unseaworthiness. Doufflas, ubi supra. See further (/?) Such a case occurred in The ' as to the duty of those in charg-o of Creadon, o An]). M. C. 585, which sunken ships, infra, pp. 96, :56I. came before the Court on limitation ( p) In JJadqeon v. Fembroke, L. of liability. R 9 Q. B. 581 (an insurance case), (/) The Venus, 1 Pritch. Ad. Dig. wiiere a vessel went ashore partly 3rd ed. 1678; S.C. nom. The Lyra because she leaked and became and I'he Venus, 2 Mar. Law Cas. waterlogged and unmanageable, O. S. Dig. 522 ; ThcJfibernia, 4 Jur. THREE OR MORE SHIPS IMPLICATED. 27 are both in fiiult for a collision between one of them and a third shij), C, C. can proceed in Admiralty against either A, or 13., or she can proceed against both of them. It seems that she can recover the whole of her loss against one of them {n). If C. is in tow of A. or B. the case is different ; for the ship in tow is generally responsible for the faidt of her tug {t). Where by the neghgent navigation of one ship a colli- Damajre, but sion occurs between two others, or another ship is damaged, ''" ^''lli^io"- either by collision or in any other way, the owners of the ship in fault are liable at law, and the ship, it seems, is liable in Admiralty {u). Thus, a steamship that sank another craft by the swell raised by her excessive speed was held liable [x). Where, in order to avoid a collision with A., made imminent by A.'s fault, a tug, B., was com- pelled to cast off her tow, C, and C. went ashore, it was held that C. could recover against A. {//). In order to avoid A. lying ashore in a fairway without a light, B. was obliged to put herself ashore ; it was held that B. could recover against A. (z). The value of an anchor and chain slipped to avoid collision, made imminent by the other ship's fault, has been recovered in Admiralty (in America) and at law {a). In The Seaton {h) two steamships were proceeding on ^Vlteration of N. S. 1244; The Sisters, 1 P. D. D. 117; Liaford v. Zarffc, 5 C. & 117; The jVoxci/, Ahhot, 7'S. P. 421; The Xiobe, 13 P. D. 55 (s) The Venus, nbi sitpra. In The (the action appears to have been in Milan, Lush. 388, the OA^Tiers of re)ii). cargo on board one of two ships, [x) The Batavicr, 1 Sp. E. &. A. both of which were in fault, re- 378 ; 9 Moo. P. C. C. 286 ; Lttx- covered only lialf their loss against ford v. Large, nbi supra. the other ship. In The Bernina, 12 (;/) The Wheatshcuf, uhi supra. P. D. 58 ; 13 App. Cas. 1, this [z) The Industrie, ubi supra. point was left open. As to the {a) The Perkins, 2 Mar. Law liability of joint wrongdoers at Cas. 0. S. Dig. 548 ; Majoribanks law, seep. 103. v. Boyd, Times, 11th Dec. 1823, {t) See below, Ch. VIII. The Almora's cable fouled The [u) The Wheatshiaf, 2 Mar. Law AsteWs when getting under way Cas. O. S. 292 ; The Industrie, L. in the Hooghly, and 'The Astell H. 3 A. & E. 303 ; The Energy, L. slipped. R. 3 A. & E, 48 ; The Ststers, 1 P. (b) 9 P. D. 1. 28 NEGLIGENCE. course causing parallel couTses, one on tlie quarter of the other and over- " m5on taking her. The sternmost ship altered her course, when thi-ee miles off the ship ahead, so as to make her course converge with that of the other and bring ahout risk of collision. After this she never altered her course, and struck the ship ahead. The leading ship appears either to have done nothing until she was struck, or to have taken a course which was clearly wrong. The overtaking ship was held solely in fault (c). Whether In common law actions juries have sometimes been per- ?hf Pontiff is mitted to take a so-called " equitable " view of the circum- to be taken stauccs of the caso ; and, where tliere have been faults on S^esSmatiig both sides, to award a smaller sum for damages than they damages. would have awarded had there been no fault on the part of the plaintiff. Thus, in Fiaisin v. Mitchell {d), the owner of a brig that had been in collision with a sloop was sued by the owner of the latter, the claim being for 500/. damages. There does not appear to have been any dispute as to the amount of the loss, but the jury found a verdict for the plaintiff, with damages 250/. In answer to a question from the judge (Tindal, C. J.), liow they had made up their verdict, the foreman said that there had been faults on both sides. The defendant contended that this was in effect a verdict in his favour ; but it was upheld as a verdict in favoiu' of the plaintiff for the smaller sum, 250/. This, and another (e) common law case to the same effect, cannot be treated as authorities for the proposition that negligence of the plaintiff which did not either wholly or in part cause the loss is material upon the question of (c) Qh. whether in this case the R. 33G ; 3 Man. & G. 59 {infra). leading sliip was not also in fault. The latter report does not agree It would seem that, with ordinary with the former as to the reasons care, she coidd have avoided the given hy the jury for their verdict, consequences of the defendants' See some remarks of Sir J. Patte- negligence. See s?^pra, pp. 18—23. son on this case in Netherlmids Id) % C & P. 613. Steamboat Co. v. Styles, 9 Moo. P. {e) Smith V. 'iJobson, 3 Scott, N. C. 286, 297. DAMAGES. 29 damages. Is is wholly immaterial, and the rule is so stated by Pollock, C. B., in Greenland v. Ch'ipUn (/). Again, in an action to recover damages for the sinking of a loaded barge, it appeared that two steamships had passed the barge shortly before she sank, and that she was sunk by the swell raised by one or botli of them. The steamship that passed first was the larger of the two, and raised the greater swell ; the second belonged to the defendants. The loss on the barge and her cargo was 80/. The jmy found a verdict for the plaintiff, damages 20/., with the remark that they did not think the blame was attributable to the defendants alone, and that the barge was improperly loaded. A motion to enter the verdict for the defendants was dismissed. Erskine, J., after remarking that, although the swell of the defendants' steamship pro- bably would not, but for the swell of the other steamsliip, have caused the damage, yet strictly the defendants were liable for the whole damage, added : " The jury, however, taking an equitable view of the facts, evidently thought it not fair to make the defendants pay for an injmy which was only in part attributable to them ; " and he appears to have considered that the jury were not wrong in giving a smaller sum for damages than the proved amount of the loss(i7). Closely connected with the question, whether a specific 'Wh&t can be act of negligence caused the loss, is the question, whether damages, a particular item of loss can be recovered as damages caused by the negligent act. The same principle applies in either case — that the wrongdoer is liable for all the reasonable consequences of his negligence. The cases connected with the question as to the quantum of damages will be con- sidered in a subsequent chapter {li). Where, as has sometimes happened, one ship is wilfully Wilful injury and maliciously (/) driven against another, the wrongdoer *° '^ ^ "P" {/) 5 Ex. 243. (/») Infra, p. 110. (j) See note {e), supra. (i) For uu instance of such a case 30 NEGLIGENCE. Proof of negligence. Burden of proof. would probaLly be held liable for the entire loss, notwith- standing negligence in the other ship in not avoiding the collision. To enable the plaintiff in a collision action to recover damages, he must prove affirmatively that liis loss was caused by the negligence of the defendant or of some person for whose acts he is liable. The general rule was thus stated by Lord Wensleydale (/) : " The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales, and does not satisfy the Court that it was occasioned by the negligence or default of the other party, he cannot succeed." So in the case then before the Court, it being proved that the plaintiff ship had no light, the inference was that, but for the absence of the light, the collision probably would not have occurred, and the plaintiff failed to recover {k) . The plaintiff must therefore make out at least a prima fade case. The burden of proof lies on him so far (/). But it does not follow that it lies on him throughout the whole case. Having made out a prima facie case of negli- gence on the part of the defendant, the burden of proof is shifted, and the defendant will be liable unless he proves that his negligence in no way contributed to the loss (m). see L. R. 1 A. & E. 64 ; The Ida, Lush. 6. (i) See Morff an V.Sim, The London, 11 Moo. P. C. C. 307, 312. See Harris v. Anderson, 14 C. B. N. S. 499, for a case whore the plaintiff failed through absence of Buch proof ; and cp. Wakelin v. L. and /V. W. Hail. Co., 12 App. Cas. 41. (k) In The Fenham, L. R. 3 P. C. 212, a similar presumption arose. See the remarks of Lord Blackburn on this case, Cayzer v. Carron Co., 9 App. Cas. 873, 882. (/!) The Bolina, 3 Not. of Cas. 208, 210 ; The Carron, 1 Sp. E. & A. 91 ; The London, 11 Moo. P. C. C. 307 ; The Marpcsia, L. R. 4 P. C. 212; The Benmore, L. E. 4 A. & E. 132 ; The Abraham. 28 L. T. N. S. 775 ; The Albert Edward, 44 L. J. Ad. 49. [m) The Ligo, 2 Hag. Ad. 356, 360 ; The Sisters, 1 P. I). 117 ; The City of Antwerp and TIcc Friedrich, L. R. 2 P. C. 25 ; Cayzer v. Carron PROOF OF NEGLIGENCK. 31 " Where certain inferences of fact have been established by numerous cases, they become to a great extent very nearly of the same authority as if they were propositions of law " (n). This is notably the case in collision actions. In the not infrequent case of a collision between a ship under way and another at anchor, provided there was no negligence of the latter in respect of her lights or place of anchoring, the burden (o) is upon the other ship to show that she was not in fault {/>). When a vessel under steam runs down a ship at her moorings in broad daylight, that fact is by itself pn'md facie evidence of fault {q). And the rule seems to be the same in the case of a fishing boat fast to her nets (r), a ship in stays, hove to (-s), or otherwise not under command, and, without negligence on her own part, unable to keep out of the way. It has been pointed out in America by the Supreme Court that a ship in tow in collision with another tow is in a wholly different position, as regards the burden of proof of negligence in one or both tugs, from that of a ship at anchor suing another under way (t). Where two ships are approaching each other so as to Where one involve risk of collision, the law (n) usually requires one of required "to keep out of tlie way. Co. {TJicMarf/arci), 9 A-pi).Cas. 873. of Fcl;i»g, 14 App. Cas. 40, 43. See Daniel v. Metropolitan Jiailuai/, See also Urt/. v. Cavendish, I. R. L. R. 3 C. P. 216 ; ibid. 591, as to 8 C. L. 178, where a cabdriver was what is sufficient evidence of ncgli- convicted of manslaug-htcr for run- gcnce ; S. C. i/>id. o H. L. 45. ning- over a woman without further (w) Per Mellish, L.J., L. R. 9 proof of negligence. Ch. 713 (with reference to proof of (;) 27ii; Culumbua, 1 Pritch. Ad. damage ixi actions to restrain nui- Dig-, ed. 1887, 239 ; The Tiro sances). tiisters, ibid. 248; The Bottle Imp, (o) See The Indus, 12 P. D. 46, 28 L. T. N. S. 286. as to how this burden may be dis- (•-) The Eleanor and The Alma, charged. 2 Mar. Law Cas. 0. S. 240. But {p) The Bothnia, Lush. 52 ; The see The London, 6 Not. of Cas. 29 ; Telegraph, Valentine v. Cloiigh, 1 'The Jiosalie, b F.J). 'lid, in hoth oi Sp. E. & A. 427 ; The Otter, L. R. which cases the ships hove-to were 4 A. & E. 203 ; The Annot Li/le, held to be in fault. 1 1 P. D. 1 14 ; The Bearer, 2 Bcned. (<) The L. P. Dayton, 13 Dav. 337. 118. and The Baltic, ibid. 452, are («) See the Regulations for Pre- American cases to the same ctfect. venting Collisions at Sea, Arts. 14, {q) Per Lord Watson, The City 16, 17, 20, 22, infra. 32 NEGLIGENCE. tliem to keep out of the way and tlie other to keep her course. If a collision occurs between two such ships there is, it is submitted, no presumption that the ship required to keep out of the way is in fault {v) ; for the duty of the other ship to keep her course is no less stringent than that of the former ship, and until she proves that she did keep her course the fact of the collision is no evidence of negli- gence in the ship required to keep out of the way. But upon such proof being given, a presumption of fault in the ship required to keep out of the way arises, and unless she proves circumstances rebutting this presumption she will be held in fault without proof of any specific act of negligence on her part {x). Though in clear weather, and under ordinary circum- stances, the presumption is that a steamship is able to keep out of the way of a sailing ship, it may happen that by no fault of her own she is not able to do so. In such a case no presumption of negligence on the part of the steamship will arise. In a fog, for example, a sailing-ship has no right to rely upon an approaching steamship, which she cannot see, being able to keep out of her way. It is the duty of the sailing-ship, under such circumstances, to be in readiness to act herself ; and, if she simply stands on her course and does nothing until the collision occurs, she may ■WTietlior not be held in fault (//). hearing a iog- rpj^ rjucstion oftcu ariscs whether credible evidence from hom raises a l presumption people on board a shij), A., that they were listening but of negligence. (f) See per Westbuiy, C, The By the German and Dutch Codes, Citi/ of Antwerp, L. R. 2 P. C. 25 ; if a ship sinks after collision before infra, p. 4 '51. reaching port, the presumption is (x) Hee the following American tluit she was lost by the collision : cases: — The Carroll, 8 Wall. 302, see German Comm. Code, Art. 739; 304 ; The Scotia, 14 "Wall. 170, 181 ; Comm. Code of Holland, Art. 539. Kew York, ^-c. Mail Co. v. JinmhaU, Y>y the Maritime Code of Riga, the 21 How. 372, 385. The French presumption was against a ship Courts adopt highly artificial j)re- without a light : 4 BLack Book of sumptions as to which ship is in the Admiralty (Sir T. Twiss's ed.), fault- see Les Codes Annotees 373, note. (Sirey et Gilbert), Art. 407, C. C. (y) SeeTAeZ«^oA-,9P.D. 114,118. PROOF oi- ni:gligen( !•:. 33 heard no fog-liorn or wlilstlo from ship J3., which was in fact in the neighbourhood of A. for some minutes, and subsequently came into collision with her, amounts to proof that no horn or whistle was sounded on board B. 8uch evidence frequently has to be weighed against equally credible evidence from 1j., that the horn or whistle was properly sounded on board B. The atmo- spheric conditions under which sounds are readily trans- mitted are peculiar ; the attention of scientific men has been directed to the subject only in recent years, and the subject is at present imperfectly understood (~). The Courts are therefore unwilling to hold that negli- gence is necessarily to be inferred from the not hearing a fog-signal which is proved to have been sounded in the vicinity. It has recently been held that in such a case as that above suggested the evidence from both ships may be true, and that whilst, on the one hand, the evidence of A. will not necessarily prove that proper signals were not made by B., the evidence from B. will not prove that those on board A. were negligent in not hearing them (a) . A ship is not one of those things dangerous in them- Defective ship selves, which entail upon their owners the responsibility of ^^ equipmtut. {z) Professor TyndaU(" Sound," Loudon: Longmans, Green i: Co., ISS'6) has arrived at the following conclusions, ba»ed upon elaborate experiments at .sea and on shore in the neighbuurhoudof the tog-syren at the South Eorelaud: — (1) that the condition most unfavourable for the transmission of sound is "water in a vaporous form mingled with the air, &o as to render it turbid and flocculent. Tnis acour74, j'P- -ii^J, seij. Sir J. Douglas, in his evidence be- fore the Committee on electrical communication between lightships and the shore, IS^T, states that the most powerful syren under certain conditions is not rehable beyond one mile ; and tluit hot sun is bad for .suund. He also states— a fact often doubted in Court— that he can tell within two degrees the di- rection trom which a log signal at sea comes. (a) s^ee per Sir J. Hanneu iu T/ie Elysla, 4 Asp. Mar. Law Cas. 64U ; The Zadok, i> P. D. 114, 118. ]) 3i NEGLIGENCE. innu-ing safety (b). Eut the law casts iipon the ship- owner the duty of using reasonable rare to ensure that his ship, when she sails and while she is under way, is in a condition in which she may be navigated mth safety to other ships. If she damages another ship in consequence of the giving way or inefficiency of her gear or equipment, a prima facie case of negligence arises. The presumption of negligence may, however, he rebutted by showing that the defect was latent, that reasonable care was in fact used to put and keep her in good condition, or that the giving way of the gear was due to stress of weather or other unavoidable cause {<■). In these cases the principle of Scoff v. London and Sf. Kafherine''s Dock Co. (d) applies. It was there held that " where the thing" (goods suspended over the pavement, which fell and injured the plaintiff) " is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of ex- planation by the defendant, that the accident arose from want of care." In Moffaft v. Bafcman (e), it was held that the principle of Scoff v. Lojidon and St. Kafhcrine's Dock Co. did not enable a person, who was injured by being thrown out of a vehicle, to recover damages without affir- mative proof of negligence on the part of the defendant. " There is nothing more usual than for accidents to happen (*) Infra, p. 72. (c) See p. 11, above. {d) 3 H. & C. o9G ; Byrne v. Hoodie, 2 H. & C. 722; 33 L. J. Ex. 13. Of the former case Willes, J., 8aid(L. R. 2 C. P. 11): "There the defendants had in their possf^e- sion, and under their control, some- thing which waH dangf rous unless reasonable piecautions were taken to prevent injury to third persons." It would seem that these remarks apjjly to the owners of ships. {e) L. R 3 P. C. 115; Ifanzoni V. iJofif/Ias, 6 Q. B. D. 145, is a very similar case. The question as to what is prima facie proof of negligence was much discussed in that case, and also in Kearney v. London, Brighton and South Coast Rail. Co., L. R. 5 Q. B. 411 ; ib. 6 Q. B. 759 ; 39 L. J. Q. B. 200 ; ib. 40 Q. B. 285; Daniel v. Mefropoli- tan Rail. Co., L. R. 3 C. P. 216 ; ib. 591 ; ib. 5 11. L. 45. PROOF OF NEGLIGENCE. 35 in driving without any want of care or skill on the part of the driver"; and therefore no 'prbna facie presumption of negligence having been raised (this was the opinion of the Privy Council), it was held that afhrmative evidence of negligence was necessary. In this case the kingbolt of the carriage, being defective, had broken, whereupon the horses bolted, and the plaintiff was thrown out. It was proved that the carriage was examined by a blacksmith every three months ; and that the defendant, the owner, had not himself examined it before starting on the day of the accident. It was held that there was no negligence on the part of the owner in this respect. A vessel under way in the daytime, or on a clear night, Collision be- which runs into another at anchor or stationary in the uuderway'^ water is prima facie in fault. And although a ship is and another brought up in an improper place, another running into her may be held in fault. " It is the bounden duty of a vessel under way, whether the vessel at anchor be properly or improperly anchored, to avoid, if it be possible, with safety to herself, any collision whatever" (./'). In The Indus (g), a case of collision between a steamship under way and a lightship, the only evidence on behalf of the lightship being that the collision happened without negligence on her part, it was suggested on behalf of the steamship that that evidence was consistent, infer alia, with a case of inevitable accident, and that the collit^ion might have been caused by her steam-steering gear failing to act ; but, in the absence of evidence that this actually occurred, it was held by the Court of Appeal that there was a prima facie case of negligence against the steamship which had not been displaced, and accordingly that she was in fault. Even if a ship is brought up in the fairway of a public navigable channel, so as to create a nuisance, a vessel which (/) Per Dr. Lushington in The v. Zc Xevc, 2 Shaw's (Scotch) App. J«<«tur, 2 W.Rob. 4U7; The Hit r a, Cas. byn. 1 Pritch. Ad. Dig. 3rd ed. 289 ; The (y) 12 P. D. 46. Marcia Tri/wit, 2 Sprague, 17 ; H(J>/ 1)2 36 XEGMGENCE. by ordinary care couLl have passed clear will be beld in fault for a collision with lier (//). It Wi )uld seem that a vessel being launched and going into collision with another at anchor in the wake of the launching ways mu-it ba in faalt. Bit in TIip C ichapool [I) , where the ship at anchor had obstinately refused to be towed out of the way, she was held to be solely to blame. Where a sailing ship was lost with all hands in a colli- sion with a steamship, the steamship was held in fault upon the facts stated in her own pleadings, and with no further proof on the part of the sailing ship than the evidence of a person on board a third ship who had seen the sailing shij)'s lights burning some time before the collision (k). It is not enough to prove that the other ship omitted to do something that would have prevented the collision, or that she did something without which the collision would not have occurred. It must be proved that the omission or ai^t complained of was negligent. If the plaintitf ship has herself infringed the Regulations, or has been guilty of negligence which might have contributed to the colli- sion, the burden is on her to show that the collision was not caused entirely by her own fault. Burden of When One ship alleges want of lights or of a proper pMcuii'i^ljri.r ^°*^^ *^^^' ^^ insufficient moorings, or any such negligence thekiiuwie lf?e on board the other as it is impossible or diffijulr for her to of the i^erson t ^- i • t i i i • it, •, charged. jjrove by direct evidence, the burden is on the latter, as it is peculiarly in her power, to prove that her lights were sufhcient, or that there was no such negligence (/). " The [h] This Beems to follow from highway on land, see Harris v. the decision in Mayor, ^-c. of Col- Mobbs, 3 Ex. D. 268 ; IVtlkins v. chrster v. Brooke, 7 Q. B. 339. As JJay, 12 Q. B. D. 110. to the right to bring up iu a public {i) 7 P. D. 217. navigable channel, Fee Anonymous \k) The Aleppo, 35 L. J. Ad. 9. ai>,e, 1 Campb. 516, note. As to (/) The Hw (inland, 2 Sp. E. .fe A. the liability for damages caused 167 ; The John Umieii aud The by an unLiwful obstruftion of a William. Tell, 13 L. T. N. S. 413. PKOOF OF NEGLIGENX'E. 37 Lurden oi' juvjof should under all circumstancps be thrown on those who have a peculiar knowledge of the bubject and peculiar means of ^'roving it which do not belong to the other party " [»i). A ship that negligently compels another to alter her Shipnegli- course, and to go into collision with a third ship, or to [lut [jj^'^ioss'^to**' herself ashore, and thereby suffer damage, is liable, both another at law and in Admiralty, to the injured ship, and also to wrontrd. er is th<> third shi]i, if she suffers loss ; and not the less so ""^ ht-rselt in _ ^ ' , collision. because she is not herself in coUis on [u). Many of the innumerable acts and omissions which cause Specific acts collision have been the subject of decision in the courts °^ neijliiience. with reference to the question of negligence. Infringement of the Regulations for preventing collisions at sea, careless- ness, want of look out, and disregard of the practice of seamen, and of the ordinary rules of seamanship, are amongst the most frequent instances of negligence causing collision. The cases dealing with specific acts of negli- geni-e, both infringement of the Begulations for preventing collisions at sea, and neglect of the ordinary practice of seamen, are considered in a subsequent Chapter ^Chapter XIV. i; the cases as to the ordinary practice of seamen being collected under Art. 24, which expressly refers to the necessity of observing such rules of seamanship. (;«) The Swanland, 2 Sp. A. & E. Indusfrie, L. R. 3 A. & E. 303 ; 107, 109. 7/ie Batanir, 1 ISp. E. & A. 378 ; 9 («) The Sisters, 1 P. D. 117; The Moo. P. C. C. 2«tJ. ( '38 ) CHAPTER II. STATUTORY PRESUMPTION OF FAULT. Statutory presumption of fault iu case of in- frinjremcnt of the Regula- tious. 36 k 37 Vict. c. 85, 8. 17. It lias been already stated that under certain circum- stances an arbitrary rule of law requires the courts to hold a ship in fault for collision, although no negligence on her part contributing to the collision is proved. And it will be seen below that this rule applies, not only where negli- gence is not proved, but where it did not exist, and where those in charge of the ship were, as regards negligence, absolutely free from blame. The circumstances which bring this stringent, not to say harsh, enactment into operation, are as follows : — First, where, on the part of the ship sued, there has been an infringement of any of the Statutory Regulations for Preventing Collisions at Sea, which might by possibility have contributed to the colli- sion ; and, secondly, where the ship sued did not stand by to assist the other with which she had been in collision. The decisions upon the first of these enactments are so much more numerous and important than those illustrating the second, that it will be convenient to reverse the order in which they occur in the statute (36 & 37 Vict. c. 85, ss. 16, 17), and to consider the section of the Act (sect. 17) relating to infringement of the Regulations before that (sect. 16) which deals with failure to stand by. By '30 & 37 Vict. c. 85, s. 17, it is enacted as follows : — " If, in any case of collision, it is proved to the Court before which the case is tried that any of the Eegulations for pre- venting collision contained in or made under the Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by HISTORY OF LEGIST, \TION. 39 which such Regulation has been infringed shall be deemed to bo in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the Eegulation necessary." To understand the effect of this enactment it will be History of necessary to refer to previous legislation upon the subject, u^'^^'th^"^ By 14 & 15 Vict. c. 79, s. 28, and afterwards by 17 & 18 subject ..f Viet. c. 1U4, s. 298, it was enacted, in effect, that if a ofSr™* collision was occasioned by the non-observance of any of ^"^^.^ °*. the rules as to lights or navigation contained in or made ° under those Acts, the owner of the ship by which the rule was infringed should recover no damages for injury to his ship, unless it was j)roved that the departure from the rule was necessary {a) . The effect of these enactments was to abrogate the rule of the Admiralty, that a wrong-doing vessel shall recover half her loss if the other ship is also in fault, in the case of a vessel which had unnecessarily infringed the statutory rules. In each case the question had to be tried whether the infringement was negligence contributing to the collision. In Tuff'Y. Warman [b) and other cases {c) it was held, upon the construction of these {a) The sections ran as follows : any case of collision it appears to — 14 k ]5 Vict. c. 79, s. 28: "If the Court before which the case is in any case of collision between tried that such collision was occa- two or more vessels it appear that sioned by the non-observauce of such collision was occasioned by any rule, &c. . . . the owner of the non-observance of either of the the ship by which such rule has foregoing rules with respect to the been infringed shall not be entitled passing of steamers, or" (the rules to recover any recompense what- as to ships' lights made under the ever for any damage sustained by powers of the Act) ..." the such shiji m such collision, unless owner of the \es.-el by which any it is shown to the satisfaction of such itilc has been infringed, shall the Court that the cinxunstances not be entitled to rtM over any re- of the case made a departure from compense whatever for any damage the rule necessary." Under the sustained by such vessel in such latter Act, I'ltc Juliana, Sw. 20, collision, iinless it appears to the was decided. Court before which the case is tried [b) 2 C. B. N. S. 740; 5 C. B. that the circumstances of the case N. S. 573. were such ns to justify a dejiarture (c) Morrison v. General Steam fr.im the rule," ^c. Ihe subse- ]S'aiiffatio»Cu.,'8Y.-si.'i-6\i\ TheVnid, quent Act, 17 & 18 Vict. c. 104,- 10 Moo. P. C. C. 472; The Aliual, ■8. 298, was as follows :—" If in 1 Sp. 96; The Tdt^raph. xh. 427. 40 STATUTOKY PRESUMPTION OF FAULT. enactments, that though the plaintiff had infringed the Epgiilations, and by his negligence had brought the ships into danger, yet if the defendant could by reasonable care have avoided the collision, the plaintiff could recover. AVhere one ship, A., was in fault tor not keeping a look out, and the other, B., was in fault for infringing the statutory rule, it was held that A. could recover half her loss, and that B. could recover nothing (f/). But it was held that sect. 298 did not prevent the owner of cargo on board a ship infringing the statutory rule from recovering half his loss [e). Tlie effect of these enactmeuts, so far as they abrogated the Admiralty rule of division of loss, was probably not apprehended by the legislature (,/'). The next alteration in the law was made by 25 & 26 Vict. c. 63, s. 29 (g). The effect of this enactment was to restore the Admiralty rule as to the division of damages where both ships are in fault, and a vessel guilty of an infringement of the Statutory Eegulations was enabled to recover in the Admiralty Court (as she could previously to 14 & 15 Yict. c. 79) half her loss against a defendant vessel which was also in fault. The question whether a ship which had infringed a regulation applicable to the case w^as guilty of negligence contributing to the collision had still to be tried in every case {//). The application of the doctrine in Tu//^' v. Warman prevented the above statutes from having the effect desired See also The Juliana, Sw. 20 ; The Faini, 1 Sp. E. & A. 298 ; The Wansfell, 1 tip. E. & A. 271 [d) (/; 110. The Aurora^ Lush. 327. 2he Milan, Lush. 388. 'The ^tvaiiland, 2 Sp. E. & A. ' If in auy case of collision it a|. pears to the Court before which tlie case is tried that such collision was occasioned by ihe nou- obhci vance of any Kegulatiou ninde by or in pursuance oi this Act. the ship by w hicii such Regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the Court that the cii'cunistances of the case made a departure from the rule necessary." The wording of this section stems to h&\ e beeij suggested l^y a passage in the judgnieut of Cockburu, C. J., in Tiijf V. II ani/a/i, iibt su/rra. [h] Under this Aci the following ca~es wt-re decided : 'The Tenhatn, L. K. 3 P. C. 212 ; The Boii(iai..iille, L. E. 5 P. C. 3U); 'Ike Falestine, 13 W. R. Ill; The Tyrus and The timalcs, Holt, 4U ; 'The Tmnsyhania, infra, p. 64. HISTORY OF LEGISLATION. by those who framed them. Attention appears to have heen called to the subject by the decision in The Fcnham [i) ; and 36 & 37 Vict. c. 85, s. 17, the enactment now in force, was passed in consequence. The change in the language of this enactment was made with the iollowiug objects: — I'irst, to take away the ratio decidendi in T({ff' v. Warmnn; secondly, to render it unnecessary to have resort to an artificial rule as to the inference to be drawn from evi- dence (/.•) ; thirdly, to enable the courts to adjudicate upon collision cases without the necessity of detemiining upon conflicting evidence the question of fact, (oft. n a nice one,) whether or no an infringement of a Statutory !{• gulation, applicable to the case, and that might by possibility have contributed to the collision, did, in fact, contribute to the collision (/) ; and, lastly, to increase the stringency of the Regulations {in). The statute, therefore, imposes on a vessel that has infringed a Regulation which is prima facie applicable to the case, the bm-den of proving, not only that such infringement did not, but that it could not, by possi- bility, have contributed to the collision (>/), and it is the (i) See per Lord Blackburn in lowed that of England. 31 Vict. The Khedive, 5 App Cus. STti, S92; c. 58, s. 6 (Canada) was to the same and perhaps by The Jlour/ainiille effect as 17 &; 18 Vict. c. 104, s, 'it'S, and 'The J. C. Stevenson, L. E,. 5 and in The Eliza A'et/h and The P. C. 316 (1872, 1873). Langshair, 3 Quebec. L. R. H3, it {k) As in The Fexham, L. E.. 3 was held that a ship that had in- P. C. 212. These two reasons for fringed the Canadian statutory the alteration in the law are given rules could recover nothing, though by Lord Blackburn in The Khedive, the other ship was also in fault ; 5 App. Cas. 8'J3. but that the cargo-owner could [l] The Fanny M. CarvUI, 13 App. recover half his loss; cf. TIteMtlan, Cas. 455, note ; 2 Asp. Mar. Law ubi supra. See also the following Cas. 565 ; in Court b> low, ii. 478; Canadian cases: — The Aurora, 2 L. R. 4 A. & E. 417, 422; cited by Stuart's V. Ad. Rep. 52; The Lord Blackburn in The Jihedive, 5 Arabian, ib. 73 ; The Germany, ib. App. Cas 876, 81*3 ; approved and 158 ; The Quebec and The Charles followed by the Privy Council in Chaloner, It) Low. Canada Jurir-t, The Lapu-iny,! Ai^Y>. Cas. bl2; 'The 197. The subsequei't Canadian Mtbernia, 2 Asp. Mar. Law Cas. statute 43 Vict. c. 29 (following 454. the English Act 25 & 26 Vict. c. 63) , («() Per Lord Watson, The Khe- restores the Admiralty rule as to dive, 5 App. Cas. 876, 901. division of loss where the statutory (/() In Cauada the course of legis- rules are infringed, lation upon this subject has fol- 41 42 STATUTORY PRESUMPTION OF FAULT. duty of the Coiu-t to inquire into the facts, in ord^^r to ascertain whether the iufringemeut could possibly have contributed to the collision (o). Cases decided In the following case it was held that the infringement ^^he^i^gUsii- ^^ ^ Regulation clearly applicable to the case did not, und^r »»««. sect. 17, prevent the vessel guilty of the infringement from recovering, because the infringement could not by possi- bility have contributed to the collision. VEtoUe was a French trawler, close-hauled on the port tack, ju4 going to shoot her nets, and going two or three knots. The night being fairly clear. The Englishmrtn, an English sailing vessel, was seen coming towards her with the wind free. VEtoilc had a bright light at her masthead. Her side lights were waved by hand on deck, but failed to attract the other ship's notice. The Englishman came on and struck V EtoUc on the port side. On the part of The Eng- lishman it was alleged that nothing was seen or heard of VEtoUc until she struck her. It was held by the Admi- ralt}' Court that there was no look-out on board The Englishman, and that the absence of lights on board VEtoile could not have contributed to the collision ; that sect. 17, therefore, did not apply, and The Englishman was solely in fault (;;). The Fanny M. Carvill was before the Court in The Englishman, and the decision in the latter case was expressly stated by the Court to be in conformity with that of the Privy Council. It appears to have been considered by the Court that the admission by The Englishman that nothing was seen of L'Etoile until the moment of the collision was equivalent to an admissitm that the absence of side-lights on board the latter could not, by possibility, have contri- buted to the accident. In The Lapiving [q) , a steamship under way was held in (o) The T)i'kc of Bucdengh, 1.5 P. (;j) Thfi Eiiglkhman, 3 P. D. IS ; D. 6G ; The. Uennod, G2 L. T. N. S. see The (Jhuxan, o Asp. M. C. 476. 070. {q) 7 App. Cas. 512. INSTANCKS OF ITS APPLICATION. 48 fault imder .sect. 17 for liaving, some foui- minutes or more before the collision, hauled down her masthead light, althougli her side light was seen by the other vessel for some time before the collision. In The Iinhro (r), a sailing ship lying becalmed, and nearly broadside on to a steamship coming up channel, was held in fault, under sect. 17, because she had a white light lashed to her taffrail, and visible to an approaching steam- ship. In The Main (s) a sailing ship was held in fault under the same section for not exhibiting a stern light to an overtaking steamship. In The Tolled {t) a schooner was held in fault under the same section because, being at anchor with her mainsail scandalized (half lowered), her riding light might possibly have been hidden from the steamship that fouled her. Where a Regulation which is material to the case is proved to have been infringed, as, for example, where one of the lights of the ship sued, which was open to the other ship, is proved to have been insufficient to satisfy the statute («/), the onus is on the ship carrying the improper light to show, if she can, that the departure from the Regidations was necessary [x). In the absence of such proof she will be held to be within the penalty of sect. 17 (//). If she alleges the other ship to be also in fault, it lies on her to prove, if she can, that it was not her fault alone that caused the collision {z). A vessel {a) sailing from Dieppe some days before the Regulations of 16»0 came into force was, under sect. 17, (;•) 14 P. D. 73. Tmn-ti v. Clchrro, 9 App. Cas. 1.S6; (,s) 11 P. D. 13J. The Vera Cruz, 9 P. D. 88, iufra, (t) Ad. Div. Uth Doc. 1S86. p. 4t ; and in/ra, pp. 44—46, as to («) The JJiikc of Bitcclcuyh, 15 P. ships in fault, under sect. 17, for D- 86. improper lisjhts. The Fenham,'L.'R. (j) The Memtion, 59 L. T. N. S. 3 P. C. 212, is a similar case under 2S9 ; 62 ib. 84 ; see esp. per Lord 25 & 26 Vict. c. 63, s. 29. Herschell, at p. 85, i>i/ni, p. 5i. (z) The Arklow, 9 App. Cas. 136. [ij) See /'/((■ Uibcriii'i, 2 Asp. («) Tne JfunsewUz, seinble, a Mar. Law Cas. 454 ; The Arklow, foreign ship. Buccleuyh. ^4 STATUTOKY PRESUMPTION OF FAULT. held in fault for a collision, because she was not sounding and was not provided with a mechanical fog-horn. There "was no proof that a mechimical horn could not have been procured at the port from which she sailed ilj). But where a foreign ship canie into the Mersej without having on board a second riding light, as required by the Mersey Rules (ej, and a collision occurred before the master, who had gone ashore to get one, had returnt d to the ship, it was held that the cii-cumstances made a df-paiture from tliH Rngulations necessary within the meaning of 8^ & 37 Viet. c. -So, s. 17 {aui,es v. Maun. INTRlXOEMEN'r 01' THE REGULATIONS. 47 care, and neive, have kno^\'n, that the Rofjulation had ^^ c-omjAying with it. come into oj)eration. If by a wrong mana?u\Te one vessel suddenly causes ris-k of collision to anotlicr, the latter will not be held in fault under sect. 17 unless there is time for those in charge of her, being seamen of ordinary care, skill, and nerve to appreciate the situation, and unless also there is opportunity for them to comply with the Eegida- tion. " When a sudden change of circumstances takes place, which brings a Regulation into operation, though the tiling prescribed by the Kegulation is not done by the person in charge, yet the Regulation can hardly be said to be infringed by him, till he knows, or ought io have known, and but for his negligence would have known, of the change of circumstances" (^). 8o in T/ie Theo•) 59 L. T. N. S. 289 ; G2 ih. 84. INFRINGEMENT 01' TIIK REGULATIONS. 53 took no step to avoid collision until within three ship's lengths of TJie Mciiiiwii, when she starboarded, and thereby rendered collision imminent, and she was, accordingly, without difficulty found to blame. 17/6 JIc union kept her course and speed until The San Salvador starboarded, when she stopped her engines. At the trial, the Trinity Brethren advised Butt, J., " that the officer in charge of T/ie Memnon was not justified, as a sailor, in supposing, until he was within three ship's lengths of The San Salvador, that The San Salvador would keep out of the way, and could do so without difficulty." In the Coiu't of Appeal the assessors agreed with this opinion, but in answer to a further question advised the Court, " that if The San Salvador had kept the course which she was keeping, with- out porting or starboarding, she would have gone a length and a half astern of 27/e Jfcninon." Notwithstanding this, the Court of Appeal, affirming the judgment of Butt, J., held that The Memnon was to blame for not stopping sooner in compliance with Art. 18, on the ground that the officer in charge of her was not justified in assuming, under the circumstances, that " The San Salvador would do what was right," and this decision was, in turn, affirmed by the House of Lords. Lord Herschell, in addressing the House, used the following language : " AVhen once it is shown that it was brought home, or ought to have been brought home, to the mind of the master of a vessel, that the courses upon which the ships were approaching, and the circum- stances, involved risk of collision, the onus is thrown upon him of justifying his not doing that which the rule prescribes The question whether a dejoarture was necessary or not must, no doubt, be determined by the Court ; but it must be determined upon the point being raised, and upon some evidence being tendered to the Court, to show that to have followed the rule would have either created that very risk of collision, which it was the purpose of the rule to avoid, or have increased instead of 54 STATUTORY PRESUMPTION OF FAULT. Breaking- down of fog- horn. Fixing of ships' lights ; a reasonable compHanco •with the Regulations required. diminished (lie risk of collision.." Again, " what must be looked at is the risk as a whole. In order to excuse the master for his non-compliance with the rule, you must show that under all the circumstances, and considering all the possibilities, the total risk would have been greater if he had slackened speed than it would have been if he had not complied with the rule." The breaking down of a mechanical fog-horn has been held to make a departure from the Regulations necessary, and a ship sounding a mouth-horn under such circum- stances w^as held not to be in fault under sect. 17 (y). It appears that what the law requires in respect of the fixing and mechanical details of ships' lights is a reason- able compliance with the liegidations. A very small de- parture from the letter of the Regulations on these points is not an infringement within the meaning of sect. 17. This was the view taken by Butt, J., in The Fire Queen (z). There an obscuration by the starboard cathead of the green light, to the extent at the distance in question of an arc of 2^ or 3 degrees, was held not to be an infringement within sect. 17. " What we must look to is whether there is a reasonable compliance with the Regulations." The learned judge held also that the obscuration did not and could not have contributed to the collision ; but the value of the decision upon the first point is not, it is submitted, thereby lessened. Having regard to the class of people for whose guidance the Regulations are framed, and by whom they are worked, and also to the circumstances under which they are worked, it is difficult to suppose that the legislature could have intended by sect. 17 to enforce anything more than a reasonable compliance with the Regulations as to the carrying and fixing of lights. As regards the steering and sailing rules, the decision in The Khedive (a) shows that the smallest infringement of them will be fatal. (y) The Chilian, 4 Asp. Mar. Law Cas. 473. (--) 12 r. D. 147. p. 377, note {nil). {(i) 5 A^jp. Cas. 876. Cf. infra, INFRIXGEMENT OF THE REGULATIONS. 65 There is some doubt whether, iu a case where the colli- Whether s. 17 sion is from the first inevitable, sect. 17 can apply at all. ^PPli^s where ' L L J the collision is The Regulations are " for preventing collisions at sea," from the first and it would seem that where a collision is from the first inevitable, the Regulations do not apply, and therefore cannot be infringed. Upon this point T/ie BucJdiurd {b) may be cited. T/ie Buckhursf, a sailing vessel, at 630 p.m. parted from her anchors in a heavy gale, and, after driving over Cardiff Sands and disabling her rudder, came into collision at 8 p.m. with a vessel brought up to leeward of the sand. T/te Buckhurd had her riding light, but no other light, exhibited up to the time of collision. In the opinion of the Court the collision was an inevitable accident. It was argued that The BucMurst must be in fault under sect. IT, because she had not exhibited her side lights, or the tliree red lights indicating that she was disabled. The case appears to have been decided upon the ground of inevitable accident. But it was held also that the circumstances of the case rendered a departure from the Regulations (as to lights) necessary ; and further, that the non-carrying of the side or three red lights could not by possibility have contributed to the collision. It would seem, therefore, that, in the opinion of Sir R. Phillimore, sect. 17 may apply, though the collision is inevitable. In The Voonraarfs and The Khedive the opinions of the majority of the learned lords, and the judgments of the Court of Appeal and Admiralty Division, assume that the collision was not inevitable when The Vooricaarts first showed her red light. But Lord Blackburn (/ Loivnshire, 4 P. D. 26 ; The Vera Cruz, 9 P. D. 88. {q) See below, p. 671, as to rules under this Act. (r) The llarton, 9 P. D. 44. In The Swansea, and The Condor, 4 P. D. 115, this question was con- sidered but not decided. The opinion of the learned judge in the Court below seems to have differed from that of the Court of Appeal. INFRINGEMENT OF LOCAL RULES. 59 rules will not he lield in fault unless the infringement did, in fact, contribute to the collision. An infringement of rules, such as the Mersey river rules, made in exercise of the powers given to local authorities by 25 & 26 Vict. c. 63, s. 32, will, it seems, cause a ship to be held in fault under the enactment above referred to. By sect. 32 it is provided that such rules shall, " so far as regards vessels navigating such waters, have the same eifect " as tlie rules contained in the Schedule (C) to tlie Act. It would seem that they are "made under" the Act within the meaning of sect. 17. In a case under the Humber rules it was so decided (.s) ; and in a case under the Mersey river rules it was assumed by Butt, J., that sect. 17 applied {t). It seems that, where local rules are in force, the opera- tion of the General or Sea Eegulations is not thereby excluded, except so far as they conflict with the local rules. Thus, in the Clyde, where local rules are in force, a vessel was held in fault under sect. 17 for not having stopped and reversed her engines in compliance with the Sea Regulations («<). An important question may, however, arise as to the TMiethor s. 1 7 . 11 ^^^ • ■ ,, applies when effect of sect. 17 m cases where the collision is not at sea. the collision is It may be contended that in a river where no local rules ^°* ^^ '^*^"- are in force, although sliips are required to navigate in accordance with the general Sea Regulations {x), failm-e to do so would not bring a ship within the penalty of sect. 17, inasmuch as the Regulations are expressly binding only at sea. In a case, however, where the collision was in the Humber, near the Flat Holme Sand, it was held tliat one of the ships was in fault under sect. 17 for an infringe- {x) The Itipon, 10 P. D. 65, infra. 118. Tt appears that in this case p. oGG. tlic ship was in fault upon tlu^ {<) Tfie Fire Queen, 12 P. D. 147. facts, so that the application of («) liitlcv. Burns, The Qui and sect. 17 was unnecessary. The Ariadne, 9 Sess. Cas. 4th Ser. [x) See inj'ra, p. 343. c. 85, s. 16. 60 STATUTORY PRESUMPTION OF FAULT. ment of the Eegulations (i/). And in Scotland a vessel was held in fault for an infringement of the Regulations in the River Clyde, where local rules of navigation are in force (z) . Presumption The other ease where damages may be recovered with- th ^'ih'*^ T'^r*^ out proof or existence of negligence on the part of the to stand by ship sued, is when she fails to stand by and assist the 36 & 37 Vict, ^^ip "with which she has been in collision. By 36 & 37 c. 85, s. 16. Yict. c. 85, s. IG, it is enacted as follows : 36 & 37 Vict. "In every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without danger to his own vessel, crew and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew and pas- sengers (if any), such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision ; and also to give to the master or person in charge of the other vessel the name of his own vessel, and of her port of registry, or of the port or place to which she belongs, and also the names of the ports and places from which and to which she is bound. "If he fails so to do, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrong- ful act, neglect, or default. " Every master or person in charge of a British vessel who fails without reasonable cause to render such assistance or give such information as aforesaid shall be deemed guilty of a misdemeanor (a), and if he is a certificated officer an inquiry into his conduct may be held and his certificate may be can- celled or suspended." (y) The Germania, cited Maude & 27ic Ariadne, 9 Sess. Cas. 4tli Ser. Pollock on Shippinor, 4th ed. 606, 118. note (i) ; and see Tlie Swanland, 2 {a) Punishable by fine of 100^. or Sp. E. & A. 107. imprisonment for six months : 17 & iz) Little V. Burns, The Owl and 18 Vict. c. 104, s. 518. NOT STANDING BY. 61 The temptation for a ship to run away from anotlier with which she has been in colHsion by her own fault, in the hope of escaping- detection, has been found in many cases stronger than the dictates of humanity. " Standing by " was first made a statutory duty by 25 & 26 Vict. c. 63, 8. 33 (h). Previous to that Act, liowever, the duty of each ship to render assistance to tlie other was distinctly recognized by the Admiralty Court, and failure to stand by a ship injured in a collision was punished by com- pelling the defaulting ship to pay the costs of the suit, although she was free from blame in other respects, and successful in the suit (r). However free from blame a ship may be in other re- spects, and however wanton the collision on the part of the other ship, the law requires each to stand by the other. If either ship fails to do so, in the absence of proof to the contrary {(/) , she will be held to be in fault for the collision. The " person in charge " mentioned in sect. 16 is the On whom the master, altliough at the time of the collision the ship is in the'^dutv'to^ charge of a pilot (e) . If the master is below, the duty to ^tand by. stand by lies on the mate or other person in charge of the deck, until the master comes on deck ; if life or property is still in danger, it is then transferred to the master (./'). Where a collision occurred between a ship in tow and a third ship, it was said by Sir R. Phillimore that the law required the tug to stand by the ships in collision (r/). The penalty for not "standing by" is strictly enforced. What is rea- sonable cause (/;) It was introduced into the statute by Lord Kingsdowu ; see The Hannibal and The Qiti-rn, L. R. 2 A. & E. 53, 56 ; 168 Hansard's Pari. Deb. 281. {c) The Celt, 3 Hag-. Ad. 321. [d) In The liritish I'rineess and The Sedmi Dubroracki, Ad. Ct. March 11 — 14th, 1879, there was such " proof to the contrary," and a ship Avhich left the other, with which she had been in collision, re- covered damages for the collision. {e) The Queen, L. R. 2 A. & E. 354. (./') £x parte Fen/uson and Hutch- inson, L. R. 6 Q. B. 280. ((/) See The Hannibal and The Queen, L. R. 2 A. & E. 53 ; the three last-mentioned cases were decided under 25 & 2G Vict. c. 63, s. 33. 62 STATUTORY PRESUMPTION OF FAULT. for failure to stand by. Failure to stand hj does not affect right to salvao-e. A ship must obey the law although there is some risk to herself, and the other appears to be in no danger. A steamship was held in fault for not standing by another with which she had been in collision, although, being in narrow waters, and herself of great length (450 feet), she could not do so without risk of going ashore, and although she had hailed another ship, better able to assist, to do so (A) . A barque was held in fault under sect. 16, though her fore compartment to the collision bulkhead was full of ■water, and she was five or six feet by the head. The col- lision was in the channel, fom- or five miles from land, and the weather was bad (/). So where the ship is unable literally to comply with the law, and, without fault on her own part, parts company with the vessel with which she has been in collision, those on board her must do their best to render assistance. In such a case, if the collision is at night, and she sees rockets or other signals of distress from the other vessel, it is her duty, under sect. 16, to return them by similar signals, or in any way within her power. In The Ermmj Haase (k) a vessel so neglecting to return signals of distress was held in fault for the collision under sect. 16. Although a vessel which fails to render assistance to another with which she has been in collision breaks the law, it appears that her right to salvage remuneration, ■where she renders assistance to a ship with which she has been in collision by no fault of her own, is not affected by •36 & 37 Vict. c. 85, s. 16. In a case under 25 & 26 Vict. c. 63, s. 33, it was held that the right to salvage reward of a tug, whose tow was damaged in a collision with a third [h) The Adriatic, 3 Asp. Mar. Law Cas. 16. The present Act is more stringent thyn former Acts (25 & 26 Vict. c. 63, s. 33 ; 34 & 3.5 "Vict. c. 110, H. 9). Other cases under the Act of 1862 are The Lucia Jantina and The Mexican, Holt, 130; The Queen of the Oricell, 1 Mar. Law Cas. 0. S. 300 ; The Eliza and The Orinoco, Holt, 98. (0 The Valley 0, Ad. Div. 27th April, 1887. (/.) 9 P. D, 81. NOT STANDING BY. 63 ship, for which the latter was in fault, was not affected by the statutory enactment as to standing by (/). The "standins: by" section of 25 & 26 Vict. c. 63, was Collision with held to apply in the case of a collision with an open fishing- boat {»i). It seems that where a collision is caused by the fault of "Proof to the ,. , , , contrary — a compulsory pilot, the shipowners are not liable, under i. e. that the sect. 16, by reason of the subsequent neglect by the master not'J;;;j^i''by to stand by (»). In such a case there would seem to be fault of ship " proof to the contrary" within the meaning of the second stand%y. paragraph of sect. 16. These enactments raising a statutory presumption of Application fault against (1) a ship which infringes the Regulations, ^^ foreign and (2) a ship which fails to render assistance, apply to ^^^^^P^- all ships, whether British or foreign, and whether the col- lision occurs in British or foreign waters or on the high seas {o) . There is no express decision upon the point ; but it has been assumed that sect. 17 applied to a British ship in collision with a foreign ship, whether in British waters (;;) or on the high seas {q) ; and to a foreign ship (r) under the same circumstances. The wording of 36 & 37 Yict. c. 85, s. 16, favours the contention that that part of the section which relates to the presumption of fault applies to foreign as well as British ships. Both sect. 16 and sect. 17, moreover, would probably be held to be rules of evidence or procedure, ap- plicable to foreign ships as part of the lex fori (.s). (;) The Hannibal and The Queen, Scdmi JJubrovacki, Ad. Ct. March, L. R. 2 A. & E. 53. 1S78 ; The Eiujlishman, 3 P. D. 18 ; (w) Ex parte Fcrfluson and Hutch- The Voorwaarts and The Khedive, 5 tmoH, L. R. 6 Q. B. 280. App.Cas.876; and see (w/w, p. 217. («) The Queen, L. R. 2 A. & E. [r) The Maffdr/noffh and The Henri/ 354, Willard (an American ship), Ad. (o) The Magnet, L. R. 4 A. & E. Div. 16th Jan. 188."), where the 417. See per Sir R. Philliniore in collision was on the higrh seas ; 'The Reg. V. Keyn, 2 Ex. D. 63, 65. Love Bird, 6 P. D. 80, wliero, from The doubt expressed by the Pl■i^•y the name of the ship deemed to be Council in The Fanny M. CarvUl, 2 iu faidt {The Fan.seuitz), it would Asp. Mar. Law Cas. 565, 569, ap- seem that she was foreign. The pears to be not well founded. collision was at the entrance to the (p) The Vera Cruz (So. 1), 9 P. Skager Rack. D. 88. («) See as to this, pp. 208, 216, ((/) The British Frincess and The 217, infra. In Four// v. Genera/ 64 STATUTORY PRESUMPTION OF FAULT. Application of s. 17 to Queen's ship. Liability ■where ship deemed to be The application of sect. 17 to foreign sliips is furtlier considered in a subsequent chapter (/). Euactnients similar to sects. 16, 17, are in force in several of the British colonies (k). In one case a Queen's ship has been held in fault under sect. 17 (,r). The question whether the Act applies to a Queen's ship does not appear to have been discussed or raised. It is submitted that it does not so apply (//). Where a ship is deemed to be in fault under either sect. 16 or sect. 17, the owner will usually be liable at law, Steam Nav. Co., 5 E. & B. 195, 9. 28 of 14 & 15 Vict. c. 79, was held to be a rule of evidence. (0 See infra, p. 223. There is no law in America corresponding to 36 & 37 Vict. c. 80, s. 17. The Supreme Court has declared that it will not "accept blindly an artifi- cial rrde which is to determine in all cases whether the navigator is liable to the charge of negligence in causing any damage that may happen:" The Farraffi.it, 10 Wall. 334. But the burden is on a vessel which has infringed the Statutory Regulations to prove that the in- fringement did not contribute to the collision : The Pennsykania, 19 Wall. 125; The Ariadne, 2 Bened. 472. If, however, such proof is forthcoming, a ship will recover full damages although she did not comply with the Kegulations : 1 Parsons on Shipping (ed. 1869), 596, 597; Chamberlain v. lizard, 21 How. 548, 567; The Grey Eagle, 9 Wall. 505; The Continental, 14 Wall. 345 ; The Sunnyside, 1 Otto, 208 ; The City of IVanhinyton, 2 Otto, 31. And Blanchard v. New Jersey Steamboat Co., 59 New York Rep. 292 ; and Whitehall Transport Co.v. New Jersey, ^c. Co., 51 N. Y. E-ep. 369 ; and Hojfinan v. Union Ferry of Brooklyn, 7 Amer. Rep. 435, are decisions of the State of New York Courts to the same effect. In The Pennsylvania a steamship and a sailing ship were in collision. The latter was not sounding her fog-horn, but was ringing a bell, though she was under way. The Supreme Court refused to admit evidence that the bell could be heard further than the horn, and held that the sailing ship was m fault for the collision. The follow- ing passage, which occurs in the judgment of the Court, shows that the law ill America as to the effect of an infringement of tlie Regula- tions is identical with that of this country: "Where a ship, at the time of collision, is in actual viola- tion of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the collision. In such a case the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been." The same ship was in this country held free from fault : see The Pennsylvania, 3 Mar. Law Cas. O. S. 477. {/i) Canada, 43 Vict. c. 29 ; see The Clara Killam, 2 Quebec L. R 56 ; The Govino, 5 Quebec L. R 57 ; Queensland, 46 Vict. No. 12 South Australia, 44 & 45 Vict. No 237; Victoria, 28 Vict. No. 255 New South Wales, 25 Vict. No. 7 New Zealand, 41 Vict. No. 54 Prince Edward's Island, 30 Vict. c. 13, s. 2. (x) The FLoehuny and The Lap- wing, 7 Ap. Ca. 512. (y) See 17 & 18 Vict. c. 101, s. 4 ; 25 & 26 Vict. c. 63, s. 1 ; 36 & 37 Vict. c. 85, s. 2. NOT SIANDING 1!V. 65 and the sliip herself in Admiralty proceedings /// rctn. in fault under But where the infringement is proved to have been the act of persons who are not the owner's servants, the lia- bility is not so clear. In such a case, if the ship is under charter or demise, it seems that the ship may be liable in proceedings in rem {z), while the owner is not liable at law. If tlie infringement is the act of a compulsory pilot, it would probably be hold that neither the ship nor her owners are liable under sect. 17 {a). In T/ie Milan [b) it was held, that fault presumed by law does not affect owners of cargo, so as to prevent them from recovering from the owners of the other ship (c). But sect. 17 affects with the usual consequences of negligence persons on board the ship deemed to be in fault, whose duty it was personally, or by their agents, to comply with the liegulation which has been infringed. Thus, it was held, that the master of a schooner brought up in the Mersey with one of her riding lights in an improper position was, under sect. 17, guilty of negli- gence contributing to the collision ; and that his widow, suing under Lord Campbell's Act, could not recover damages for his death {((). Where a ship is deemed to be in fault under sect. 17, Rule of divi- ' -P 1 although there is no proof of negligence causing the col- ^^ere shfp lision, the rule of division of loss applies (i-). And it is deemed to bo conceived that the case would be the same where sect. 16 is infringed. {z) See TheLemington, 2 Asp. Mar. had been overruled by The Bernina, Law Cas. 475; T/ie Tasmania, 13 13 Ap. Ca. 1 ; see infra, p. 108. P. D. 110; infra, pp. 90, seq. [d) The Vera Cruz' (No. I), 9 P. («) The Hector, 8 F.B. 21S. D. 88. This case was reversal (b) Lush. 388 ; decided uuder uijon another point, 10 Ap. Ca. 59. 17 & 18 Vict. c. 104, 8. 298. {e) The Lapwing, 7 Ap. Ca. 512 ; (c) This was so held before The Khedive, 7 Ap. Ca. 795 ; and Thorogood v. Jirgan, 8 C. B. 115, see infra, p. 144. M. ( «(^ ) CHAPTEE III. LIABILITY. Persons The persoii primarily liable in damages to the sufferer by liable ; the collision is he bv whose negligent act the loss was occa- actual wrong- r.,, , . • i • i • i j.-u doer. sioned. The shipowner navigating his own vessel, the master, mate, pilot or other person in charge of the ship, who gave a wrong order to the helm (r/), the helmsman who directed the ship's course wrongly, the seaman on the look-out who negligently failed to see and report the approach of the other vessel, may all be sued as wrong- doers, and are liable for damages (b). An action was brought against a pilot on board a king's ship for injury to the plaintiff's ship by the king's ship. It was held by Lord Kenyon that, though the pilot might be obliged to act in obedience to the order of the lieutenant in command of the king's ship, yet the pilot would be liable, if the collision happened by his personal miscon- duct. Upon proof that the collision occurred by reason of an alteration of the helm ordered by the lieutenant, the plaintiff was non-suited (c) . Liability of I^ has been said that the master is liable for the negli- master. ggj^^ and wrongful acts of his crew as well as for his own acts {(1). His liability as carrier, unless specially limited, {a) See Storl v. Clements, 1 Peake, 316. J07. (c) 'Start v. Clements, 1 Peake, ib) Stort V. Clements, ubi supra; 107. Smith V. Fms, 2 H. & N. 97; Law- (d) Story on Agency, §§ 314— son V. Bumlln, 9 C. B. 54 ; were 317; Molloy, 1. 2, c. 3, s. 13. And actions against pilots. As to the in America it has bcM'n so held: practice of the Admiralty Division Denlnon v. tieijmour, 9 Wend. 9. in personal actions, see below, p. THE ACTUAL WKONG-DOEJi. 67 may extend so far ; but it does not appear to have been held in any case decided in this country that ho is liable in tort for wrong-ful acts of the crew(«) See Joyce v. Capel, 8 C. & P. 370 ; llibbs v. Ross, L. R. 1 Q. B. 534, and cases there cited ; Frazer v. Cuthbertson, 6 Q. B. D. 93, 98 ; ChasteatmetiJ\ . Lehnige, 7 App. Cas. 127. OF SHIPOWNER FOR ACIS OF CHEW. 00 Lilitj. '' Tlio (jwuer would ni)t he lialilc merely Localise he was owner, or without showing tliat those uavigating the vessel were his servants "(y/) • It is scarcely necessary to observe that the liability of the shipowner for the acts of the master and crew does not dej^end upon their being on board at the time of the collision (o) . It is further necessary, in order to fix the shipowner The act com- with liability, that the negligent act complained of was an must1te°an act of the servant acting within the scope of his employ- ^^t oi the nient(7;). In the ordinary case of a collision occurring in within tlie the course of the employment of the ship for the o^vner's ^^"^^^ "* ^^\ . . , employment, benefit no ditficulty arises upon this point. But when the ship is engaged upon a voyage or duty not authorized by the owner the question arises whether those on board are acting within the scope of their employment by the owner. Where a master, ^\•ithout any instructions from his owner as to towing disabled ships, undertook to assist a disabled ship into port, and whilst attempting to get her in tow negligently ran into and injured her, it was con- tended that the ow^ler was not liable, because the master in assisting the disabled ship was not acting within the scope of his employment. It was held that he was so acting, and that his owner was liable («7). Wilful, malicious, or criminal acts of the master and Owners not crew can seldom be within the scope of their employment -^\u^\ ^^y^. so as to make the shipowner liable. Thus for a collision lit'ious and caused by the master and crew maliciously driving their of their servants. (w) Fer Lord Cairns, C, Jtitrr {p) As to wliat acts are within JJ'ear Comminsivurra v. Adaiusoii, 2 the scope of the servant's cniploy- App. Cas. 743, T-'il ; and prr Lord ment, see 1 .Smith's L. C. 'Jth cd. Bhickbuni, Simpson v. Thoinpsu)i, 3 394 ; and per Willes, J., Jiarwick App. Cas. 279, 293 ; Hibbs v. Eosn, v. English Joint-Stock Jiaiik, L. R. ubi supra. 2 Ex. 269, 2G5. (o) See The Northampton, 1 Sp. {q) The Thetis, 3 Mar. Law Cas. E. & A. 152 ; Jlibbs V. Moss, ubi 0. S. 357. supra ; The Kepler, 2 P. D. 40. 70 LIABILITY. Owner's lia- bility where the ship is under charter. sliip agaiust another the owner will not be liable (r). So where those on board a ship wilfully cut another ship adrift, and the latter suffered damage in consequence, it was held that the owners of the former were not liable at law, and that their ship covdd not be sued in Ad- mu-alty (.s) . But owners are liable for the acts of their servants done in the course of their service and for then- master's benefit, though no express command or privity of the owner be proved (/). And owners are answerable for the manner in which their servants navigate their ship, though the wrongful act of the servant is one against which the owners have given express orders {k) . Infringement of the Statutory Regulations for Prevent- ing Collisions at Sea is a misdemeanour, and damage caused thereby is deemed to have been caused by the wilful default of the person in charge of the deck {v). But owners are not relieved from liability for the acts of tlieir servants in such cases (.^■) ; nor are they the less liable because the negligence of tlieir servants is criminal, and amounts to manslaughter (y) . Where a ship is being worked by a charterer or hirer, Avho appoints and pays the officers and crew under a (/•) The Druid, 1 W. Rob. 391 ; 3IcManas v. Crickett, 1 Ea.st, lOG ; Croft V. Alisoti, 4 B. & Aid. 590. In The Seine (Sw. 411) this defence was pleaded. There is some diffi- culty in reconciling these with later cases (carriage accidents), Limpus V. General Omnibus Co., 1 H. & C. 526 ; Paye v. Lefries, 7 B. & S. 137 ; but character of the acts in the carriage cases is substanti- ally different from that in the ship cases. For an instance of a wil- ful attack upon another ship by a tug, see L. K. 1 A. & E. 64. (s) The Ida, Lush. 6 ; the ship was foreign, and the collision was in a foreign river ; and see as to this case, 2^er Sir R. Philliuiore, L. R. 3 A. & E. 47. Cf. Waltham V. Mulgar, Moore, 776, infra, p. 93. [t) See per Willes, J., Barwick v. English Joint-Stock Hank, L. R. 2 Ex. 259, 265. («) LinipuH V. London. General Om- nibus Co., L. R. 1 H. & C. 526; Belts V. l)e Vitre, L. R. 3 Ch. 441. {v) 25 & 26 Vict. c. 63, ss. 27, 28. (,):] It was so held under the pro- visions of a former Act : Jlie Seine, Swab. 411. See also Poulton v. London and South Western Rail. Co., L. R. 2 Q. B. 534 ; Grill v. General Iron Screw (Jollier Co., L. R. 3 C. P. 476. [y) See The Franeonia, 2 P. D. 8, 163 ; Itcf/. V. Keyn, 2 Ex. D. 63. OF sHir uNDEii cii\iit?:r. 71 charter-party or agroemont which amounts to a domisc of the vessel, tlio owner is not liable at law for damage she may do while in the possession of tlie charterer. But if the owner remains in possession of the ship, either by himself or his agents, he is liable, though she is under charter to another. AVhero a ship was chartered to a person for six months at 20/. a week for the carriage of passengers and goods as he should direct, the charterer paying all disbursements and the wages of officers and crew, and the owners keeping the ship in repair, it was held that tlie owners were liable for a collision caused by the fault of those on board their ship (;:). In Bahjell v. Ti/re)-{a), H., the lessee of a ferry, hired a tug with her master and crew to assist in working the ferry for a day. A person who had contracted with H. for a season ticket was injured, whilst on board the tug, by the negligence of her crew, who were the owners' servants. It was held that he could recover against the owners, and that his right against them for the negligence of their crew was independent of his right against H. upon the contract. It has been doubted whether the owners of a ship which is manned by a master and crew who are the owners' servants, but who, by the charter-party are bound to obey the orders of a third person who is not the owners' servant are liable at law for damage done by the ship while acting imder the immediate orders of such third person. Upon principle it is difficult to see why the owmers, by placing their servants under the control and orders of a third person, should escape liability for their wrongful acts. And in Fldclter v. Bmddick {b) Sir J. Mansfield held the owners liable in such a ease. [z) Fenton v. BuhUn Steam Packet power to dismiss the crew and Co., 8 Ad. & Ell. 835. The decision officers, went upon the words of the charter- {a) Ell. Bl. & Ell. 899. party; but it was proved that the [h) 2 N. R. 182. This case owners had appointed and had is not satisfactory. Tlic deci- 72 LIABILITY. Owner can recover over against actual ■wrong -doer. Owner not liable for the negligence of one to whom the ship is demised. But where a vessel was one of a fleet of transports engaged in the service of the Grovemment upon an expe- dition of war, it was held by Cockhurn, C.J., that it was an incident to such an employment that all the vessels should obey the orders of those in command of the expe- dition ; and that if one of them damaged another of the fleet, whilst acting in strict obedience to such orders, her owners would not be liable (c) . Where a Thames barge was lent by her owner to a person, who navigated her with his own men, it was con- sidered clear by Best, J., that the owners were not liable for damage done by her {d) . The shipowners, or employers of the master or actual wrong-doer, by whose fault a collision occurs, can recover against him any damages which they have been compelled to pay, or any loss which they have suffered by his negligence {e). It has never been held that the duty to use due care and skill which is incumbent upon every person in the conduct of that which, if misconducted (/'), may be harmful to others, attaches to a shipowner whose ship is being navi- gated by a person who pays the owner for the use of her, but navigates her himself or by his servants (^). On the contrary, it seems clear that in such a case the shipowner is under no such duty, though his ship is chartered or hu-ed sion went partly upon the ground that the duty of the officer did not extend to seeing to the working of the ship. The officer was in the service of the Grovemment, who were the charterers. The case was, however, cited without com- ment by Sir J. Hannen in The Tasmatiia, 13 P. D. 110, 117. (c) HodgkbiHon v. Fernie, 2 C. B. N. S. 415 ; this statement of the law was approved by the Court. {d) Scott V. Scott, 2 Stark. 438; but it seems that in Admiralty she would be subject to arrest. See The Emily, 67 L. T. 214. {e) Green v. New River Co., 4 T. R. 589 ; Bleiriit v. Hill, 13 East, 13. (/) As to this duty, see per Den- man, C.J., Mai/or of Colchester v. Jirooke, 7 Q. B. 339, 377 ; ;>e7-Lord Stowell in The Dundee, 1 Hag. Ad. 120 ; per Lord Blackbuni in The Voorwaarts and The Khedive, 7 App. Cas. 795,812; imAIiiver Wear Com- missioners V. Adamson, 2 App. Cas. 743, 7G7. Seeal8oi«y>-«, p. 212. {g) But the principle has been adopted in the Harbours, Docks, and Piers Act, 1847, mentioned in the next paragraph of the text, and in some local Docks Acts. OF PERSONS OTTIF.R TH \N OWNERS. 73 for the purpose of navigation, and is in the course of em- ployment for the owner's benefit. The duty above referred to attaches only to those Avho have the actual conduct of the ship and to their employers. If the duty attached to the owner qua owner, it is clear that he could not free himself from it by contract (//) ; but it has been pointed out in a former page that mere ownership creates no liability for damage done by the ship(/). By the Harbours, Docks, and Piers Act, 1847 (10 Vict. Owner liable c. 27), s. 74, the owner of a ship which damages the damage to °^ harbour, dock, pier, fiuays, or works is answerable to tlie pier, &c., by PI," T 1 ^ ^ ■ ^ persons other undertakers for the damage done by such ship, or by thau his any person employed about her. This statutory liability servants, is larger than the common law liability of the shipowner ; for it exists whether the actual wrong-doer is his servant or not. The ship herself is also liable in Admiralty, and a maritime lien is, it seems, created by the statute for the amount of the damage (./ ) . It has been held that, not- withstanding the words of the statute, the shipowner is not liable for injury to a pier by his ship in case of violent tempest or act of Grod (/«•). And the statute provides (sect, 74) that the shipowner shall not be liable where the damage was caused entirely by the fault of a compulsory pilot in charge of liis ship. The liability for damage done by a ship springing, as Liability of 1 ,p 1 • c 2_^ ^ • ^ j_ s' persons other we have seen, not from ownership oi the ship, but irom \^^^ o\vners; the rule of law by which a man is liable for the wrongful acts of his agent acting within the scope of his employ- ment, it is evident that, on the one hand, an owner may be liable, though the relation of master and servant does (/() Hole V. Sittingboimtc Rail. (J) See The Merle, 31 L. T. N. S. Co., 6 H. & N. 488 ; per Lord 447. Blackburn, Daltoii v. Angus, 6 App. (/.) River Wear Commissioners v. Cas. 740, 820 ; Bower v. Feate, I Adamson, 2 App. Cas. 743, over- Q. B. D. 321 ; Ihighcs v. Rerciial, ruling The Merle, 31 L. T. N. S. 8 App. Cas. 443. 447, and Dennis v. Tovell, L. R. 8 (i) Supra, p. OS. Q. B. 10. 74 LIABILITY. not exist between him and the person who does the mis- chief, and on the other hand, that tlie principal or employer of the wi'ong-doer will be liable, whether he is also owner of partners ; of the ship or not. A ship worked by a partnership is an instance of the latter case. Each member of the partner- ship is liable for the negligent acts of the other partners, and for the acts of agents of the partnership done in the course of the business of the partnership (/). In this case, unless the partner sued is an owner of the ship, it seems that his liability is imlimited {m). In Steel V. Lester {)i) the actual owner, who was also registered as managing owner (o), had agreed with the skipper that the vessel should be worked entirely by him, the owner having no control over her, the crew to be engaged and the voyages to be determined at the absolute discretion of the skipper. The owner was to receive one- thii'd of the net profits earned by the ship. It was held that the owner was liable for a collision caused by the fault of his ship. Whether the skipper was the owner's servant, or his partner ( p) in the adventure, navigating the ship for the joint benefit of himself and the owner, it was held that the owner's liability was the same. of charterer. Where the person whose negligence causes the collision is the servant or agent of a charterer of the ship, the liability for damages falls on the charterer. But, except in the rare case of an actual demise of the ship, it seldom happens that the officers and crew are in the employment of the charterer and not of the owner. Whether in the case of a ship being demised to a charterer, the charterer would take the benefit of tlie statute limiting shipowners' liability, seems doubtful (i. 1 Keb. 44, where ralty and the law of deodand ; and the "misdemeanour of hoat " is ho reicrs to the iioxce daf if io of the spoken of. Roman hiw as embodyinj^ the same (ci) The doctrine -which, treating idea. But there seems considerable the ship as the wrong-doer, makes doubt whether an-est of the ship in her liable in Admiralty under all Admiralty had any connection with circumstances, and without regard deodand or noxtc deditio. It was to her ownership, has been carried more probably adopted simply as a further in the Amc^rican Courts means of compelling the owner to than is consistent with the English appear. decisions: see /;/■/• Story, J., I'nitrd [b) Fer Selwyn, L.J., in The States V. The Mahk Adhcl, 2 How. Hallcy, L. R. 2 P. C. 193, 201. 210, 233. In Holmes' Common And see The M. Moxhnm, 1 P. D. Law, pp. 26, acq., and an article, 107, 111 ; Simpson v. 'Thompson, 3 10 American Law RevicAv (p. 432), App. Cas. 279, as to the necessity the writer, Mr. O. W. Holmes, of detei-mining who is " the actual juu., traces a connection between wrong-doer." the liability of the ship in Admi- [c) 5 P. D. 197, 218. 78 LIABILITY. or want of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to show that the liability to compensate must be fixed not merely on the property, but also on the owner through the property." From the expressions used in these judgments, it would appear that the liability of the ship in Admiralty, and of the owner at common law, should always be concurrent. And in Tlte Druid {d), Dr. Lushington said, that the liability of the ship and the responsibility of the owner, were convertible terms. But unless we are to understand "owner" to mean pro hue rice owner, or in some sense other than that of general owner, the dictum of Dr. Lushington is not consistent with subsequent cases. It is clear that the ship may be liable in Admiralty where no damages could be recovered at law against the general owner. Cases in which it has been so held will be considered below {e) . Maritime lien Before discussing further the cases in which the ship, itenaturf'^''' as distinguished from her general owners, is liable to the sufferers in a collision, it will be convenient to consider the natm^e of the liability of the ship in Admiralty. This liability exists in the form of a lien or charge upon the ship, which arises in consequence of the collision in favour of the injured party. As a general rule, where a ship in the course of her employment for the owner's benefit, by the fault of those in charge, strikes or causes injury to(/) another ship, a charge for the amount of the loss attaches to her in favour of the sufferer. This charge or privilege, called a maritime lien, is enforced against the ship by an action in rem in Admiralty. {cI) 1 W. Eob. 391. collision between two others, though (e) Infra, pp. 90, acq. she does not herself strike either of (/■) It seems that the lion attaches them. See uifra, p. 85. to a ship that negligently causes a MMMIlMi; l.l];X FOR nVMAGE. 7!> The proceedings in iiu action ni rein commence with the issue of a writ of siunmons addi-essed to tlie owners and ])ersons interested in ilir- .ship(^); this is followed by arrest (//) of tlie ship by the marshal of the Court. There- upon the slii}), with her gear and tackle, and the freight she is earning at the time of the collision, become security to the plaintiff for any damages he may recover in the action (/). The privilege or right of the injured party against the ship is inchoate from the moment of collision (/•) , and is carried into effect by proceedings in the Admiralty Divi- sion of the High Court or other Court having Admiralty jurisdiction (/). It is not displaced by a sale to a Ijond [g) As to service of the -wi'it, see i)ifra, pp. 304, 327. (Jt) The Valcntini.in Regulations, issued ciiriter a.d. 1336 — 1343, for the guidance of the Courts of the Sea at Valencia, contain provisions as to the execution of the sentence of the Court by arrest and sale of the moveal)le property of the de- fendant, including his ships. These provisions are in some respects simi- lar to the existing process of the Admiralty ; but there is no trace in them of a lien existing before arre.st. See Twiss' Black Book of the Ad- miralty, Vol. IV. pp. 47o xrij. The Regulations are referred to by Mr. Justice Story in Dc Lovio v. Boit, 2 Gall. 398, as authority for the ex- tent and character of Admiralty jurisdiction. Arrest of a defen- dant's property or person, to com- pel him to appear, licet in Jure civili nullum habet fiindammtitm, was a practice which formerly ex- tensively prevailed on the con- tinent of Europe — res fold Eitropd unilalminia : Huberi Positiones juris, ii., 4 ; Hub. Pruelectioncs jur. civ., vol. 2, 88 soij. This subject is fully discussed in Maine's Early History of Institutions, pp. 261 scq. {)) Subject to the marshal's charges ; T/ir F.iiropo, B. & L. 210. The nature of proceedings in rem is very fully discussed in the following cases : The Bold Buc- elcuf/h, 7 Moo. P. C. C. 267 ; The Aline, 1 W. Rob. Ill ; Thr Mellona, 3 W. Rob. 16 ; The Ki/mph, Swab. Ad. 86 ; The rarlement Beh/e, 5 P. I). 197 ; The Orient, 3 Mr. Law Cas. 0. S. 321 ; L. R. 3 P. C. 696 ; The Tii-o Ellens, L. R. 4 P. C. 101 ; The Ihinrich BJorn, 10 P. D. 44, at j)p. 53, 54 ; The Cella, 13 P. I). «2 ; 'Taijlor V. Carri/l, 20 How. 584. It is doubtful whether the doctrine that collision gives rise to a lien is older than The Bold BiivcleKgh. In no earlier case is the doctrine ex- plicitly stated. In Brown's Admi- ralty Law, vol. 2, p. 143, it is stated that "the torts of thp master cannot be supposed to hypothecate the ship, nor in my humble judg- ment, in strictness of speech, to produce any lien on it." And so of salvage {ib. p. 52), there is no lien. From Clerke's Praxis, tit. 24, 28, it appears that arrest of the defendant's ship (or other goods) was an alternative to arrest of the defendant's person, and was merely a means of compelling appearance. (A) 'The Bold Buccleugh, 7 Moo. P. C. C. 267. [1) The statutes conferring and regulating Admiralty jurisdiction arc:— High Court, 13 Ric. 2, Stat. 1, (• 15 Ric. 2, c. 3: 3 80 LIABILITY. fide purchaser without notice (w), by the owner's death (n), or bankruptcy (o), or, if the shij) is owned by a company, by a winding-up order against the company (y;), or by a sale under the order of a foreign Court in which the pro- ceedings are not in rem{<]). The injured party must, however, take proceedings to enforce his right within a reasonable time, or he will lose the benefit of his lien (r), at any rate where there are circumstances which render its enforcement inequitable. Where the defendant ship was owned by a company, and many of the shares in the company had changed hands since collision, this was held not to constitute a sufficient change of interest to render the enforcement of the lien inequitable (s). The indelible character of the lien for damages is analogous to the noxa caput sequitiir of Roman law: and supports the theory that by the ancient doctrine of the Admiralty it was the ship that " did the wrong " {t). To what the The lien attaches to the hull of the ship, and also to her lien attaches, i i i i -i c -i n^^ ^ -i t • tackle, apparel, and im-niture. Tlius her sails and rig- ging {n)j and her equipment for a fishing voyage {jl), have been held subject to it. But it does not attach to the wearing apparel of passengers on board her (//). The lien exists after the shij) has been wrecked and broken in pieces, and it may be enforced against the fragments (s). & 4 Vict. c. 65 ; 21 Vict. c. 10. Navigation Co., L. R. 20 Eq. 325 ; County Courts : 31 & 32 Vict. c. 71 ; In re Rio Grand do Sol. Steamship 32 & 33 Vict. c. 51 ; 38 & 39 Vict. Co., 5 Ch. D. 282; T/ie Cella, 13 c. 50. Vice-Admiralty Courts : 26 P. D. 82. & 27 Vict. c. 24 ; 39 & 40 Vict. {rj) The Charles Amelia, L. R. 2 c. 59 ; 53 & 54 Vict. c. 27 (Colonial A. & E. 330. Courts). Scotland : 11 Geo. 4 & 1 (r) In The Enropa, 2 Moo. P. C. Will. 4, c. 69. Ireland : 30 & 31 C. N. S. 1, the lien was held to be Vict. c. 114 ; 39 & 40 Vict. c. 28 ; subsisting three years, and in The 40 & 41 Vict. c. 56. Kong Magnus, 89 "L. T. 254, eleven {m) The Bold Bnccleugh, 7 Moo. years, after the collision. See also P. C. C. 267 ; The Nymph, Swab. The Fairport, 8 P. D. 48. 86 ; The Mellona, 2 W. Rob. IG. (s) The Kong Magnus, supra. (w) See I'hillips v. Jlomfray, 24 (t) See above, p. 76. Ch. D. 439, and cases there cited, \u) The Alexander, 1 Dods. 278. as to an action at law in this case. ix) The Dundee, 1 Hagg. 109. (o) The Young Mechanic, 2 Cur- (.?/) The WiUlam III.,!,. R. 3 A. tis, 404 (Ainer. case). & E. 487. {p) In re Australian Direct Steam (r) 'The Neptune, lHagg. 227,238 DAMAGE lien: TO WHAT II AITACIIES. 81' Cargo on board the ship arrested forms no pai-t of the Car/), where the ship had without consent been repaired and increased in value after arrest, it was held that the owner was entitled to have her released upon payment into Coui't of her value at the date of the arrest. Where several claimants for damages in several actions in rem in respect of the same collision obtain successive judgments against the ship, their respective liens are en- forceable against the ship in the order of the judgments (z). A plaintiff who institutes his action after another has been instituted, but before judgment, is entitled to damages rateably with the plaintiff in the earlier action (a). In the case of a ship owned by a company in liquidation the damage lien will be enforced in priority to the claims of the general creditors (b). If all parties are before the Court, an order will be made in the liquidation for pay- ment of the amount of the lien. But if parties interested in the ship, as mortgagees in possession, are not before the Court and cannot be brought before it, leave must be ob- tained in the winding-up to proceed in Admu-alty. An {x) But see per Parke, B., on this case in The Hold Biiccleugh, 7 Moo. P. C. C. 267, 285. (y) The «. Olaf, L. E. 2 A. & E. 360. It does not apjioar that The Aline was cited. (z) The Saracen, 6 Moo. P. C. C. 56. As to a stay of proceedings in such a case to enable the defendant to limit liability, 'The Aliie Holme (first action), 47 L. T. N. S. 309. (ff) 2'he Clara, Swab. 1. See The Union, 3 L. T. N. S. 280 : infra, p. 215, as to this being a lex fori. il)) In re Australian Birect Steam Naviyation Co., L. E,. 20 Eq. 325 ; In re Hio Grande do Sul Steamship Co., 5 Ch. D. 282. See also In re 'Traders^ North Stafordshire Carrying Co., L. R. 19 Eq. 60, as to the right, after winding-up order, to sell a barge for tolls due before winding-up ; and see also as to enforcing a necessaries lieu in case of bankruptcy, IlaUidai/ v. Harris, L. R. 9 C. P. 668. DAMAGE ],IEN : WHEN IT EXISTS. 85 arrest of the ship by tlio Aibniralty Court after a winding- up order has been made is void, unless leave to proceed in Adnimilty lias been obtained in the winding-up (r). In Ireland an injunction to restrain an Admiralty action in rem was refused by a Court of Bankruptcy, except upon payment into Court of the amount of the claim and an undertaking being given as to costs {(/). Though it has not been expressly so held, it appears ^Vhether the that the lien attaches not only to a ship that strikes and ^jj" ^ ^^^j.^ jg injures another, but to a ship by the negligent navigation damafre, but of which a collision is caused between two other vessels (c) . By vii-tue of 10 & 11 Vict. c. 27, it attaches to a ship that injures a pier or harboiu- works (./), and probably it attaches in all damage cases where the Admiralty has jurisdiction by statute (ry) ; but not where the plaintiff is suing the owner of the carrying ship for damage to his goods under the provisions of 24 Vict. c. 10, s. 6. In this case the Act gives a right against the ship, but no lien(/'). For loss of life, since no action lies in rem {infra, p. 122), there is no lien. It has not been expressly decided whether the lien for Whether the damage attaches in cases where the Admiralty Court has attaches when jm-isdiction only under the modern statutes, 3 & 4 Vict, the Admiralty c. Go, and 24 Vict. c. 10, If the collision occurs within jurisdiction the body of a county, or if one ship is injured by the o^i^^^*^*'^*° negligence of those in charge of another ship, without (c) See note (i), ante, p. 84. (d) In re T. C, Ir. Rep. 11 Eq. 151. And see T/ie John and Man/, Swab. 471. {>') See The Sisters, 1 P. D. 117 ; The Wheatsheaf and The Intrepide, 2 Mar. Law Cas. O. S. 292 ; The Industrie, L. R. 3 A. & E. 303 ; The Enerqtj, ihid. 48 ; 'The Batavier, 9 Moo. JP. C. C. 286 ; The Du/hij Grand, Ad. Ct. April, 1884, infra, p. 137. (/) The Merle, 31 L. T. N. 8. 447 ; Cf. The Czar, 19 Low. Canada Jurist, 197 (damage by ship's anchor to telegraph cable). (g) See The Clara Killain, L. R. 3 A. & E. 161 ; The Si/lph, L. R. 2 A. & E. 24 ; The U'hla, 3 Mar. Law Cas. O. S. 148 ; The Chase, Stuarts' (Canada) Rep. 361. [h) The I'ieve Siiperiore, L. R. 5 P. C. 482. But see The Fatria, L. R. 3 A. & E. 436, 459. As to the effect in such an action of sect. 7, see The Victoria (No. 1), supra, p. 82. 86 LIABILITY. Lien by- statute, in case of in jury- to a pier, &c. Bail takes place of ship arrested. actually being in contact with the latter (/), the ^vrong- doing ship may be sued in Admu-alty in rem, and there are strong grounds for holding that in these, as in other cases of damage, the lien attaches (/■•) . But it is not in every case in which the ship may be sued in rem that the lien attaches (/) ; and there are eases in which the Ad- miralty Court has statutory jurisdiction, as in the case of damage by a ship to a pier (;>/), and certain collisions within a county, in which it does not appear to have been expressly decided that the lien attaches. It has been held that the liability created by 10 & 11 Yict. c. 27, upon the owner of a ship that injures a pier or harbour works, and upon the ship herself, involves a maritime lien upon the ship(«). A ship will be released after arrest upon money being paid into Court or bail being given in a sum sufficient to satisfy the plaintiff's claim or to the amount of the defen- (i) As in The Industrie, L. R. 3 A. & E. 303 ; The Energy, ibid. 48 ; The Sisters, 1 P. D. 117 ; and cases cited supra, p. 27, note {u). {/c) The Two Ellens, L. R. 4 P. C. 161, 167 ; The Mary Ann, L. R. 1 A. & E. 8, 12 ; The Sara, 12 P. D. 158, 162 ; 14 App. Cas. 209, 216. In America it has been held that a ship may recover in Admiralty the value of an anchor and chain from •which she had to slip to avoid another ship driving towards her : The Perkins, 2 Mar. Law Cas. 0. S. Dig. 548 ; and that no lien attaches to a ship for damage to a bridge : 1 Parsons on Sh., ed. 1869, p. 532 ; but the owner of a pier improperly built in a fairway was sued in Admiralty for damage to a ship sunk by collision with it, no ques- tion being raised as to jurisdic- tion: Atlee V. The Packet Co., 21 Wall. 389. In another case a ship was sued in Admiralty for injury caused by her waq), which was negligently stretched across a river : McC'ord v. The Steamboat Tiber, 6 Bissel, 409. As to Admi- ralty jurisdiction in case of collision between a raft and a ship, see The W. T. Clark, 5 Bissel, 295. By the Supreme Court it was held that the owners of a ship from which fire had been communicated to a ware- house on shore could not be sued in Admiralty : The Phjmouth, 3 Wall. 20. The Royal Court of Jersey has held that personal injury caused by the breaking of a ship's warp by improper straining is not within its Admiralty jurisdiction: The Ciiy- niis, 2 L. T. N. S. 196. (l) See The Piece Superiore, L. R. 5 P. C. 482; The Hvinrich Bjorn, 10 P. D. 44; 11 App. Cas. 270. [m) As in The Uhla, 3 Mar. Law Cas. 0. S. 148 ; The Excelsior, L. R. 2 A. & E. 268; The Albert Edward, 44 L. J. Ad. 49 ; The Maid of the Mist, 21 W. R. 310. decided under the Court of Admiralty (Ireland) Act, 18C7, s. 29. («) The Merle, 31 L. T. N. S. 447. This case was overruled upon another point in River If'car Com- missioners V. Adantsou, 2 App. Cas. 743. DAMAGE LIKN : SUBSTITUTION OK HAIL. S7 dant's liability («). In such a case the money in Court, or the amount of the bail, takes the place of the ship, as a security for what may be recovered in the action, and tlie ship herself is free (y;). Though it has been held, where the amount for which bail was given was insufficient to provide for damages and costs, that the ship may be re- arrested to satisfy the claim for costs (q), it is doubtful Avhether a re-arrest to satisfy damages where the amount of the bail is insufficient, would be allowed (r). Where bail is given in an amount beyond the owner's statutory liability, the sum recoverable is, nevertheless, limited to the statutory amount (.s) . Wliere excessive bail is required the amount will be moderated upon an application to the Court ()'), and in recent years the additional expense of procuring excessive bail has been ordered to be jiaid by the party requiring it. Commission paid on procuring bail cannot, however, be recovered as part of the defendant's costs, though it may be recovered as damages where it is shown that the ship was arrested maliciously or with gross negligence (?/). Where after judgment in a damage action, in which Insufficient bail for an insufficient amount had been given and the remedy^ ship released, judgment was given against the same ship against in an action for necessaries, and the ship was sold in the of ship, necessaries action and the money paid into Cornet, it was held that the plaintiffs in the damage action could not be (o) As to the practice touching bail, see Williams and Bruce, Ad. Pr. 2nd ed. p. 282 seq. {p) See Roseoe's Ad. Pr. 2nded. 1.52, 1.5G. As to security to answer a counter-claim where the defendant' s ship is not arrested, see TJic Aliic Holme (second action), 47 L.T. N. S. 307 ; 24 Vict. c. 10, s. 34. As to the proper mode of obtaining judgment •where there is default of api)ear- ance, see T/ic Avcuir, 9 P. D. S4. {(l) The Freedom, L. ii. 3 A. i: E. 405 ; and see The Flora, L. R. 1 A. k E. 45, (>■) The Kalamazoo, 15 Jur. 885 ; The Volant, 1 W. Rob. 383 ; The Temiscouata, 2 Sp. E. & A. 208; The Fnlk, infra. (s) Tlie Ditchesse de Brabant, Sw. 264 ; The Chieftain, 32 L. J. Ad. 106 ; The Staforihhire, L. R. 4 P. C. 194. (<) Owen V. The Providence, Ad. Ct. 1766 ; Marsden's Ad. Ca. 13. See also The Chieftain, Br. & L. 104 ; The Victor, Lush. 72. {>() The Collingrove, 10 P. D. 158. 88 LIABILITV. Assignment of lien. Discharge of the lien. })aid out of the proceeds of the sale of the ship to the prejudice of the claimants in the necessaries action {x). The assignee of a right to proceed in. rem for repairs is entitled to enforce his right against the ship, notwith- standing a composition deed executed by the assignor after the arrest of the ship ; and although at the date of the assignment the ship was not under arrest, and the right of the assignor was inchoate only (//) . It seems that the right of an assignee of a lien for damage would he the same. The lien for damage which, we have seen, attaches at the instant of collision (s) adheres to the ship until it is discharged by being satisfied, by laches («), or in any other way in which by law it may be discharged (i). It seems that it may be enforced after tlie death or bankruptcy of the wrongdoer, or of the person liable at law for the acts of the wrongdoer, and, in the absence of laches, it is not barred by the Statute of Limitations or by lapse of time (c) . From the above statement as to the natm-e of the mari- time lien for damages, it wdll be seen that proceedings against the ship in Admiralty provide the sufferer by collision with a remedy in many cases where he would otherwise be without redress ; as where the owners of the (.r) T/ie Falk, 4 Asp. Mar. Law Cas. 592. (y) The Wasp, L. R. 1 A. & E. 367. The principle of this decision would not appear to be affected by The Jfcinrich Jijorn, 11 App. Cas. 270. See as to assignment of choses in action, S. C. J. Act, 1873, s. 2.5, sub-s. 6 ; and as to the effect of bankruptcy therein. Bankruptcy Act, 1883, 8. 44; Ke Tillctt, Exp. Kingscote, 60 L. T. N. S. 575. As to assignment of the lien, see The Merle, 31 L. T. N. S. 447; The ^'elv Eagle, 4 Not. of Cas. 426 ; The Janet Wilson, Swab. 261 ; The Louisa, 6 Not. of Cas. 531. [z) The Bold Buceleugh, 7 Moo. P. C. C. 267 ; The Mary Ann, L. R. 1 A. &E. 8, 11. {a) See per Hellish, L. J., The Tuo Ellens, L. R. 4 P. C. 161, 169. {b) It is discharged by sale of the res under process of the Court : The Saracin, 2 W. Rob. 451 ; by pay- ment and acceptance of the amount of the claim : The WUliain Money, 2 Hag. 136; or by acceptance of bail, whether the amount of bail is sufficient to recompense the sufferer or not : The Kalamazoo, 15 Jur. 885 , supra, p. 87. [e) Reaper Mellish, L. J., L. R. 4 P. C. 170 ; The Kong Magnus, 63 L. T. N. S. 715. SHll' MAltl.K WIIKN OWNEK NOT LlAHl.K. 89 wrongdoing- slilp are resident abroad, dead, or bankrupt, or for other reasons cannot bo sued personally. The question referred to above {d) has arisen in several Whether the cases, — namely, whether the ship may be liable in pro- ij^bie where ceedino^s in rem where the collision is not caused by the t^e owner is ^ not* fault of the owner or his agents, and where, consecpiently, he could not be made liable at law. In Tin- Druid {e), Dr. Tjushington said, that the liability of the ship and the responsibility of the owner were convertible terms. And in some later cases the liability of the ship and the re- sponsibility of the owners have been spoken of by the Privy Council as if they were always concui-rent (,/') In a case before the Court of Appeal it was expressly said tliat " the liability to compensate; must be fixed not merely on the property but on the owner through the property " (g). On the other hand there are decisions in Admiralty holding the ship liable where the owner could not be sued at law (//). Thus where a yacht was placed by her owners in the Ship in hands hands of an agent for sale, and whilst in his possession, and "aief*^^ owing to his negligence in not striking her top gear, she di'ove from her moorings and injm-ed another ship, it was held that the yacht was liable. The i)roceedings being i)i rem, Dr. Tjushington said that the common law doctrine [d] Supra, p. 7'). For further below, it was so held in The Kep- information upon this .subject, sec tune the Second, 1 Dods. Ad. 467 ; a pamphlet entitled " Maritinie and TAe 6-'»Wrtwo, 3 Hag. Ad. 169, Lien," by the lion. John W. Mans- where the vessel was condemned field, Loiidon, Stevens & Sons, 1889. for the fault of a compulsory pilot. {e) 1 W. Kob. 391. It appears These decisions were, however, not from The TafiiKmia, 13 P. I). 110, followed in subsequent cases: see 116, that in the opinion of Sir J. The Proteetor, 1 AV. Kob. 4.5 : The Hannen, by "owners" Dr. Lush- Maria, ibid. 95. In The Druid, 1 ington meant to include charterers. W. Eob. 391, Dr. Lushington said (/') 'The Diana, Stuart \. henion- that the liability of the ship, and (ler, 4 Moo. P. C. C. 11, 19; The the responsibility of the owners, AmaHo, 1 Moo. P. C. C. N. S. 471, were convertible tenns. "Whether 484 ; The JIat/ei/, L. R. 2 P. C. this dictum is to be understood as 193; The Orient', 3 P. C. 696, 703; referring to the ;;/•« hue vice owner The M. Moxham, 1 P. D. 107. or to the general owner, its accu- (g) Fer Brett, L. J., The Parle- racy in law seems to be equally mod Beige, 5 P. D. 197, 218. doubtful. Of. The Longford, 14 P. (A) Besides the cases mentioned D. 34. 90 LIABILITY. Ships under charter. as to the non-liability of her owner for the negligence of an independent contractor had no application (/). At common law the owner would not be liable in such a case(A-). Where a vessel was chartered to the French Government, and whilst in tow of a steamship, which the charterers ordered her to employ, by the fault of the steamship, went foul of a third vessel, Dr. Lushington held that, the proceedings being in rem, the maritime lien for damage attached, notwithstanding any prior contract between the owner and a third party. "It is impossible," he said, " that because a person has entered into a voluntary con- tract by which he is finally led into mischief, that that can relieve him from making good the mischief which he has done." And he said that this was the case though the ship has been demised by the owner to another who has the appointment of the master and crew (/). The ease here anticipated by Dr. Lushington afterwards came before Sir R. Phillimore, and was decided in ac- cordance with the above opinion of Dr. Lushington. In 77/0 Lemin(jfo)i [id) the vessel was chartered by her owners to a person upon terms by which the charterer had the sole and absolute management of her and the appoint- ment of her crew. The charterer was to pay all expenses connected witb the ship, and her owners were to receive one-fifth of her gross earnings. It was held that the ship was liable in proceedings in rem. Sir R. Phillimore said : — (i) The Ruby Queen, Lush. 266 ; 8ee also The Orient, L. II. 3 P. C. 696. {k) See per Blar;kburn, River Wear Commissioners v. Adamson, 2 App. Cas. 743, 768; Eglimjton v. Norman, 46 L. J. Ex. 557. {I) The Ticotideroga, Swab. Ad. 215. "There is nothing in this judgment which leads to the con- clusion that Dr. Lushington in- tended to retract what he said in The Druid:'''' per Sir J. Hannen, The Tasmania, 13 P. D. 110, 117. See also a dictum of Dr. Lushington in TheMdhna, 3 W. Hob. 16, 21, as to the liability of the ship with- out regard to the question whether the owners at the date of the arrest were the owners at the date of the collision. (w) 2 Asp. Mar. Law Cas. 475. SHIl' LIAKLE WHEN OW.NKK NOT IJAKLK. 91 "A vessel jilaced by its real owners wholly in tlie control of cliarterers or hirers, and employed by tlie latter for the law^ful purposes of the hiring, is held liy tlie charterers as })ro hue vice owners. Damage -svi'ongfully done by the rr.s while in possession of the charterers is therefore damage done by the owners or their servants, altliougli those owners may be only temporary. Vessels suffering damage from a chartered ship are entitled, y^r/wm facie, to a maritime lien upon tliat ship, and look to the res as a secm-ity for the restitution. I cannot see how the owners of the res can take away that security by having temporarily transferred the possession to thii^d parties. A maritime lien attaches to a ship for damage done through the negligence of those in charge of her, in whosesoever possession she may be, if that damage is inflicted by her whilst in the com'se of her ordinary and lawful employ- ment, authorized by her owners. Whether the damage is done through the default of the servants of the actual owners, or of the servants of the chartered owners, the ns is equally responsible, provided that the servant making default is not acting unlawfully or out of the scope of his authority " (//). The liability of the owner in this case has been com- pared to that of the holder of a bottomry bond executed before a collision for which the ship is in fault. In such a case the damage lien takes precedence of the bottomry lieu. The bondholder is, " so to speak, a part owner in (w) See also The Emily, 67 L. T. or his agent's, possession : The 214, where a barge, worked by the Collier, L. R. 1 A. «fc E. 83 ; 'The hirer's servants, and not by the Waterloo, 'Z Dods. Adin. 433. In owner or his servants, was held France it seems that a ship in the Biibjeot to arrest ; cf. also Thel'hche, position of The Lembtgton is liable Ware, "263. The charterer of a ship to the sutferer by collision as in the situation of The Lem'mijton, " guarautie speciale : " Manuel de supra, p. 90, is held to be entitled Droit Commercial, par P. Bravard to owner's salvage reward: The Veyiieres, 7th ed. par Ch. De- Scout, L. R. 3 A. \: E. .')12 ; but the mangeat, p. 343. Sec also below, actual owner is entitled to owner's p. 184, as to the liability in France salvage, where, notwithstanding of the ship as distinguished from the charter, the ship remains in his, the owner. 92 LIAHILITY. interest at the date of the colHsion, and the ship in which he and others are interested is liable to its value at that date (of the collision) without reference to his claim " (o). The Tasmania. The liability of the ship, as distinguished from that of the owner, was lately under discussion in TJie Tasmania {p). The conclusion arrived at in that case by Sir James Hannen was, that the damage lien is not absolute ; that it does not arise upon the mere fact of collision through the negligence of those on board ; that it arises only where " the navi- gators can be identified with the owners or their agents ;" and that by the maritime law, " charterers to whom the government of the ship is voluntarily handed over, repre- sent the owners so as to bind the ship." There is, he said, a priitid facie liability of the ship, which may be rebutted by showing that the injury was done by the act of some one navigating the ship not deriving his authority from the owners ; and by the maritime law, charterers in whom the control of the ship has been vested by the owners are deemed to have derived their authority from the owners so as to make the shi}) liable for the negligence of the charterers who are jjro hdc rice owners. From these pre- mises he di'ew the conclusion, that whatever is a good defence for the charterers against the claim of the injured person is a good defence for the ship, as it would have been if the same defence had arisen between the owners and the injured person. The facts of the case to which Sir James Ilannen applied these principles were these : — The plaintiff, the owner of the smack Sfrirer, sued the tug Tasmania, in rem, for sinking the smack whilst towing her into Yarmouth harbour. The collision was caused entirely by the fault of the master of the tug. T/ic Tasmania was owned by (o) Per Jervis, C. J., The Bold by her owner, Wells v. Osmond, 2 liilccleugh, 7 Moo. P. C. C. '2G7, Raym. 1044. 285. Cf. the liability of the ship {p) 13 P. D. 110. for wages of a crew not employed SHIP LIABLE WHEN OWNER NOT LIABLE. 93 one Watkins, and she was cliartered by tlie Great Yar- mouth Steam Tug Company at -'30/. per week, the charterers finding a cai)tain and tlie owners the crew. The phiintiii', wlio was a director of the tug company, had been in the habit of employing the company's tugs to tow his smacks upon terms published by the company, one of which was tliat the comf)any were not to be liable for damage to smacks when in tow of their tugs. It was held that the plaintiff employed The Ta.wiatiu/ upon the terms published by the company with reference to their own tugs ; that in contracts made upon the published terms there was neces- sarily implied an agreement that tlie tug should not be liable in rem; and that consequently T//e la.s»i(f>iia was not liable i)i rem, no damage lien having arisen. Having regard to the above decisions, it seems that, notwithstanding diefn to the contrary, a person injured by a collision can in some cases recover against the owner of the ship that has done the damage by proceedings in Admiralty /;/ rem where he could not recover at common law. But until the point has been considered by a Court of Appeal, the law cannot be considered as settled (q) . In America, the liability of the ship, as distinguished The liubilitr from the personal liability of the owner, has been can-ied distinsuilhed^ fui-ther than it has ever been carried by the Courts of this from the ic< /^i./\ Oi- T owner) ia country. In a case before the Supreme Court (/•), Stor}^ J ., American quoted with apjiroval tlie following passages from a judg- ^'^^• ment of Marshall, C. J. : — "This is not a proceeding against the owner ; it is a proceeding against the vessel for an offence committed by the vessel." And again, quoting from another case, he says : — " The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing." This, it will be (q) In fralthani v. .Viili/nr, iloore, orders, had piratically seized the 776, the Admiralty Court was pro- plaintiff's ship. hiV)ited wluro it proposed to exer- (*) 2'lie Mahlc Adhcl, 2 How. 210, cise jurisdiction in the case of a 234. shipwhosecrew, againsttheo\STier's 04 LIABILITY. Instance of the ship being alfeeted bv the fault of persons for ■which the oTTuer is not answerable. By the mari- time law ship and owners liable for damage caused by negligent navigation. observed, is not the view taken by the Courts of this country (s). An instance of the ship being affected by the fault of those on board, for which her owners are not Hable at law, occurs where a collision is caused by the fault of both ships, and the fault of one of them is the fault of her compulsory pilot. In this case her owners can recover half, but only half, their loss against the other ship and her owners (t) ; and that only subject to the rule, usual in such cases, of having to bear their own costs {u). The fault of the pilot affects the ship to this extent — that it brings into operation the rule as to division of loss ; but it would seem not to be contributory negligence such as would affect the owners at law (x). By the maritime law, as administered in the Admiralty of this country, the owners of a ship that negligently damages another on the high seas are liable for the negli- gence of their servants on board such ship, and the damage lien attaches to the ship. Thus Lord Stowell, in The Dundee (//), said that " negligent navigation causing damage to another ship the maritime law considers as a derehction of bounden duty, entithng the sufferer to repa- ration in damages. The ancient general law exacted a full compensation out of all the property of the owners of the guilty ship, upon the common principle applying to per- sons imdertaking the conveyance of goods (~), that they (.s) In America the ship is liable for the master's contracts in cases where she would not be liable by English law ; cf . The Nevemink, 5 Blatch. C. C. R. 539 ; Act of Con- gress of .'ird March, 1851. Upon the question whether the owners of a chartered ship are liable in pro- ceedings in rem for "torts com- mitted by the ship," the Supreme Court was equally divided in T/iorp V. Hammond, 12 Wall. 40S ; see also Tlie Clarita and The Clara, 23 Wall. 1. it) The Hector, 8 P. D. 218. (?() The Hector, 8 P. D. 218 ; The Rlghords Minde, 8 P. D. 132. [x) See Spaigltt v. Tcdcastle, 6 App. Caa. 217. (//) 2 Hag. 120. {z) "I should rather say under- taking the management of any- thing likely to do mischief, unless attention and vigilance is used by those who manage it:" per Lord Blackburn, Stooinvaart Maat.schappy Nedcrlund v. F. and (). Steam Navi- gation Co., 7 App. Cas. 795, 812. on- M ARITIME LAW : COLLISION t PILOT. 95 were answcraLli; for tliu conduct of the persons whom they employed, and of whom the other parties who suffered damage know nothing, and over whom they had no con- troL To this rule our own country conformed " (a). It is the maritime law, and not the law of the flag, that governs in such a case. Thus, where the owners of a cargo on. hoard a ship sailing under the Dutch flag sued the owners of another Dutch ship for loss of cargo in a collision on the high seas caused by the fault of the latter ship, it was held that the Dutch law (by which, it was alleged, the owners of the wrongdoing ship were not liable) was not applicable to the case {b). In an unreported case before the Admiralty Division the Collision ■"■ T , p • 1 • abroad : 0\„j question arose whether, where two foreign vessels were m fli^t of law. collision at the mouth of a Spanish river, proceedings in rem could be taken against one of them in the English Admiralty, it being alleged that by Spanish law the ship- owner is not answerable for the wrongful acts of those in charge of his ship. Xo decision was arrived at, the case going off upon a point of pleading (c). The suggestion that the law of the place where the collision occm-red is to prevail, and is to exclude the damage lien, is a novel one, and would probably not prevail {d). Notwithstanding some early decisions to the contrary {e) , Neither ship it is now settled that where a collision is caused by a pilot SJablelor'^ placed in charge of a ship by the law, the fault of the fault of a pilot does not affect the ship so as to make her liable in pXt!" ^ Admiralty, nor are the owners answerable for the pilot's negligence at law. It must not, however, be assumed that the pilot's negligence can under no circumstances affect the ship. We shall see that the rule of division of loss (a) See also T/ic Ticonderoqa, {c) The Muchbi, Ad. Ct. Nov. Swab. 215; The Mellona, 3 W. 1884. Rob. 16,21; TZ/cXeow, 6 P. D. 148. {d) See further as to the law (i) Chartered Mercantile Bauk of applicable in such a case, below, India, London, and China v. Nether- pp. 212—214. lands India Steam Xariijation Co., {e) See infra, p. 218, note (rf). 10 Q. B. D. .021. 9B T.TAUIT.ITY. Liability for damage by a ship ashore, sunk, or abandoned. applies where the fault on the part of the ship is that of her compulsory pilot (./') ; aud in the following cases it appears to have been held that a tug may be liable for the fault of the pilot of the tow. In The Manj {(j) it was held that a tug towing a ship in charge of a compulsory pilot was liable for a collision between the tow and a third ship caused entirely by the tug acting in obedience to the orders of the pilot, and without negligence on her own part or on the part of the officers or crew of the ship in tow. In this case, however, the value of the decision as to the liability of the tug for the pilot's negligence may be affected by the fact that the tug was herself in fault. Where a collision between a ship in tow and a pier was caused by an improper alteration in the course of the tug, without orders from her tow, which was in charge of a compulsory pilot, it was held that the tow was liable. But here, also, it would seem that the owners of the tow would be liable at common law ; for it was the duty of the tug to keep clear of the pier, even though the pilot gave no orders {h) . The general question of liability, when one of the ships is in tow, is considered in another chapter (Ch. VIII.). Owners are not liable for damage caused by a ship which they have abandoned, if the abandonment was justifiable. But if the abandonment, though necessary for the safety of those on board, was the result of negligence for which the owner is responsible, it seems that he remains liable notwithstanding the abandonment (/). So long as a ship (/) See The Hector, infra, p. 142. Ig) The Mary, o P. D. 14. (A) The Simpiasi, 5 P. D. 241 ; see iurthor as to the duty of the tug, infra, p. 198; and as to the owners not being liable for the fault of a compulsory pilot, infra, p. 227. (i) Tirnirn v. Mallet, 5 C. B. 599 ; White v. Crisp, 10 Ex. 312. These cases were decided on de- murrer, and some doubt was thrown upon them in The Douqlas, 7 P. D. 1 ;j 1 . See also Rex v. Watts, 2 Esp. 675 ; White v. rhillips, 15 C. B. N. S. 245 ; Dimes v. ]'ttle>j, 15 Q. B. 276. By abandoning to his in- surers, the owner of a ship sunk so SUNKEN Mill HARBOUR ArTHORlTIES. 97 remains in tlio owner's possession ho is liable for daniago to anotlier sliip striking her, though she is sunk or ashore, if such damage was caused by the absence of proper liglits or precautions on his part. It has been lield to be the duty of tliose in charge of a vessel sunk in a fairway to mark her position with a buoy (/■), and if in a tideway with a buoy that will watch (/). ]jut if the owner or person in possession of the wreck proves that the wreck, though unmarked and unlit, was so througli no negligence on his part, he is not liable. Thus, in The DoiKjlas (w), it being proved that notice of the wreck had been given to the river authority having power to remove wrecks, it was held that the owner was not liable for a collision caused by the wreck being imlit. In America it has been held that no liability attached to a tug for damage caused to a third ship by lier tow, which had been sunk without fault on the part of the tug(;/). The liability of a dock, harbour, or river authority with power to remove WTecks for damage by a wreck is con- sidered below (o). The principle which exempts a ship and her owners Liability of from liability where the damage results entirely from the jjarbour negligence of a compulsory pilot in charge of her, applies authority, equally where the ship is being navigated under the orders of a dock or harbom'-master empowered by the Legisla- tm-e to direct the movements of vessels within his dock or harboui- {}>). In such cases the dock or harbour-master is as to obstruct a harbour does not escape liabiHty for j)ayment of the expenses of raising' the ship under 10 & 11 Vict. c. 27, s. 5G ; I'ylhiy- ton V. Xuniiaii, 46 L. J. Ex. 557. (k) ILarmond v. Fearson, 1 Camp. 515 ; Hancock v. York, ^-c. Hail. Co., 10 C. B. 348 ; Gilbert v. Cor- poration of Triniti/ House, 17 Q. B. D. 795 (damage by stump of beacon). M, (/) See Joliffc V. Wallasey Local Board, L. R. 9 C. P. 62. (w) 7 P. D. 151. («) The Swan, 3 Blatchf. 285. (v) pp. 99, scq. Ip) See The Cynthia, 2 P. D. 52 ; The Excehior, L. R. 2 A. & E. 268. la Edwards, Robertson ^- Co. V. Falmouth Harbour Commissioners, 'The lihosina, 10 P. D. 24, ou app. ib. 131, it was assumed that the harbour authority was liable. H 98 LIABILITY. Omission by harbour authority to remove wreck, liable ; and the dock or harbour authority would, it seems, also be liable to the whole extent of its assets {q). The liability would be the same, whether the dock or harbour authority was a corporation or body trading for profit, or whether it merely had power to levy tolls and apply them towards the maintenance and improvement of the dock or harbour (r). Thus, for a collision in a dock caused by the improper influx or withdrawal of water, improper berthing of ships, or negligence of a dock-master in regu- lating the movements of a vessel in the dock, full damages might, it seems, be recovered against the proprietors or trustees of the dock {r). Such would appear to be the law ; but, so far as the writer is aware, in no reported case has the question arisen. It may be contended that the principle of the decision in Merse// Docks and Ilavhour Board v. Gibhs (.s) does not go the length here suggested. The negligence in that case consisted in the omission to remove a mud-bank upon which the ship of the plaintiff grounded, and thereby received injury. It may be thought that negligence of a dock-master causing a collision is of a different character, and that the same result as to the lia- bility of his employers would not follow (;"). But the opinion of the judges in Mersey Bocks and Harbour Board V. Gibhs, delivered by Blackburn, J., does not suggest any sucli distinction, and it is submitted that there is none. In the case of a corporation having its liabilities defined or limited by statute, or of unpaid trustees of a navigable river, having no power to levy tolls, the result would be different (a). It is doubtful whether harboiu* and lighthouse autho- rities, having power under 40 & 41 Yict. c. 16, to remove vessels sunk in harbours or waters within their jmisdiction, (q) The statutory limitation of liability not applying in such a case ; see infra, pp. 171, 178. {>■) See Mersey Docks and Harbour Board v. Gihbs, L. R. 1 H. L. 93 ; The Excelsior, L. R. 2 A. & E. 268, 270. (.s) L. E. 1 H. L. 93. {{) See Metcalfe v. Iletherington, 5 H. & N. 719. («) Forbes v. Lea Conservancy Board, 4 Ex. D. 110. II AKllOl i; AUTHOKiriHS. UU are liable ior injiny sustained by a vessel striking against a wreck ■vvhieli they have neglected to remove. In T//e DougJm (u-), Brett and Cotton, L.JJ., suggested that they miglit be liable in such a case ; but in a subsequent case, Kay, J., declined to follow this suggestion ; though upon other grounds he held tliat in the case before liini the harbour authority was liable. The case (//) was as follows : — By a local Act (20 & 27 Vict. c. Ixxxix.) the harbour of Barrow was vested in the Furness Railway Company ; and powers were given to the company to levy rates within the limits of the harbour, and to buoy the harboiu" and the Piel channel leading thereto. By a sub- sequent Act (42 & 43 Yict. c. cxlvi.) it was provided that a moiety of the light dues payable by vessels using the har- bour should be applied in (amongst other purposes) buoying and lighting the Piel channel. The plaintifi's vessel struck against the wreck of a ship sunk in Piel channel, which the defendant company had taken possession of and partially removed under tlie powers of the general (Wrecks Removal) Act, 40 & 41 Vict. c. 16. It was held that the company was liable for the injury sustained by the plaintiff's vessel. It was contended that the general Act, 40 & 41 Vict. c. 16, which (sects. 4, 5) enacts that harbour and lighthouse authorities in certain cases " may " remove sunken vessels, imjiosed a duty on the defendant company to remove the wreck, and that having wrongfully neglected to do so, they were liable for the plaintiff's loss ; and a suggestion by Brett, L..J., in T//c Doughis {z) to this effect was cited. Kay, J., declined to hold the company liable on this ground, but held them liable on the authority of Mersey DoeJcs and Harbour Hoard v. Gibbs (ft), as being a corpora- tion empowered to reeei^■e payments from ships entering (x) 7 P. D. 151. (-) 7P. D. 151. (//) Bormont v. Fiinicss r.ail. Co., [a) L. K. 1 H. L. 93. II Q. B. D. 190. h2 100 LIABILITY. Duty of ■svharfiuger as to ships usina: wharf. Liability of harbour authority for damage by harbour master. the liarbour, part of wliicli payments were to be applied in maintaining and buoying Piel cliannol. In The Jloorcoclc {b) the duty of a -wharfinger in the Thames was held to extend to warning ships using his wharf of the uneven character of the river bed alongside his wharf ; and he was held liable for a ship breaking her back upon a mound of shingle alongside his wharf, upon which, at low tide, the ship necessarily grounded. In this case the river bed was not in the wharfinger's possession or under his control. In The Calliojoe (c) this duty was held to extend to a danger outside the berth alongside the wharf ; but this decision has since been reversed {cc) . In The Queen v. WilUaina (d) the executive government of a colony was held liable for injury caused to a ship which lay at a wharf of which they were possessed, and for the use of which they were paid by the shij)owner. The injury was done by a snag under water, of the existence of which the harbour authority, the government, were aware, but of which they gave no warning to the shi-p. The decision in this case followed those in Parnab// V. Lancader Canal Co. (e), and Merseij Docks and Harbour Board Y. Gibbs (/). A steamship lying in Falmouth harbour had occasion to be placed on shore to have her propeller examined. The harbour master, at the request of her owner or master, went on board and gave orders as to getting her under way with a view to beaching her. By his order the anchor was let go in an improper manner, so that the vessel grounded on it and was injiu-ed. The owners sued the harbour master and the harbour authorities as his emj^loyers. {h) 13 P. D. 157; UP. D. 64. (c) 14 P. D. 138. [cc] W. N. 1890, p. 220 ; Dom. Proc. cf. Wri(/ht v. Lethbridqe, 63 L. T. N. S. 572 ; infra, p. 102. {d) 9 App. Cas. 4-5. See also Parnahij v. LancaUer Canal Co., 11 A. k E. 223, aa to the common law liability of a canal company for damage by sunken craft. (c) 11 Ad. &E1. 223. (/) Ubi supra. In Scotland it was held, in a somewhat similar case, that no liability attached to the harbour autliority : Kidson v. M' Arthur, 5 Sess.Cas. 4th Ser. 936. wriAiiFiNGKRs; dock-owners; iiarijour authorities. 101 Bye-laws in the usual form, made under tlie powers of the local Act and the general Act (10 Vict. c. 27), empowered the harbour master to regulate the movements of vessels in the harbour, and required vessels to obey his directions. It was held that the harbour master was acting in his capacity of liarbour master when he gave the order to let go the anchor ; that the order was a grossly WTong and negligent order ; and that both he and his employers, the harbom' authorities, were liable for the negligence {g) . In The ApoUo (//), the foreman docksman, in the absence of the harbour master, gave permission, at the request of the ship's agent, to put the ship on the bottom of a lock leading into the harbom^, for the purpose of freeing her propeller, which had folded a rope. The ship was damaged tlu"ough sitting upon an old dock-sill, whose existence was imknown to the foreman docksman. An action against the dock company in respect of the damage sustained was dismissed by Butt, J., and his decision was affimied by a majority of the Court of Appeal (Lord Eshcr, M. R., dissenting), on the grounds that the user of the lock was extraordinary, that the plaintiffs were bare licensees, and that the foreman docksman had no authority to j)ei*mit such user of the lock by them upon any other terms. Butt, J., whose judgment had proceeded on substantially the same grounds, had also found that there was contribu- tory negligence in the master of the ship. The case is under appeal to the House of Lords. There has been no decision as to the liability of a port Liability of or harbour authorit}' for a collision caused by the insuiii- thoritTfor^" ciency or parting of moorings laid down by them for the insufficient use of ships. The owner of the ship which goes adi'ift ° ' would not, it seems, be liable in such a case (/), and upon [g) The lihosina, Edu-ards, Eobert- (») Toward v. I'lirkhtaii, Ship. son (Si Co. V. Falmouth II arbour Com- Gaz. 19th Dec. ISSo, where a t^hip miimioiwrii, lu 1'. D. 24; aflfii'med fast to one of the Clyde Tiiistoes' on appeal, 10 P. D. 131. buoys was held not iu fault for its {/() G Asp. M. C. 356, 402. carrying- away. See also 'J'hr Wil- 102 LIABILITY. Pilotage authorities not liable for negligence of licensed pilot. Liability in case of a collision with one of H. M. ships. proof of negligence it would probably be held that damages could be recovered against the port authority. It has been attempted, but without success, to make a pilotage authority liable for the negligence of a pilot licensed but not employed by them (/.■) . And in a very recent case, where the deputy harbour master of the de- fendants was also a pilot licensed by them, and was em- ployed by the plaintiffs to pilot their ship, which was lost by his negligence, the defendants were held free from liability on the ground that, though it was their duty to license pilots, they were not authorized by their statutes to enter into pilotage contracts, or to employ a person as pilot for a particular vessel (/). But in another case in Scotland, where the loss was caused by the fault of a boat- man, not licensed as a pilot, employed by the harbour trustees to conduct a ship, the trustees were held liable (;;?). In some cases the Act of Parliament constituting the pilotage authority expressly provides that it shall not be liable for damage caused by negligence of pilots licensed by them (n) . In the case of damage done by a Queen's ship, the legal responsibiHty attaches to the actual wrong-doer alone (o). If the ship is properly in charge of an inferior officer, the captain is not liable in a ci^dl action (^;) ; nor is a pilot liable for a wrong order given b}^ the officer in com- mand {q). The appointment of all officers being with Uam Lindsay, L. K. 5 P. C. 338 ; The Ambassador, cited 2 P. D. 37 ; The Jloiikseaton, 14 P. D. 51. {/:) Dudman v. Brown and Buhlin Port and Bochs Board, Ir. Rep. 7 C. L. 518. (/) Shaw, Sarin tj- Albion Co. v. Timaru Harbour Board, 62 L. T. N. S. 913 ; 15 Ap. Ca. 429. (»?) HoJman v. Irvine JTarhour Trustees, 4 Sess. Ca. 4th ser. 400 (Rettie^. (w) E.g., 25 "Vict. c. 29 (Local), s. 43 (Brean Down) ; 25 Vict. c. 31 (Local), s. 65 (Berwick-npon- Tweed). [o) The Mentor, 1 C. Rob. 179 ; The Athol, 1 W. Rob. 374; The Voleano, 2 W. Rob. 337 ; The Bir- hrnhead, 3 W. Rob. 75 ; and The Bcllcrophon, 3 Asp. Mar. Law Cas. 58, are instances of actions against Queen's ships. {p) Nicliolson x.Mounsey, 15 East, 384. See The Ci/hcIr, 3 P. D. 8 ; Wright V. Lethbridge, 63 L. T. N. S. 572 (an action against a Queen's harbour master). [q) tStort V. Clements, 1 Peakc, ni7. riLOTAOE AUTHORITIES ; QUEEn's SHIPS ; r.VRT OWNERS. 103 tlio Government, tlie superior officer is not answerable for the acts of his subordinates. Her Majesty's ships and public ships of foreign states are not subject to arrest (r). But they have frequently submitted themselves to the jurisdiction of the Admiralty Court, and upon so doing they subject themselves to the ordinary rules of law(.s). Whether \'essels belonging to a civil department of the Government, and employed for the special purposes of the department, are entitled to the immunity from arrest enjoyed by ships of war seems doubtful (t). Owners of cargo on board a ship in faid.t for a collision Liability of are not liable for the damage done by the ship ; but we ^^^^0'!" " have seen that the cargo may be aiTested in order to secure for the benefit of the sufferers in the collision the payment of freight due to the shipowner (^«). The shipoAvner is not discharged from his liability by the Shipo-mier sinking of his ship(ir), though in such a case no action in ghipi'ost. ° rem can be brought in Admiralty, Part owners of a ship in fault for a collision are at law Liability of ,,,.,, • • I 1 • ■ I 1 part owners severally liable as jomt wrong-doers, or ]omt employers and joint of the actual wrong-doer. One of them may be sued wrong-doers, alone {//) ; but if judgment is recovered against one part {)■) The Athol 1 W. Rob. 374 ; (.r) The Xormandy, L. R. 3 A. & The Cumxs, 2 Dods. 4G4. As to E. 152. ships of a foreign Sovereign which (y) 3[ltcheU v. Tarhntt, 5 T. R. are engaged in trade, .see below, 649. As to the liability of part p. 220. In America, Government owners by the civil law, see supra, ships are subject to Admiralty pro- p. 68, note (Z). By the maritime cess: The Siren, 7 Wall. 152; The law a part owner was liable only FidelUij, 16 Blatch. 569. to the extent of his interest ia the (a) See The Frintz Frederic]:, 2 ship : Emerigon, Contr. a la gi-osse, Dods. 451 ; and iw/rr/, p. 222. For Ch. EV., s. 11; Grotius de jm-. the practice, in case of collision belli et pacis, lib. 2, ch. 11, s. 13. with a Queen's ship, see Williams Semble, this was once the law of and Bruce, Ailmiralty Practice, 2nd the English Admiralty ; seeANems cd. pp. 82, 250, note (A); Maud and v. Marsh, 2 Ventr. 181; Gull c. Pollock on Shipping, 4tli ed. 615. ('arsicell, infra, p. 148 ; and is now (t) Sec 'The C;/belo, 3 P. D. 8; the law in France: Codes Aunotees, The Lord Jlobarf, 2 Dods. 103. Sirey et Gilbert, infra, p. 183. (m) ISupro, p. 81. 104 LIABILITY. Contribution amoujirst CO-OWllCl'!'. CoUiBion Ijetween two ships owned by the same persons. owner, it seems that no action can bo brought against the others, though the judgment is unsatisfied (~). The rule that tliere is no contribution between wrong- doers does not prevent a part owner wlio has been com- pelled to pay the w'holo of -tlie damages from recovering in an action for contribution against his co-owners (a) . And money so paid for damages, where the owner's liability is limited, may be brought into account as money disbursed for the use of the ship {b). If a collision occurs between two ships belonging to the same owner, his only remedy is against the actual wrong-doer. And the case seems to be the same where the two ships have one or more part owners in common. But the owners of cargo, or passengers, on board either ship can recover in an action of tort against the shipowners, subject to this, that where both ships are to blame, and the shipowners are protected by the terms of their contract against the negligence of their servants, the right to recover is limited to half the loss sustained, and that where (as is not ordinarily the case) the protection extends to the negligence of the shipowner's servants, as well on board the carrying ship as on board other ships of the same owners, there is no right to recover at all (c). (z) lirinsmead v. Harrison, L. R. 7 C. P. 547. As to the several liability where two ships are sued in Admiralty, see The Atlas, 3 Otto, 302 ; TJw Juniata, ibid. 337 ; The Alabama and The Gamecock, 2 Otto, 695 ; see infra, p. 196. As to the remedy against liis co-owner of a part owner who has f::iven a bond for the release of his ship, see below, p. 324. («) 1 Smith's Lead. Cas. 9th ed. p. 171. (J)) 17 & 18 Vict. c. 104, s. 515. {e) See Chartered Mercantile Bank of India, China, and London v. yetherlands India Steam Navir/atimi Co., 10 Q. B. D. 521. The law as here laid down, limiting the damages recoverable, docs not de- pend upon the doctrine of Thoro- (jood V. Jiri/an, 8 C B. 115, but upon the ancient practice of the Admiralty Court. See The Milan, Lush. 388, and per Lindley, L. J., 10 Q. B. J). 545. It would there- fore seem to be unaifected by the decision in The Ihrnina (No. 2), 12 P. D. 58 ; 13 App. Cas. 1. deeper the M. R., 12 P. D. at p. 83, and infra, p. 143. See also The Bcrnina (No. 1), 12 P. D. 36 (where the shipowners were not protected against the noghgcnce of their servants, and were liable to cargo owners in contract), and infra, pp. 284. co-owners; contribution; ships of same owner. 105 various cases. The liability o£ the shipowner as carrier upon the con- Liability in •/ i- ^ van nil H nawf! tract of carriage for a collision whereby goods or passengers are injured (d) ; in respect of collisions abroad (e) ; in respect of collisions witli or between foreign ships, or in foreign waters (./') ; of collisions where one or both ships are in tow (rj) ; where three or more ships are involved in the collision {//) ; where noghgence on board one ship causes a collision between two others, or injures another ship (?) ; and in respect of damage done to a pier or har- bour works (k), are considered elsewhere. (d) p. 281, seq. (/O p. 26. le) p. 210, seq. (i) p. 27. (/) p. 208, seq. (/.) pp. 73, 85, 178, 211. (ff) p. 185, seq. ( 106 ) CHAPTER IV. PERSONS ENTITLED TO RECOVEll. All persons injured in their persons or property in a collision caused by the fault of one or hotli ships, and who have not themselves or through their agents been guilty of negligence causing the loss {a), are entitled to recover damages. Such persons are usually of one or other of the following classes : owners of the injured ship, whether they are' registered as ovrners or not [h) ; passengers, master, or crew losing their clothes or effects {c) ; owners or con- signees of cargo on board either ship ; persons entitled under Lord Campbell's Act to recover damages for relatives killed (f/), or persons on board either ship who are hurt in the collision (c) ; the indorsee of a bill of lading, even though the cargo has been sold (,/') ; bailees, and other persons having a special property in, or temporary pos- session of, the ship or cargo (g). Actions by It seems that part owners of the injiu-ed ship might ?o^o*lidation recover damages for their respective losses in successive of actions. (fl) As to the cli\-ision of loss in cases -where both ships are in fault, see below, p. 125. (b) TheIlos,Sw. 100. (e) The Cumberland, 5 L. T. N. S. 496. As to a passenger by ferry in charge of his own mare, sec WiUouqhhij V. irorridrje, VI C. B. N. S. 742. [d) 9 & 10 Vict. c. 93 ; infrn, pp. 122, 144. A posthumous child niay recover for the loss of its father : The George and Richard, L. R. 3 A. & E. 46G. {e) As to members of the crew so hurt, see The Borodino, 5 L. T. N. S. 291 ; Tai/lor v. Bcwar, 2 B. & S. 58. ( /•) 2he Marathon, 40 L. T. N. S. 163. iff) The Minna, L. E. 2 A. & E. 97. In an American case full damages were recovered for a col- lision, although all interest in the injured ship had been transferred to a foreigner, whereby the ship was forfeited to the State : 'The Xahob, Brown, Ad. 115. TERSOXS ENTITLED TO KI'.COVEIl. 107 actions (//) ; and tho defendant would not, it seems, be entitled to have tho other co-owners added as plaintiffs, at any rate without their consent in ^^Titing, nor to have tlie proceedings stayed until tliis was done, so that he should not be vexed by more than one action (/). If a part owner dies after the collision and before action brought, the right of action survives to the other part owners (/.•). The underwriters upon a ship. A., sunk by collision Underwriters _^ , . ., . must Kuo lu with B., cannot sue B. or her owners m their own names, name of Their only right of action is by subrogation to the rights assured. of the owners of A. ; and they must sue in the names of the owners of A. (/). There was formerly doubt whether a person injui'ed on Person or owner of board a ship which is herself in fault can recover at common goods on law. This doubt, originating in the well-known case of J'^'^f^yif j^^^ TJtorogood v. Bnjan{m), has lately been set at rest by the recover. House of Lords in The Bernina (No. 2) {»). TJiorogood v. Bnjan was there ovemded. It had never been recognized as law in the Court of Admiralty, Dr. Lushington haAdng held that, Thorogood v. Bryan notwithstanding, the owners of cargo on board a ship in faidt could recover half their loss against the other ship being also in fault (o). Thorogood v. Bryan was decided in 1849 by a very Tlwrogooi \ . strong Court (Coltman, Yaughan, Williams, Maule, Cress- '^''"' well, JJ.). It held that the representatives of a pas- senger in an omnibus, who was killed by the combined (/t) Achlison V. Ovcrcnd, 6 T. E,. 8th ed. 31 C<. See also Armstrong 766; SedffWorth.v. Ovcrend, 7 T.H. v. Lancashire ^- Yorkshire Hail. 280. C'o., L. R. 10 Ex. 47 ; Adams («) Ord. XVI. rr. 2, 11. Jackson v. Glasgow ^- S. JF. JiaiL Co., 3 V. Kriiger, 54 L. J. Q. B. 446; Sess. Cas. 4th ser. 215. Trgon v. The Xational Provident {n) Nom. Jfills v. Armstrong, 13 Institution, 16 Q. B. D. 167. App. Cas. 1 ; in Courts hclow, 12 (A-) See liexv. Collector of Customs, P. D. oS ; 11 P. D. 31; followed 2 M. & S. 225 ; Martin v. Crotnpe, in Mathews v. London Street Tram- 1 Ld. Raymond, 340. wags Co., 58 L. J. Q. B. 12. {I) Simpson v. Thompson, 3 App. (o) The Milan, Lush. 388 ; The Cas. 279. <^''.y of Manchester, 5 P. D. 3 ; il>, (m) 8 C. B. 1 15 ; CattUn v. Hills, 221. i/iid. : 1 Smith's Leading Cases, 108 PERSO>:S ENTITLED TO RECOVER. negligence of the driver of the carrying omnibus and the driver of another omnibus, coukl not recover against the employer of the latter driver. The negligence in the carrying omnibus consisted in setting the passenger down in the middle of the street, and not drawing up to the kerb ; the negligence in the other omnibus was carelessly driving over the passenger after he had been set down. The ground of the decision was that the passenger was "identified" with the driver of his own omnibus in the matter of negligence, and therefore, having by his own (/. e. his driver's) negligence partly caused the accident, he could recover nothing. This case, though often questioned, did not come before a higher Court for review until 1888, The Bernina. when Tlic Beniina (nom. IliUs v. Armstrong) came before the House of Lords. In the Com-ts below, Butt, J. (11 P. D. 31), had reluctantly followed Thorogood v. Bnjan ; the Court of Appeal (12 P. D. 58) reversed the decision of Butt, J. ; and the House of Lords (Lords Herschell, Watson, Macnaghten, and Bramwell, the latter with some doubt), affirmed the decision of the Court of Appeal. The facts in Tlie Bernina were that Toeg, a passenger, and Armstrong, an engineer on board The Bushire, were killed in a collision between T//e Bernina and The Bushire, caused by faults in both vessels, but without fault in Armstrong or Toeg. It was held that the representatives of Toeg and Armstrong could recover full damages against the owners of The Beniina. Lords Herschell and Watson de- livered opinions strongly against the identification theory upon which Thorogood v. Bri/an was decided. Lord Bram- well was of opinion that Thorogood v. Brgai/ was rightly decided upon a point of pleading, namely, that whereas the plaintiff alleged that the defendant's negligence caused the injury, the fact was that the accident would not have happened but for the negligence of the driver of the carry- ing omnibus. Having been decided upon the point of pleading, Lord Bramwell held that Thorogood v. Bri/an PASSKXGKRS ; rUKW. 100 was not an authority in the case of Tlie lU'ruiini. As to the " idontitication " theory, Lord Braniwcll tlioiiglit that it was intended to express the idea that a person who contracts with another to be carried witliout negligence has not a right of action against a third party by whose negligent act, combined with a separate negligent act of the contracting carrier, the passenger is injured. This idea the learned lord found difficulty in deciding to be unfounded in law. lie considered that the decision of the House involved the overruling of Waitc v. North Eauterii Rail. Co.{p), as well as Tlioro(jood v. liri/an, so far as the latter case depended upon the identification theory. A servant cannot recover against his employer for shipowner's injury sustained in the course of his employment through J^y^^._^ ^ the negligence of a fellow-servant {q). It seems, therefore, that the ship's ofiicers and crew cannot recover against the shipowner for injury suffered in a collision caused by one of themselves (r), excex)t, perhaps, where the wrong-doer is the captain (.s). But a compulsory pilot is not a servant of tlie shipowner, and the rule above stated does not prevent him from recovering against the owner [f). (p) E. B. & E. 719. 43 & 44 Vict. c. 42, s. 8 ; 38 & 39 {(j) Priest/!/ V. Foichr, 3 M. & AY. Vict. c. 90, ss. 10, 13. 1 ; Chitty oil Contr. 10th ed. 537. (r) Lvddijy. Gibson, 11 Sess. Cas. See Wikoti V. Merry, L. R. 1 Sc. 3rd ser. 304. App. 326. The Employers' Liabi- (.s) llamsay v. Quinn, Ir. Rep. 8 lity Act, 1S80, does not apply to C. L. 322. seamen or apprentices to -sea ser- (<) Smith v. Steele, L. R. 10 Q. vice, or, it seems, to an officer. See B. 125. ( no ) CHAPTER V. DAMAGES. damages may- be recovered ; general rule. Restitutio in integrum. The wrong-doer in a collision is liable for all the reasonable consequences of bis negligence — " sucli damages as flow directly and in the usual course of things from the wrong- ful act " {a). This is the general principle, and where the damages claimed are in respect of loss or injury to ship or goods, occurring at, or immediately after, the collision, there is little difficulty in applying the rule. But where the loss, though consequent upon and connected with the defendant's negligent act, was not immediately caused by it, there is often great difficulty in determining whether damages in respect of such loss can be recovered as having been caused by the negligence. The question is closely connected with that discussed in a former chapter as to the legal consequences of negligence. Assuming that there is a good cause of action, there is a difficulty in many cases of determining the measure of damages, and the proper items to be taken into account in estimating them. As similar facts giving rise to similar claims for damages are constantly recurring in collision actions, it Avill be convenient to collect the decisions upon this subject. The general rule was thus stated by Dr. Lushington in (a) Ter Bowon, L. J., The Arrjcn- tino, 13 P. D. 191, 201 ; iu Dom. Proc. 14 App. Cas. 519; The Not- tinrj Hill 9 P. D. 105; Victorian Railwaij Commissioners v. Coull() See also The Linda, Sw. 306 ; (x) The Linda, Swab. Ad. 306. 30 L. T. 224 : The Hope and The {>/) The Thuringia, 1 Asp. Mar. Chili, 2 Mar. Law Cas. O. S. Dig. Law Cas. 283. 1 2 116 DAMAGES. Neglect to repair injury received in the collision. Neglect to beach. Owner not requii-ed to raise ship Slink in col- lision. hoiu's after the collision, and miglit have been taken to Heligoland. In another case (;:) no attempt was made to repair the damage received in the collision, such damage consisting in a small hole which might easily have been stopped. In consequence of the hole being left unstopped the cargo was injured by water. It was held that the cargo owner could not recover damages against the other ship, although she was in fault for the collision. The duty of the master of the injured ship to take proper steps to preserve, and, under some circumstances, to sell, an injured cargo, has been considered in several cases {a). It was held negli- gence in a master not to have discharged a cargo of beans which were wetted in a collision (b). Where a cargo was damaged partly by the collision and partly by the master's negligence in not carrying it on to the port of discharge ^vithout delay, it was held that damages for loss arising from the latter cause were not recoverable in the collision action (c) . The Court will not, upon the application of the owner of a ship damaged in collision, order her sale (d). A steamship at anchor in the Elbe (800 feet wide) was run into by the negligence of another ship. It was held that her owners were not entitled to recover as damages the cost of raising her. She sank some hours after the collision, and no water reached the engine room for half an hour after the collision. There was evidence that she might and ought to have been beached (e) . But where a ship is sunk at sea by collision, there is no obligation upon the owner to raise her, even if it would be possible to do so (/). If he elects to raise her, and it turns (z) The Bolides y 3 Hag. 367. \a) See Carr/o ex Argos, L. R. 5 P. C. 134, 165 ; and cases there cited. [b) Notara v. Henderson, L. R. 7 Q. B. 225 ; and see The Elina, 5 P. D. 237, note; The Bernina, 12 P. D. 36; 13 App. Cas. 1. (c) The Elina, 5 P. D. 237, note. {d) The Wexford, 13 P. D. 8. [e) ThelJama, 6 Asp. M. C. 268. (/) 77(rCW/««i?«, 3 W.Eob. 158. The principles of abandonment as applied in insurance cases do not apply in collision cases ; ibid. 165. DAMAGES. 117 out, upon a survey, that she is uot worth repaiiing, lie is entitled to recover as damages the expense of raising and docking her, less her value in the dock (g). If he repairs her at a cost exceeding her value before collision, he cannot recover the cost of repairs beyond such value ; nor any- thing in the natm-e of demui-rage (A). If, acting as a prudent owner, he elects not to repair, and sells her, he is entitled to recover her value at the time of collision, less the proceeds of sale, together with interest from the date of the collision (/). Damages for loss occurring dm-ing, or after, and in conse- Damages quence of, the collision, but caused partly by negligence of plainJiff-s ^ the plaintiff, cannot be recovered as having resulted entirely "!5^&'^"^°. •I ' 1 • 1 T ii IT • after collision. from the defendants negligence which caused the collision. Where, by the omission to cut a lanyard wliieli held together two ships which had been in collision, the damage was increased, it was held to have been caused partly by the plaintiff's negligence in not cutting the lanyard (k). So damage to one vessel by the fluke of the other's anchor was held to have been caused by the negligence of both ships, though the collision was caused entirely by the fault of the iujiu'cd vessel, the circumstances being such that the collision would have been harmless but for the fact that the other vessel's anchor was in an improper position (/). If the damage received in a collision is greater than Damage would ordinarily be the case because the injured ship was ^vea^statc^ in a weak condition, the other is not the less liable for the ^^ injured vgssgI entire loss, if she is in fault for the collision. The principle is, that if a part of the damage was clearly attributable to the wrongdoer, and it is impossible to di-aw the Hue with precision, and to say how much, the wrongdoer must make good the whole loss {7n) ; but where the damage occasioned (g) The impress Eugenie, Lush. & Lush. 436 ; OriU v. General Iron 138. Screiv Collier Co., L. R. 1 C. P. 600 ; (//) Hid. ibid. 3 C. P. 476. (() T}ie South Sea, Swab. Ad. 141. {/) The Margaret, 6 P. T). 76; cf. (A-) The Massachusetts, 1 W. Rob. The Scotia, 63 L. T. N. S. 3'2i. 371 ; see also The Flgiug Fish, Br. [m) The Egyptian, 2 Mar. Law 118 DAMAGES. Consequential damages. Loss of expected salvage. Loss of freight. by tlie collision can be easily discriminated, defects disclosed in consequence of the collision, though existing prior to it, cannot be charged against the defendant {n). What have been called consequential damages — that is to say, damages beyond the value of the ship or the cost of repairs — may in some cases be recovered (o). Where a smack was run down whilst engaged in per- forming a salvage service, she recovered the sum she would have received as salvage reward had she not been prevented from completing the service (^;). So freight which the injured ship is at the time of the collision engaged in earning, or under contract to earn, less the charges which would have been incurred in earning it, together with interest from the probable termination of the voyage, is always allowed as damages (q). " Loss by contact is, amongst other things, loss of the freight which the ship would have earned if she had not been crippled by the collision " (r). Where a ship was run down whilst on a voyage to Norway to bring home a cargo of lobsters, and another ship was taken up for the purpose, it was held that the freight of the lobsters was recoverable as conse- quential damages {s) . So the increase in value of cargo on board and belonging to the owner of the injured ship, which would have arisen had the cargo been carried to the port of discharge, and which by the collision the owner is prevented from earning, may be recovered as damages in the collision action (t). Cas. 0. S. 56 ; The Bernina (No. 3), 6 Asp. M. C. 65 ; The Sam Gaty, 5 Bissel, 190 (Amer. case). But see The Albert Edward, 44 L. J. Ad. 49 (damage to a mooring dolphin too weak to bear an ordi- nary strain). («) The Princess, o Asp. M. C. 451. (o) As to -whether the question of consequential damages is for the Court or the registrar and mer- chants, see below, pp. 323, 324. (p) The Beisei/ Caines, 2 Hagg. Ad. 28. {q) The Northumbria, L. R. 3 A. &E. 6. (r) Per Erie, C. J., Heard v. Eolman, 19 C. B. N. S. 1, 10. As to the cost of caiTying goods to their destination, see Pose v. Miles, 4M. & S. 101. («) The Yorkshireman, 2 Hagg. Ad. 30, note. {t) The Thyatira, 8 P. D. 155. DAMAGES. 119 If the injured ship sinks in consequence of the collision, Salvag-e the expenses of raising and docking lier are recoverable as damages (ii). And salvage or towage (x) expenses, whether incurred hy the owner, or paid by him to salvors, are recoverable as damages, if they are incui-red properly, and are in consequence of injury received in the colli- sion (i/) . And the costs of both parties in a salvage action have been recovered (z) ; but in a later case some doubt was thrown upon this decision (''/) . The expense of bail in a salvage action is clearly not recoverable (b). The cost of detaining the sliip's officers whilst the ship Cost of was being repaired has been allowed as damages, where it officers and was proved that the custom of the trade was not to dis- ^^^''^^ charge the officers at the end of the voyage (c) . In America the cost of detaining the crew after the collision, and of attempts to save the cargo, has been allowed (^/). Where it was proved that the market value of a yacht DiminLshed sunk in a collision was diminished, it was held in Ireland that in addition to the smn required for repairs, the differ- ence between her market value before and after the colli- sion was recoverable as damages {e). Where the owners suffer loss by the enforced idleness of Demurrage, their ship which has been injured in a collision, demurrage is allowed by way of damages whilst the necessary repairs are being effected. And demurrage runs whilst the ship is detained for the transaction of business connected with the collision, such as making a protest and obtaining the neces- sary official documents (/') . {u) The Empress Engenie, Lush, doer in the collision. 138. {a) The British Commerce, 9 P. [x) The Inflexible, Sw. 200. D. 128. (V) The Linda, Swab. 306 ; The [b] Ibid. Diana, 2 Asp. Mar. Law Cas. 366 ; (c) The In/exible, Swab. 200. The Williamina, 3 P. D. 97, 99. \d) Hofman v. Union Ferry of (r) TheLegatm, Swab. 168. Not- Brooklyn, 68 New York Rep. 385. ■withstaudiug Tlndall v. Bell, 11 M. {e) The Geon/iana and The Anyli- & "W. 228, it is not necessary that can, 21 "\V. Rob. 280. the defendant in the salvage action (/) The City of Buenos Ayres, 1 shoidd in all cases make a tender, Asp. Mar. Law Cas. 169 ; The so as to entitle him to the costs of Clarence, 3 W. Rob. 283 ; The In- the salvage action from the wi'ong- ^flexible. Swab. 200 ; The Star of charter-party. 120 DAMAGES. Where damages are estimated upon the footing of a total loss, although in fact the ship is subsequently saved and repaired, with the exceptions mentioned above, no more than the shij^'s value at the time of the collision can be recovered. In such a case nothing will be allowed for, or in the nature of, demurrage (r/). In some of the cases {h) where damages were allowed in respect of the loss of a specific voyage, demurrage dming the probable duration of the voyage appears to have been allowed ; this was clearly wrong (/) . ^oss^of ^ ^ Where, in consequence of the collision, a vessel lost the benefit of a charter, damages were allowed for the loss of the charter-party in addition to demurrage (k) . The principle uj^on which loss of a charter is allowed as damages is that the value of the charter is an accurate measure of the value of the ship to the owner during the time she is under repair, or is otherwise by reason of the collision prevented from earning money or being of use to her owner. Where at the time of the collision there is no existing charter, but there is a contract under which the ship is engaged to sail upon a profitable voyage, the pro- bable earnings of the ship under the contract will be allowed as damages. T/ic Argentino, at the date of the collision, was under an engagement to take in a cargo at Antwerp for Batoum, taking the place of one of a line of ships advertised to sail between Antwerp and Batoum. It was held by the House of Lords, affirming the decision of Bowen and Lindley, L.J J. (diss. Lord Esher, M.E.), India, 1 P. D. 466. As to demur- fei'red to the registrar of Her rage where the injured ship is one Majesty in Ecclesiastical and Ad- of a line advertised to sail at fixed miralty Appeals, and not to the dates, see The Black Frince, Lush. registrar of the Court below. As 568. In The Cit>j of Peldnr/, 15 Ap. to the usual rate of demuiTage, see Ca. 438, a claim for demurrage, The Cit;/ of Buenos Aijres, ubi sup. whilst a substituted vessel belong- (r/) 'The Columbus, 3 W. Rob. 158. ing to the same owners did the (A) The Hiar of India, 1 P. D. work of the injured vessel, wasdis- 406 ; The Consett, 5 P. D. 229. allowed. In an appeal to the Privy (J) 'The Argentino, 14 App. Cas. Council, in order to save expense, a 519, 523. claim for the expenses of the in- (/:) 'The Star of India, ubi supra; jured vessel whilst in port was re- The Consett, nbi supra. DAMAGES. 121 that tliere should he allowed as damages hy the collision "the ordinary and fair earnings of such a ship as The Argentino, having regard to the fact that she was put up as one of W. and L.'s line of steamers trading to the Black Sea, and adveiiised as such" (/). A fishing smack recovered, besides the value of her nets T/0'*« of and gear which she was obliged to cut adrift, the amount voyage, she might reasonably have expected to earn during the rest of the season {m). But it was held by Sir J. llanneu in a recent case that, where the boat is totally lost (in the ease before the Comt she was a French boat sunk by collision on the banks of Newfoundland), the prospective catch of fish could not be recovered, and the damages were confined to the value of the boat and gear {n) , Damages which, altliough consequent upon the collision, Remoteness do not immediately or necessarily fiow from it, cannot be ° ° ' recovered against the ship in fault for the collision (o). Where the master and part- owner of a vessel lost by colli- sion claimed his probable future earnings as master, and profits as part-owner, it was held tliat he was entitled to nothing more, by way of damages, than tlie value of the ship at the time of the collision {p). And where a vessel put into port for repairs necessitated by collision, and her cargo of fruit was necessarily discharged to enable the repairs to be made, and reloaded, damage occasioned partly by handling and partly by natural decay dimng the delay was held not to bo damage " consequent upon collision," within the meaning of a policy of insurance {q) . It has never been the practice to give damages for loss Loss of market. [J) The Argentino, 13 P. D. 191 ; 588 seq. ; and per Martin, B., in 14 App. Cas. 519. Wilson v. lieu-port Dock Co., L. K. {m) The Gleaner, 3 Asp. Mar. 1 Ex. l77, 187. As to whether re- Law Cas. 582 ; The Clarence, 3 W. moteness is a question for the re- Rob. 283, 286 ; The Jiisoluio, 8 P. gistrar or the Court, see infra, D. 109. In Roman law aliter, p. 324. D. 9, 2, 29, 3. ip) The Columbus, 3 W. Rob. 158; [n) The Citij of Rome, Ad. Div. and see The Clarence, ibid. 283. As 11th May, 18S7. to probable catch of fish, Abordage, (o) As to remoteness of damages, Nautique, Caumont, s. 148. see Mayne on Damages, 3rd cd. {q) Tink v. Fleming^ 25 Q. B. D. 40 seq. ; 2 Smith's L. C, 9th cd. 396. 122 DAMAGES. Damages for loss of life. Damages in proceedings by Board of Trade. of market for cargo on board a ship injured by collision (r). The difference between the price of the goods when they arrive at the port of discharge and the price when they ought to have arrived, and but for the collision would have arrived, is so uncertain that it cannot be held to be the reasonable consequence of the collision. It has been sug- gested that there is a distinction between an action for tort and an action upon the contract of carriage, and that damages for loss of market may be recovered ru the former but not in the latter form of action. There seems to be no ground for such a distinction (-s). Damagres for loss of life are recoverable under Lord Campbell's Act {t) by the relatives or legal personal repre- sentatives of persons killed in a collision in a personal action agaiust the person liable, but not in proceedings in rem (ti) . Under 17 & 18 Yict. c. 104, the Board of Trade has power to institute proceedings for the recovery of damages for loss of life or personal injury. Damages recovered in such proceedings are assessed at 30/. for each case of death or injury, and are payable in j)riority to other claims. This, however, is not the limit of the o-^Tier's liability. The full amount to which he is liable under 25 & 26 Yict. c. 63, s. 54, can be recovered in proceedings, either by the Board of Trade or by any person dissatisfied with the amount recovered in the Board of Trade proceedings. If the amount of the owner's statutory liability is insufficient to provide damages at the rate of 30/. for each claimant, the claims abate rateably (x). (r) The Parana, 2P.D. 118, 124; TJte Xotting Hill, 9 P. D. 105 ; Smith V. Condry, 1 How. 28; The Jos. W. Dyer v. National Steamship Co., 14 BlatcM. 483. See, however, France v. Gaudet, L. R. 6 Q. B. 199, where the price of goods con- tracted to be sold at a profit was recovered in an action for conver- sion. («) Tlie Kottinrj Hill, ubi supra. {t) & 10 Vict. c. 93 ; 27 & 28 Vict. c. 95. As to assessment of damages by a jury in the Admhalty Division, see The Oncell, 13 P. D. 80. («) See below, p. 144. {x) See 17 & 18 Vict. c. 104, ss. 507—516; 25 & 26 Vict. c. 63, s. 56 ; Glaholm v. Barker, L. R. 2 Eq. 598 ; S. C, L. R. 1 Ch. 223 ; see also The Franconia, 2 P. D. DAMAGKS, 123 A penalty of 50/. in addition to damages can be recovered rojifilty for against a ship that injures a light-ship {//). light-ship. Full damages may be recovered by the injured party Damages though he has been compensated for the whole or part of pal^'^by^^^ his loss by his insurers (c). But, as will be seen below {(i), insurerg. he will hold such damages as he may recover, to the ex- tent of the sum received from his insurers, in trust for his insm-ers. Damages recoverable by a cargo-owner, or by a pas- Damages rc- senger, upon the contract of carriage, are such as " a man can'^o-owne^ when making the contract would contemplate would flow upon the from a breach of it "(6). This somewhat vague rule is carrian-e. the only one to be extracted from the cases. It is beyond the scope of this work to discuss the general subject, and it is sufficient here to state that a breach of the contract of carriage, consisting in negligence of the carrier causing collision and loss of the goods carried, has tlie same effect as regards liability to damages as a breach of the contract in any other respect (c). The shipowner's general liability as carrier is considered elsewhere (d). The rule as to division of loss where both ships are in Effect of tho fault, whilst it extends the rio^ht to recover damajres bv V^^^ ^^ ^"^ ' _ " _ o J d.1 Vision or superseding the common law doctrine of contributory loss upon the negligence, also limits the amount of damages recoverable daina"es're- to one-half the claimant's loss. In the case of an owner coverable. of cargo on board one ship suing tho other in tort, it abridges to this extent his common law right to recover 1G3, IGG. It is believed that pro- Q. B. Ill, 121. ceedings under this Act have been {c) As to the subject generally, taken once tmly, in tho case of The see Mayne on Damages, 4th ed. Jo/i)i. pp. 12 xeq. ; Sedgwick on Damages, (y) 17 & 18 Vict. c. 104, s. 414. 7th ed. vol. 1, 431 seq.; vol. 2, 91 (s) Yates V. Whi/tr, 4 B. N. C. .vq. The Param, 1 P. D. 452 ; 2 272; Bradburn v. Great Western P. D. 118; MeJfahon v. Fieid, 7 Mail. Co., L. R. 10 E.x. 1. Q. B. D. 591 ; LUlei/ v. Loiibleday, (a) P. 295. ib. 510, are amongst the later casea [b) Per Blackburn, J., Hobhs v. on the subject. London .J- S. 11'. liuil. Co., L. R. 10 (rf) Infra, p. 281. 124 DAMAGES. full damages. But it does not affect his riglit to recover full damages upon the contract of carriage (e). And if part of the loss has been recovered in damages against the owner of the carrying ship, the balance up to one-half the loss may be recovered against the other ship (_/'). The effect of the rule as to division of loss is fully considered in another chapter (g). The Acts limiting the shipowner's liability largely affect the amount of damages recoverable by the sufferer in a collision. These enactments also are fully considered in another chapter (A) . {e) See Chartered Mercantile Bank (/) The Demetrius, L. R. 3 A. & of India V. Netherlanda India Steam E. 523. iSfavigation Co., 9 Q. B. D. 118 ; 10 {g) Infra, p. 125. Q. B. D. 521 ; The Bushire, 5 Asp. [h) Infra, p. 161. M. L. C. 416. ( 125 ) CHAPTEE VI. THE RULE AS TO DIVISION OF LOSS. For the purpose of determining by whom and in what The four cases shares the loss is to be borne, collisions between shijis have been divided into four classes. " In the first place it (collision) may happen without blame being imputable to either party, as where the loss is occasioned by a storm or other vis tnajor. In that case the misfortune must be borne by the party on whom it happens to light, the other not being responsible to him in any degree. Secondly, a misfortune of this kind may arise where both parties are to blame — where there has been want of due diligence or of skill on both sides. In such a case the rule of law is that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only ; and then the rule is that the sufferer must bear his own bui'den. Lastly, it may have been the fault of the ship which ran the other down ; and in this case the inno- cent party would be entitled to an entire compensation from the other " {((). The dictum of Lord Stowell is here cited as a clear statement of the modern ride of the maritime law as ad- ministered in England with reference to the incidence of («) Per Lord Stowell (then Sir rille, cited 2 Shaw's App. Cas. 395, W. Scott), The IVoodrop Sims, 2 is a dictum to the like effect. Dods. 83, 85. In The lord Mel- 126 THE RULE AS TO DIVISION OF LOSS. loss in case of collisiou. It has been universally accepted as such, cited with ajiproval in the House of Lords (b), and frequently acted upon by the Courts for the last seventy years. But it must here be pointed out, that in one im- portant particular Lord Stowell's statement of the case in which the rule of division of loss is applicable is not in accordance with previous decisions of the Court of Admiralty ; that the ancient rule of the Admiralty as to division of loss had for upwards of a century previous to the case of The Woodrop Sims a more extended operation than is attributed to it by Lord Stowell ; and that if, at the present day, its operation is confined to the case of "both ships in fault," it is by reason of the commtinis error, and not by virtue of any express decision of the Courts (c) , History of the The earliest trace (r/) of the rule as to division of loss t,,^'j - appears in the Laws of Oleron, a code of maritime law Oleron. attributed to the twelfth century {e), and introduced from Aquitaine into this country not later than the fourteenth century (/). This code contains a provision (Art. 15) that when a ship at anchor is damaged by a ship under way, {b) In Say V. Ze Neve (1824), 2 used to push in time past, and Shaw's (Sc.) App. Cas. 395. his owner hath not kept him in ; (c) The authorities for the state- he shall surely pay ox for ox ; and meut in the text are a series of the dead shall be his own." cases (unreported) from 1677 down- (e) 1 Pardessus, Collection des wards, collected by the present Lois Maritimes, pp. 283 seq. -wi-iter from the Admiralty Court (/ ) The Record or Roll Be Supe- books. They are set out in the rioritate Maris et Jure Admiralitatis note "History of the rule as to Anijlicc oi 12 Ed. 3 (I33S), refers division of loss in English law" to La Ley Oleyroun as the law of at the foot of this chapter; and at the English Admiralty: see Prynne, greater length in Marsden's Ad- Auimadv. 109 ; Selden's Mare miralty Cases (Clowes & Sons, Clausum, 1. 2, c. 24. A record in London). the Tower of London, set out by (f/) The Book of Exodus, Ch. Prynne, Animadv. 117, shows that xxi., w. 3.5, 3G, is cited by Cleirac theLawof Oleron was administered in support of the rule. The passage in the local Court of Bristol in 24 is as follows: "And if one man's Ed. 3 (1350). There are extant in ox hurt another's, that he die ; the archives of the City of London then they shall sell the live ox, and elsewhere in this country MSS. and divide the money of it ; and of these laws dating from the early the dead ox also they shall divide. part of the 14th century: Twiss' Or if it be known that the ox hath Black Book, vol. I, Ixxxii. HISTORY OV TIIK RULE, 127 the loss on the sliip shall be divided between the two ships, and the loss on the cargo between the merchants {(/) , provided the master and mariners of the ship under way swear tliat they did not do the damage wittingly (//). Tlie rule is stated to be so framed in order to deter the owners of old and inferior ships fi*ora trying to make money by getting them sunk by collision and recovering damages from the other ship. The laws of Wisby, a town in the island of Gotland (/), and various codes of maritime law in use subsequently to the thirteenth century in Flanders — all of them versions, more or less exact, of the Oleron code (/.) — contain very similar jirovisions as to the incidence of loss where the collision is not wilful. The instructions to the Admiral contained in the Black The instnic- Book of the Admiralty, dating probably 1337—1351, i^al!^"" contain a similar rule as to equal division of loss where the collision is accidental (/). The language of some of the Northern Codes suggests The Northern that the division of loss was not necessarily in equal shares, orproportion- but that there was a distribution of the loss on ships and ^t^ division of cargoes in the nature of a general average contribution between shipowner and merchant (;;?). The exact meaning of the rule seems, however, always to have been doubtful, and to have given rise to dispute so early as the time of (ff) . . . . " Le dommago doit Twiss' Black Book, 373 ; 3 Pardess. estre apprisie et party par moitie 34o (Art. 21) ; ib. 361 (Ai-t. 47) ; entrc les deux nefs, et les vins qui Twaterrecht in Vlaenderen, 4 sont dedcns les deux net's doivent Twiss' Black Book, 321, 435; partir du donnna^'c outre les mar- Jugements do Damme, ou Lois de chaunts": 1 Twiss' Black Book, Wtstcapelle, 1 Pardess. 37'J. 108; ib. vol. 2, p. 229, 1449; ib. [l) 1 Twiss' Black Book, 36; vol. 3, p. 21. , ib. XXX. Introd. (/() De bon gre. ("0 See the Laws of Gotland (0 DatGotlanscheWater-Recht, (Wisby), 4 Twiss' Black Book, Arts. 29, 30, 65 ; 4 Twiss' Black 284 ; 1 Pardess. 482 ; of Flanders, Book. 87, 125; ib. 284; 1 Pardess. Codex Brugensis, ib. 321; of 481, 501. Damme, 1 Pardess. 379; of Flan- {k) Jus Maritimum Lubecense in ders, Dantzic MSS., 4 Twiss' nsus Osterlingorum, Art. 23 ; 4 Black Book, 435. 128 THE RULE AS TO DIVISION OF LOSS. ConsoLito del Mare. Dani:*h and Swedish Code. L'Ordon- iianno de la Marine. Division of loss accordinj^ to decision of experts, by Danish Codes. Bynkersliock. He describes in graphic terms the astonish- ment of tlie Supreme Court of the Netherlands, of which he was a member, when he endeavoured to persuade his colleagues to enforce a proportionate, and not an equal, division of the loss (w) . Valin states that in his day opinion was divided upon this point ; his own being in favour of an equal rather than a proportionate division (o). The Consolato del Mare, a code in use in the Mediter- ranean in the sixteenth centiuy, contains some provisions as to the incidence of loss, the principle of which appears to be, that where the collision is caused by negligence, the wrong-doers shall make good the loss ; and that where it is accidental, the loss shall be apportioned between the ships and cargoes by way of general average contribution, but in what shares does not appear [p). By Danish Codes of 1561 and 1683 {q), and by Swedish Codes of the seventeenth century (;•), the loss in the case of an accidental collision between two ships under way was equally divided. By the celebrated Ordonuance de la Marine of Louis XIV., which was promulgated in the latter part of the seventeenth century, the rule in the case of accidental collision was that the loss should be equally divided (.s) . Some doubt appears to have existed as to whether it should not be apportioned in the nature of an average contribution, but Valin states that the better opinion was in favour of equal division {t). Danish Codes of 1508 and 1683 divide the loss of an accidental collision between the ships, according to the (w) Memini, me senatore et de geometrica proportione perorante, reliquos senatores obstupuisse atquo si Jovis ignibus icti assent : Bynk. Qusest. Jur. Priv. 1. iv. c. 20. (o) Valin sur I'Ordonnance, 1. 3, tit. 7, Art. 10, vol. 2, p. 178. [p) Consolato del Marc, cc. 155- 158 ; 2 Pardess. 174 seq.; 3 Twiss' Black Book, 283 seq. {q) 3 Pardess. 260, 288. (r) Ibid. 129, 173. (s) Valin sur I'Ordonnance de la Marine, 1. 3. tit. 7, Arts. 10, 11. (0 Jbicl. vol. 2, 178. MEI)I.1,\ AI, CODES. 129 decision of experts, without specifying the princijilo nn wliicli tlie division is to ho made (ii). A different division is adopted in the I)anis]i Codu of Divisiou iu 1-">()S in case of collision hetween a ship under way and another at anchor {x). The ship under way accidentally damaging another at anchor pays one-third of the loss. And a similar rule appears in Swedish Codes of the seventeenth century {>/). A like division of the loss is adopted in a code of maritime law stated to have been in force in the kingdom of Malacca in the thu'teenth centiuy, in the case of a collision in bad weather between two ships of a fleet sailing in company for protection against pirates (voyage do conserve) . In another Eastern Code, contained in the collection of Pardessus, the proportion of damage recoverable in such a case by the injured ship is reversed — the injured ship being enabled to recover two-thirds, and having to bear only one-third of her loss {z). In all these codes the division of loss took place only Originally the where the collision was accidental. There is no sugges- only^Avhere tion for dividing it where the collision could have been t^e collision avoided. On the contrarj^ it is expressly provided, or dental, clearly implied, in some of the codes, that the wrong-doer in a collision shall make full recomperfse, and that he shall recover nothing {a) . Nor is the modern rule of the English Admu-alty, which Rule of divides the loss where both ships are in fault, a rule of the Admiralty (») 3 Pardess. 261, 289. See also Laws of Wisbuy, Arts. (j-) II). 237. 49, 65 ; 1 Pardoss. 496. 501 ; of (//) I/>. 129, 173. Bamme, Art. 15 ; 1 Pardcss. 379. (z) See6Pardess.409,459. These And see the Consulate, c. Ibl seq. ; codes are said to have been founded 2 Pardess. 174 ; Instructions to the on customs in force in the East. Admiral, 1 Twiss' Black Book, 36, They purport to have been promul- 37. The references given by Bou- gated by Mahinoud Sehah, the lay Paty, Cours de Droit Coram. Mahomeilan coutpieror of the East- Mar. tit. 12, s. 6 (vol. 4, p. 493), ern islands. It .seems probable that in so far as they suggest that, by he brought them from the Mediter- the.se codes, -when the collision waa ranean. accidental the loss rested where it (n) This .seems implied iu Art. 15 fell, appear to be misleading, of the Oleron Code, supra, p. 127. M. K 130 THE RULE AS TO DIVISION OF LOSS. dividiiisr the loss where both ships in fault. ancient maritime law. In two alone of the ancient codes is tliere a trace of dividing loss caused by fault (/>). The rule of the English law, therefore, differs mate- rially from that of any of the above-mentioned codes. Whatever its origin may he, its scope and application for the last hundred years are clear. It applies where both ships are proved to be in fault, and in no other case. It differs, therefore, widely from the rule of the Oleron Code, which appears to be the foundation of all the other codes. The English rule applies only where there is fault in both ships ; the ancient rule applied only where there was no fault in either ship. It differs also from the rule of the general maritime law — so far as there can be said to be any general maritime law on the subject. The maritime law divided the loss where the collision was inevitable, and also in the so-called case of inscrutable fault — that is to say, where the fault was not brought home to either ship (c). In this last case, by the law of England, as laid down by Lord Stowell, each ship bears her own loss. But cases have occurred during the present century in which had there been a chance of getting the loss divided on the ground that the collision occurred without fault in either ship or on the ground that the cause of collision was left in uncertainty, the rusficum judicium {d) would at least have been mentioned. But the books are entirely silent as to such an application of the rule. Where the plaintiff has failed to establish negligence against the adverse party, the practice has been to dismiss the action, and generally with costs. {h) By the Wisbuy Stadslag (4 Twiss' Black Book, 391), a ship brought up in a fair way pays half the loss of another that goes foul of her. And in the Consolato del Mare, c. 157 ; 2 Pardess. 17G, there is a somewhat similar provision, as between two ships at anchor. (f) See Bell's Coinm. (ed. 1870, by McLaren) I. G27 ; Valin sur rOrdonnance, 1. 3, tit. 7, Art. 11 1 Parsons on Shipping (ed. 1869), 527 ; 4 Boulay Paty, Cours de Droit Comin. Mar. p. 496, citing Grotius, 1. 2, 0. 17, s^ 21 ; Loccen- tius de Jur. Mar. 1. 4, c. 9, § 11. {d) Cf. The Maid of AncJdand, 6 Not. of Cas. 240 ; The Catherine of I)i collision caused by the fault of his master and crew (f). case of It is not surprisino- that a ride framed to meet the difh- ' ' "^^^rutable A_ » fault. culty of proving- fault — oh dijficultatein culpa' probaiuhe (/), — should have been applied to cases where fault contri- buting to the collision was proved against each ship, but where the difficulty of proving the exact amount of damage resulting from the fault of each ship remained (g) . We find tliis difficulty of proof assigned as a reason for applying the rule in a case early in the last centmy (//). It is clear that in the time of Bynkershoek (/) and of Yalin (./), tlie rule was applied to cases where fault in one or in both ships was manifest but not brought home to either. The difficulta.s probatio)iui)i, which is at the root of the ride, clearly exists in the one case as much as in the other. How it happened that in England the rule ceased to be applicable in the only case to meet which it was originally instituted, is not so clear {k). As to the policy and justice of the rule there has been Policy of the much difference of opinion. Cleirac (/) approves the rule upon the questionable ground above stated — that induce- {c) See supra, p. 68, note (/). d'antre est juge avarie commnne: (/) Grotius de Jure Belli et Valin sui- rOrdonnance, 1. 3, tit. Pads, 1. 2, c. 17, § 21 ; Loocentius, 7, Art. 11, 2 vol. 183. 1. 3, c. 9, § 11. • (/.) In America it has been {g) For an unconscious applica- doubted by writers of authority tion of the rule by a British jury, whether it is not applicable in see liaisin v. Mitchell, 9 C. & P. cases of inscrutable fault : see 1 613, supra, p. 28. Parsons on Shipping- (ed. 1869), (/() Ashion 0. Kodcn, The Mary irll ; Story on Bailments, § 609 ; 3 and The Rebecca (1706) ; infra, p. Kent's Comra. 231 ; but see The 147. Clara, 12 Otto, 200, where, in (t) See supra, p. 130. stating the law as to incidence of \j) Par la ditlicultede reconnoitre loss, the Court made no mention of de quel cute est la faute, et juger the case of inscrutable fault, memo si la faute est de nature a (/) Us et Coustumes de la Mer meriter que celui a qui ello est im- (ed. 1661, Bordeaux, p. 68). He putee supporte le dommagc en illustrates the rule by citing the entier, il arrive presque toujours Book of Exodus, ch. xxi., ver. 35. que le donimat!:e re(,'U de part et k2 132 THE RULE AS TO DIVISION OF LOSS. merits must not be given to get ships wilfully run down (m). That he had not a high opinion of its justice seems probable from his stigmatizing it as Judicium rusficorum {n), a term a])plied to it also by Chancellor Kent (o). In the courts of this country it has been much abused. Lord Den- man, (J.J., said of it : " It is an arbitrary provision of the law of nations, not dictated by natural justice, nor, pos- sibly, quite consistent with it " (p). And more recently Lord t^elborne, C, has spoken of it in similar terms (q). The arguments adduced in favour of it are as fanciful as they are divergent. The reason which suggested itself to Clcirac for its enactment was that, but for it, shipowners — gens de mev ordinairement enclins an nml et a la bamterie — would purposely get their ships run down on the chance of recovering excessive damages (v). This seems far- fetched. That the rule conduces to safety at sea, by encouraging shipmasters to take every possible precau- tion (.v) ; or that it makes masters of large ships more careful of small ones (/), as has been suggested by other authorities, is at least doubtful. That it tends to avoid interminable litigation, as has been stated by a high authority in tliis country {u) , is not evident. There can be (;«) "Est considerable que les n. 32 — tel f ut le j ugement reconneu gens de mer wont ordinairement tant jiiridic du sage Roy Salomon, enclins au mal et a la baraterie " qu'il donna sur la question naturele — a low estimate of maritime mora- eutre deux mers " {sic). lity, but one shared by judges of (o) 3 Kent's Coram. § 231. the Admiralty in recent times. See, [p] I)e Vaux v. Salvador, i Ad. per Dr. Lushmgton, 77ie Lady & El. 420. Campbell, 2 Hag. A. & E. 5 ; and {q) 7 App. Cas. 799. Sir R. Philhmcre in The Macleod, 5 \r) Cleirac, Us et Coustumes de P. D. 254. _ _ la Mer, p. 68 ; Boulay Paty, tit. (m) " Les jurisconsultes nom- 12, s. 6. ment et (^ualifient cette decision par (s) Celle-ci est fondee sur una moitie judicium rusticorum . . . et raison d'interet public, a fin de 86 prattique ordinairement par les rendre les maitres des na\ares plus arbitres, arbitrateurs, et amiables soigneux a prendre toutcs les pre- compo8iteur.s, lors et quand I'inte- cautions possibles pour eviter cet rieur des parties, ou le motifs de la abordage : Pothier, vol. 4, p. 444, question n'est pas a descouvert et Avaries, ^ loo. conneu; ou bien quand il y a de la [t) See Bell's Comm. (ed. 1870, coulpe de part et d'autre — aut by McLaren), i. 627. quando sunt diversm judicum opiniones («) See per Lord Blackburn, 7 hincet inde probabil. Boer. dec. 42, App. Cas. 819. ITS POLICY, JUSTICE AND C)Kir;iX. I'-Vd iKj duuLt that ill some cases it works positive injustice. It prevents the innocent owner of cargo on board either ship from recovering from the WTong-doing owner of either ship more than lialf his loss (r) ; and a leading case before the House of Lords (^) shows that it works in an arbitrary and uncertain manner when combined with the statutory limitation of liability (x). The rvde as to division of loss is probably connected with Division of the law limiting shipowners' liability. Throughout tlie /imitation of media? val codes the object of the rule appears to have been li^ibility. to mitigate the disaster to an innocent sufferer by distri- buting the loss by collision between the two ships. The object of the statutory limitation of liability of modern days is avowedly the same. 13y 17 & 18 Yict. c. 1U4, s. 298, where both ships in- Merchant fringed the statutory steering rule, the Admiralty rule as 1854^^"^ ° ' to division of loss was in effect repealed. Where one of the ships, A., infringed the statutory ride, and the other, B., was in fault in some other respect {cff., look-out), A. could recover nothing, while B. recovered half his loss. If both ships were in fault cargo owners could recover half their loss in all cases. This unsatisfactory state of the law was put an end to by 2-3 & 26 Vict. c. 63 {//). Before the passing of the Judicature Act the rule as to Judicature division of loss had no application except in the Court of '^ ' Admiralty. Elsewhere the rule that a person cannot re- cover damages for loss caused wholly or in part by his own negligence w^as applied in collision as in all other cases. The Judicature Act (36 & 37 Yict. c. (JG), s. 25, 8ub-s. 9, enacts as follows : — In any cause or proceeding for damages arising out of a coUision between two ships, if both ships shall be found to {v) See per Lord Blackburn, ib. ; {z) The Voorivaarts and 77ic Khe- The Mih», Lush. 388 ; but see The dive, infra, p. 140. Bcnuiia, 12 1\ D. 58; 13 App. {>/) See further us to this, *m/>»y/, Cas. 1. p. 40. 134 THE RULE AS TO DIVISION OF LOSS. have been iu fault, the rules hitherto in force in the Court of Admiralty, so far as they have been at variance with the rules in force iu the Coui'ts of common law, shall prevail (;:). Colonial law. It applies to all collisions, whatever the nationality of the ships, and •wherever the collision occurs. The law, therefore, as to the incidence of loss where both ships are in fault, is now the same in all the Courts [a) . The rule of equal division of loss prevails in some, but not in all, the colonies and dependencies of Great Britain. In Canada, by a recent statute {b) it applies in the com- mon law, as well as Admiralty, Courts. In Santa Lucia it applies where the cause of collision is unknown, where both ships are in fault, and also in the case of inscrutable fault (c). The rule of division of loss applies to all collisions, whatever the nationality of the ships, and wherever the collision occurs. Thus it has been apj)lied where both the ships were British {d) ; both foreign {c) ; one British and one foreign (/) ; where the collision was in British waters {d) ; (z) The marginal note to this section is "Damages by collision at sea." The words "at sea" do not restrict the operation of the Act. Sutton V. Suttoti, 22 Ch. D. 511. (a) At the passing of the Judi- cature Acts the Admiralty rule narrowly escaped abolition. In the original draft of the Act it was provided that the common law rule should prevail ; but in the passage of the bill through the House of Commons the Admiralty rule was reinstated, and ultimately made the law of the laud. The reasons for preferring the Admiralty to the common law rule are not apparent. It appears to have been thought that the former was more in accord with the law of foreign countries. See Hansard's Pari. Deljates, 3rd ser. vol. 216, pp. 1800, 1801. A short summary of foreign laws upon the point is appended to this chapter. It will bo seen that they are widely divergent. {b) 43 Vict. c."29, s. 8 (Canada). (c) Civil Code of St. Lucia (1876), Art. 2360. "If the cause of colli- sion be unknown, or it be impossible to determine by whose fault it was caused, or if both ships are in fault, the damages are borne in equal por- tions by both ships." {d} The It. L. AMon, 8 P. D. 5 ; TJie Margaret, 9 P. D. 47 ; The Vera Cruz, 9 P. D. 88, 96. {/) The North American and The Tcela Carmen, Swab. 358 ; Lush. 79 ; Chartered Mercantile Hank of India, (S;c. v. Netherlands India Steam Navigation Co., 10 Q. B. D. 521 ; The Wushinyton, o Jur. 1067 ; The Monarch, 1 "W. Eob. 21. (/) The Voonraarts and The Khe- dive, 7 Ajjp. Cas. 795 ; Chapman v. Royal Netherlands, S;c. Co., 4 P. D. 157; The Rona and The Ava, 2 Asp. Mar. Law Cas. 182 ; The Vera Cruz, 9 P. D. 88 ; The Seringapatam, 3 W. Eob. 38. SINCE THE JUDICATURE ACT. 135 in foreign waters ((/) ; and on the high seas (h). And, as stated above, it applies whether the action is in Admiralty or in a Court not having Admiralty jurisdiction (/). Whether the rule is lex loci or lex fori does not appear to have been decided. Xo question has been raised in any case as to its universal application. In the Court of Admi- ralty it was administered as part of the law maritime; though, as appears above, it is doubtful whether it ever formed part of any general system of maritime law. As has been already stated the law apportions the loss The loss is where both ships are in fault by obliging each wrong- doer apportioned to pay half the loss of the other. Thus, if the loss on ship shares, what- A. is 1,0U0/. and that on B. is 2,000/., A. can recover 500/. dSee of against B., and B. can recover 1,000/. against A. The fault in each Courts make no attempt to administer distributive justice by apportioning the loss according to the degree of fault of which each ship is guilty {k) . " Until the case of !!((>/ V. Le Neve . . . there was a question in the Admiralty Court whether you were not to apportion it (the loss) according to the degree in wliich they (the two ships) were to blame. But now it is, I think, quite settled, and there is no dispute about it, that the rule of the Admiralty is, that if there is blame causing the accident on both sides (y) Hai/ V. £e Xtve, 2 Shaw's {k) Trew c. Peirce, The Mary of (Sc.) App. Cas. 395. Fook and The Mary of Weymouth, [h) The Rona and The Ava, 2 Ad. Ct. 7th July, 1692, tnfra, p. Asp. Mar. Law Cas. 182. In The 146 ; The Fetcrs/ield and The Judith Monarch, 1 W. Rob. 21, the colli- Randolph (1789j, cited in the next sion was " at sea ; " in The Wash- case; Hay v. Le Xeve, 2 Shaw's t«<7^ow, 5. Jur. 1067, off Berry Head; (Sc.) App. Cas. 395, and see the in The S-:ringapatain, 3 W. Rob. 38, cases mentioned below, pp. 145, off Beachy Head. seq. ; per Lord Blackburn, The (i) It was recently held by the Khedive and The Vooruaarts, 7 App, Queen's Bench Division to be ap- Cas. 795, 808 ; The Margaret, 9 P. plicable in the case of a collision U. 47, 51 ; The Meteor, Ir. Rep. 9 between Singapore and Sourabaya Eq. 567. The dictum of Lord between two ships belonging to Campbell in The Friends, 4 Moo. P. the same owners, British subjects, C. C. 314, 322, to the effect that but registered under a foreign Hag : the loss may be apj>ortioned accord- Chartered Mereaiiti/e Rank of India, ing to the degree of fault in each ^e. V. yetherlandu India Steam Xavi- ship, is without authority. yaiion Co., 10 Q. B. D. .521. 136 THE RULE AS TO DIVISION OF LOSS. Principle of the rule. Cir- cumstances that bring it into opera- tion. Does the rule apply except where the two ships are in collision ? tliey are to dhide the loss equally, just as the rule of law is, that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls" (/). The principle of the rule is said to be equality of parti- cipation in a loss arising from a common fault (>;?). To bring the rule into operation, both ships must be guilty of negligence contributing to the loss (ii). But the common fault, or rather the acts of negligence committed by the ships respectively, need not, it seems, be both faults contri- buting to the collision. Thus a schooner at anchor, whose sole fault consisted in having her anchor suspended from her hawse in a position likely to do damage if a collision occurred, was held liable for half the loss suffered by the other vessel, a dumb barge, that negligently went foul of the schooner, and was pierced and sunk by the schooner's anchor (o) . The rule has also been applied in the case of a collision between a ship being launched and another under way, where the fault in the former was committed by the people ashore in starting her on the ways at an improper moment (p). Whether the rule applies where the two ships are both in fault for the collision, but the collision is not between themselves, is not clear. Whether, for example, in the case of a collision between ships A. and B. by the fault of one or both of them, and of a third ship, C, A. or B. could {I) Per Lord Blackburn, C'ai/zer V. Carron 6'o., 9 App. Cas. 873, 881. (w) See per Lord Stowell in The Woodrop Sims, supra., p. 125 ; per Lord Selborne, C, in Tltc Voor- ivaarts and The Khedive, 7 App. Cas. 795, 801 ; see also The Lima, 4 Jur. N. S. 147 ; The Aurora, Lush. 327 ; The Seringapatam, 5 Not. of Cas. 66 ; The Celt, 3 Hag. 328; and per Lopes, L. J., TJie Bermna, 12 P. i). 58, 96. See, however, Treiv c. I'eircc, infra, p. 14 G, where a different reason is given for tlu; rule, namely, the difficulty of determining what part of the loss on each ship was caused by the fault of the other. In some foreign countries the loss is divided according to the degree of fault in each ship; see below, p. 159. («) The FranMaiid, L. P., 4 P. C. 529, 533 ; The llona and The Ava, 2 Asp. Mar. Law Cas. 182 ; Cayzer V. Carron Co., The Margaret, 9 App. Cas. 873. (o) The Margaret, 6 P. D. 76 ; cp. The Scotia, 63 L. T. N. S. 324. {p) The United States, 12 L. T. N. S. 33. ITS I'HINCTl'LK : DAMAfiK AVI'IHOTT COT.I.TSION. 137 recover lialf lier loss from C, has not been decided {q). In America the rule was applied where the collision occuiTed between a ship at anchor and another in tow by the fault of the tug and the ship at anchor (r). In The Biijlij (lidml [n), a tug, A., towing a vessel, B., was struck and injured by the tow-rope of another tug, C, which, being ahead of A., was also towing 15. It was held that the damage was caused by negligences of tug C. in having too long a scope of tow-line out, and also by the negligence of tug A. in not keeping clear of the tow-line. The rule of ecpial division of damages appears to have been applied ; but no question upon this point was raised. In a Canadian case {t) the rule was applied where the damage was by an anchor without collision. In TJie Celt an attemj^t was made to apply the rule where the fault of one ship was in no way a cause of the collision, and consisted in not standing by to assist the other. It is needless to add, the attempt was imsuc- cessf ul {u). The rule has been extended in America to cases where two ships, as a tug and her tow, are both in fault for a collision with a third, which is free from fault. The judgment in such a case goes, not against each ship for the whole of the damages, but against each ship for half the damages, with a remedy over against each ship in case the other fails to pay the amount in which she is con- demned [x). The application of the rule produces singular results Application where one or both ships limit their liability under the °v]ipj.|^.^" *^ Merchant Shipping Acts. The subject has been very liiibilitj- is fidly discussed in the Admiralty and Appeal Courts {(]) As in Thr Energy, L. R. 3 [t) The McCallum v. The Odette, A. & E. 48 ; and see The Avon and 7 Duval (Canada), 36. The Thomas Jolife, infra, p. 144. (m) 3 Hag. 321. (>•) 'The James GriJi/ and The John (.r) The Sterling nndi The Equator, Eraser, 21 How. 184. IGOtto, 647 ; foUowiuir 77/c./("(7/w»irt (.s) Ad. Ct. 30tli Ap. ISSl. and The Gamecock, 2 Otto, 69o. u-aarts and The Khedive. 138 THE KULE AS TO DIVISION OF LOSS. and by the House of Lords. The case which finally settles the law on the subject is Stoommart Macitschapp// Ncder- hnid V. Peninsular and Oriental Steam Navigation Company^ The Vooricaarts and The KJiedive{y). The Voor-^ Two ships, The Voorwaarts and The Khedive, having been in collision, the owners of The Voorwaarts brought an action in rem in the Admiralty Division against the owners of The Khedive, who counter-claimed for the amount of the loss suffered by their own ship (~) . Both ships were held in fault for the collision. The owners of The Khedive brought an action in the Admiralty Division to limit their liability, and paid the amount of their statutory liability into Court. The damage to The Voorwaarts was greater than that to The Khedive, and the fund in Court was not sufiicient to satisfy all the claims for which the owners of The Kliedive were answerable. It was held by the House of Lords (Lords Selborne and Blackburn, Lord Bramwell doubting), overruling a previous decision of the Court of Appeal (r/), that the owners of The Voorwaarts were en- titled to prove against the fund in Coiui- for a moiety of their loss, less a moiety of the loss of The Khedive, and to be j)aid out of the fund in res2:)ect of the balance pari jxfssu with the other claimants. By the decision of the Court of Appeal above referred to («), it had been held that the ship proving against the fund in Court was entitled to prove for half her loss, without deducting any- thing in respect of her liability to the other ship. The question to be decided was whether in such cases there are two liabilities in damages, one on the part of each shipowner to the other shipowner for half the loss of the latter, or only one liability, namely, a liability on the (//) 7 App. Cas. 705. (a) Chapman v. Royal Nethcrhnuls (j) Stooiavaart Maatnchappy Ne- Steam Nuviyation Co., 4 P. D. lo7. derland v. Peninsular and Oriental AdocisionofBago-allay and Cotton, Uteam Navigation Co., 7 App. Cas. L.J.T. (Brett, L. J., dissenting), re- 795. versing the decision of Jessel, M. K., in the Court Lelo'.v, ArrLU'ATioN \\'iii;kk ],IAlill,^^^ i,i.Mrn:D. 139 part of the owner of llie ship tliat had done the greater damage, for tlie difference between half the loss of the one ship and half the loss of tlie other — in the words of Lord Selborne, " a moiety of the excess of the ag-gregato loss beyond the point of equality." It was held tliat tlie terms in which the rule of the Admiralty was laid down in lite Woodi'op >Siin.s, The Lord Melville, The Petersjield and The Judith Randolph, and Hay v. IjC Neve, showed that in substance there was but one action and one final judgment; and that such final judgment was for the balance between a moiety of the loss of the one and a moiety of the loss of the other. The later cases of The Washington and The Catherine (b), Tlie Heringapatam (c), and The Tecla Carmen {d), were cited as confirming this view {e) . Lord Blackburn, in the course of an elaborate discussion of the law relating to the subject, lays stress upon the provisions of 53 Geo. 3, c. 159, and 17 & 18 Vict. c. 104, s. 514, as to the distribtition by the Chancery Courts of the sum representing the amount of the statutory lia- bility. The statute requires the Com-t " generally to do what may appear to be just" in the suit. Lord Selborne thought that there was little, if any, room for the argu- ment from abstract justice and c(piity, the rule as to the division of loss being itself arbitrary ; and Lord Bram- well (in an opinion wliieh was written by him, but not delivered ; see 7 App. Cas., note, pp. 826, 827) points out that some of the results following from the decision of the House of Lords are of doubtful equity or justice. It is further pointed out by Lord Bramwell (p. 827, note), that, by the decision of the House of Lords, the owners of The (li) 5 Jur. 1067. terms for the balance of loss ; see (c) ;5 W. Rob. 38, 44. ii/frti, y>. 146. In Holland tho same [d) Lush. 79. decision was arrived at in a case (<■) To these cases may bo added mentioned in Bynkershock, Qusest. JleiincH c. Humble, The Hopewell nwA Jur. I'riv. 1. 4. e. 21. Sec also The The Prosperous, Ad. Ct. Dth May, Sapphire, IS Wall, ol ; The Maid- 169S, where the sentence was in tohn. 15 Davis, U.S. 97. 140 THE RULE AS TO DIVISION' OF LOSS. The Voor- Vooncdiirf.^ were as well off as if their ship were blame- SrlvJSar. less (,/■) ; and that the loss to the owners of The Khedive was the same as if their ship were aloue in fault. Thus, where Loth ships are in fault, and one limits her liability under 25 & 26 Yict. e. G-'], s. 54, her owners, inasmuch as they lose the right to recover damages against the other ship, are indirectly answerable in damages to a greater amount than the statutory limit. The effect of this decision will be best seen by an illus- tration. Let the loss on ship A. be 10,000/., the loss on ship B. 20,000/., the loss on cargo on board B. 40,000/., and the statutory hability of A. 24,000/. According to the (overruled) decision of the Court of Appeal the owners of B. would ultimately, and after payment of the amount of their liability to A., recover 3,000/. ; that is to say, a proportionate part (one-third, or 8,000/.) of the 24,000/., less 5,000/., half the loss of. A. (r/). According to the decision of the House of Lords the owners of B. recover 4,000/. ; that is to say, four-fifths of half the difference between the loss on B. and the loss on A. {h). Again, in the one case the collision would cost the owners of A., in loss to their own ship and damages payable to the other ship, 29,000/. (0; that is to say, the amount of their statu- tory liability in addition to half the loss on their own ship ; in the other, 34,000/. (/.•), that is to say, the amount of their statutory liability in addition to the whole of the loss on their own ship. Again, in the one case the owners of cargo on board B. would recover 16,000/. (/) ; in the other 20,000/. (m). Lastly, the other circumstances being the same, if A. were not damaged at all, according to the decision of the House of Lords, the owners of cargo on (/) 7 App. Cas. p. 827, note; only £24,000 being recoverable, and by Baggallay, L. J., 4 P. D. each claim must abate by one- 170 fifth. in] £8,000 -.£5,000=£3,000. (i) £24,000 + £0,000 = £29,000. //) -1 of h (£20,000- £10,000)= (/.■) £24,000+ £10,000=£34,000. £4,000. Half the wholcloss on B. [I) £24,000-£8,000. and her cargo being £30,000, and (w) £24,000 -£4,000. THE VOORWAARTS AND THE KHEDIVK. 141 board B. would recover 16,000/. (;/) ; whereas if A. Le damaged to the extent of 10,000/., we liave seen that tliey recover 20,000/. (o). According to the decision of the Court of Appeal cargo-owners would recover the same sum whether A. were; damaged or not. Another result of the decision of the House of Lords is that, where the loss on each ship is tlie same, and each ship limits hor liability, the whole of the sum paid into Court is divisible between the owners of cargo on board the two ships, whilst the shipowners get nothing. According to the decision of the Court of Appeal, the sum is divided rateabl}' between shipowners and cargo-owners. On the whole, therefore, the decision of the House of Lords strongly favours cargo- owners at the expense of the shipowners. It follows from the above decision that where both ships Ripht of in- are to blame there arise, not cross liabilities, but a single ^^^^^] "'"|er liability for a balance upon the owners of the ship that has clause, sustained the smaller damage ; and therefore the shipowners to whom the balance is payable are not entitled, whether on behalf of themselves or of their under^vTiters on ship, to recover against underwriters who have agreed to indemnify them against " loss or damage to any other vessel," they being under no liability in respect of such loss or damage (p) . Where two shijis, A. and B., are both in fault for a Division of collision, and the fault of B. is entirely that of the com- l^pTs^^;'' ''"^ pulsory pilot {q) in charge of her, the owners of B. will charge of a recover half their loss against A., whilst the owners of A. pUot. can recover nothing. Her owners are not liable at law, and no damage lien attaches to the ship. But the fault of the pilot affects the owners of B., and the owners of I'argo on board her, to this extent : it brings into operation the rule as to division of loss, and prevents them from (m) £24,000 -£8,000. Slramsfiip Co., 24 Q. B. D. 32 ; on (o) £24,000 -£4,000. appeal, i//(r/. 663. (ju) 'T/ie Loudon Steamship Assxr- (c/) See below, p. 227, as to coin- ancc Association v. The Grampian pulsory pilotage. 142 THE RULE AS TO DIVISION OF LOSS. recovering more than half their loss (r). Moreover, though successful upon their defence of " eompiilsory pilot," they will obtain no costs (.v). In the ease last mentioned the owners of the ship in charge of the compulsory pilot are entitled to judgment for half their loss, without deducting anything on account of the loss of the other ship. The principle of the decision in The Khedive [t) does not apply in such a case. The Hector. The case of The Jleefor {ii), in which these points were decided, was as follows : — A collision occurred between The Augustus and The Hector, caused by the fault of the crew of The Augustus and the fault of the compulsory j)ilot of The Rector. The rule as to division of loss was applied. The loss of The Augustus was 3,000/. ; that of The Hector 8,000/. It was contended that the owners of The Rector could recover only 2,500/. {i.e., half her loss, namely, 4,000/. less 1,500/., half the loss of The Augustus) ; that this resulted from the decision in the case of The Khedive {v), considered with reference to 17 & 18 Vict. c. 104, s. 388. The Court of Appeal declined to apply the principle of the decision in The Khedive, a case where the owners of both ships were liable, to the case before them, in which the owners of one ship were not liable at all [x). An agreement between the shipowners that both ships, A. and B., were in fault, does not prevent the owner of cargo on board B., in an action by the owner of A. to [r] The Hector, 8 P. D. 218 ; The Co., 7 App. Gas. 795. Demetrius, L. K. 3 A. & E. 523. {x) The dictum of Brett, L. J., in The ownerH of cargo on board B. Chapman y. Royal Netherlands Steam are in the same case: The Milan, Navuiation Co., AV. T). \hl ,\%A,iot\ie Lush. 388 ; but see The Jiernina, 12 effect that the phrase " answerable P. D. 36, 58. in damag-os " in sect. 54 of 25 & 26 (») The llifjlxmjH Minde, 8 P. D. Vict. c. 63, is applicable to the last 132. stage of the litigation between the it) 7 App. Gas. 795. ships, that is, to half the difference hi) 8 P. D. 218. between the losses on the two ships {v) Stoonivaart Maatschappy Ne- respectively, cannot, after this de- derland v. P. % 0. Steam Navigatiott cision, be supported. COMPULSORY PILOT : CARGO-OWNER. 143 limit his liability, from asserting that A. was alone in fault ; and lie is entitled to an issue upon that question (//). The rule as to division of loss where both ships are in CoUiHion fault was recently hold by the Court of Appeal to apply of thrsame^^ where a cargo o^v'uer was suing the shipowner for loss o.«'ncr ; incurred in a collision between the carrying ship and owners of another ship belonging to the same owners, caused by the ^*'*&°* fault of both sliijis (~). The shipowner was protected from liability for the negligence of those in charge of the carrying ship by the terms of the bill of lading. It was held that he was nevertheless liable in tort (a) for the negligence of those on board the other shiji ; but his liability was for half only of the loss ; in respect of the other half of the loss, it was held that he was relieved by the bill of lading. It follows from the above considerations that the rule The rule gives 1 f ■ • p -i • J 1 i'i" i-i and also takes as to division or loss is not merely a restriction upon the ^^^^ ^j. common law doctrine of contributory negligence. It not abridcres a . remed}'. only gives a remedy where by the common law there is none, but it also abridges a right which formerly existed at law, but now does not. "When both ships were in fault the innocent owner of cargo on board either ship could formerly have recovered at law the whole of his loss against the owners of either ship. In Admiralty it was Cargo owner held that he could recover no more than half his loss only half Ms against the owner of the other ship (b) ; and since the ^oss in tort. Judicature Acts the rule is now the same at law. In an action framed upon the contract of carriage, the rule as to di\'ision of loss has no application. In such an action the cargo owner can, subject to the terms of the bill of lading, recover full damages upon the contract of carriage {r). (!/) The Jy'aro, VSV.!). 2i. also in Canada: T/ie Eliza Keith (z) Chartered Mercantile Bank of and The Laixjshaw, 3 Quebec L. India V. Netherlands India Steam R. 143. Qu., whether these cases Navigation Co., 10 Q. B. D. 521. are affected by The Bernina, 12 ((0 Cf. Ilatni V. Ciilli/urd, 4 C. T. D. oS ; 13 App. Cas. 1. See P. D. 182. ' ^«Lord Esher, M. R, 12 P. D. 83. (A) The Milan, Lush. 3S8. So (c) The Bushire, Ad. Div., 24th 144 THE RULE AS TO DIVISION OF LOSS. The rule applies where a ship is ' ' deemed to be in fault." Not in case of joint tort- feasors. Nor under Lord Camp- beU's Act. Whether the rule applies where each ship is negli- gent, but one might with ordinary care have avoided the collision. The Hector {nhi supra) also shows that the innocent owner of a ship injured by fault on the part of her compulsory pilot, and also on the part of those on board the other ship, is, by the rule of division of loss, deprived of the right which, it seems {d), he formerly had, of recovering full damages against the owners of the other ship. Tlie rule of division of loss applies where one of the ships is guilty of negligence in fact, and the other is "deemed to be" in fault for infringement of the Regu- lations (e). So it would apply where both ships were held in fault under the statute. It does not apply where two ships are to blame for a collision with a third ; in such a case the decree is against both for the whole loss {ee). Nor does it apply to actions under Lord Campbell's Act, consequently the plaintiff in such an action will recover full damages. The High Court of Admiralty had no jurisdiction to entertain these actions, and the Judicature Act, 1873, s. 2o, sub-sect. 9, did not apply the rule of division of loss to them (/). It has been doubted whether the doctrine of the well- known case JJavies v. Mann applies at all in Admiralty ; whether in the case of a collision between ships a ship guilty of negligence such as that of the donkey-owner in Davit's V. 3[ann could recover more than half her loss. It was assumed in a case in Ireland [g) that in such a case March, 1885 ; the dictum of Brett, M. R. (10 Q. B. D. 5.38), apjjlies to actions in tort. As to the law in America on this point, see p. 286, infra. {d) Qu., whether the fault of the pilot is contributory negligence affecting the shipowner '; see Spaight v. Tedcastle, 6 App. Cas. 217, infra, p. 24 1 ; The Encryu, L. R. 2 A. & E. 48 ; Dndnian v. l)uhlin, Ssc Board, Ir. Rep. 7 C. L. 518. {e) The Voorwaarts and Tlie Khe- dive, 7 App. Cas. 795 ; Chartered Mercantile lUuik of India, if-c. v. Netherlands India Steam Xavujation Co., 10 Q. B. D. 521 ; The Ilochnny and The Lapiriiirj, 7 App. Cas. 512 ; The Vera Cruz (No. 1), 9 P. D. 88 (revd. on another point, 9 P. D. 9G). {(•e) The Avon and The Thomas Joliffe, L. R. 1891, P. 7. (/) The Bernina (No. 2), 11 P. D. 31 ; 12 P. D. 58; H. L. nom. Mills V. Armstronq, 1.3 App. Cas. 1. In The Vera Cruz (No. 1), 9 P. D. 88, Butt, J., applied the rule in such an action where the proceed- ings wei'c in rem. This part of his judgment was rendered inoperative by the Court of Appeal holding that there was no jm-isdiction ?m rem under Lord Campbell's Act (9 P. D. 96). ((/) The Meteor, Ir. Rep. 9 Eq. 567. In The Vera Cruz (No. 1), 9 DIVISION' OF LOSS — HISTORY OF IIULE, 145 Davies V. Mdini has no application ; and lliat wliero a vessel is negligent she will be liable for lialf the loss, though the other might with ordinary care have avoided the collision. But there seems no ground for making a distinction between law and Admiralt}' as to the legal consequence of a particular act of negligence. Tlie loss will be divided only whore each ship is guilty of negligence contributing to the collision (//). Note I. History of the Rule as to Division of Loss in Encjiish Law. The history of the rule as to division of loss in the English Admiralty during the last two centuries (1677 — 1890) is as follows (/) : — The earliest application of the rule during that period was in 1677. In that year Sir Eichard Lloyd con- demned the owner of the defendant ship in half the loss of the plaintiff ship and of repairs rendered necessary by the collision (A-). No reason is assigned for dividing the loss. In 1692 the rule was applied by Sir Charles Hedges (I) as be- tween two ships at anchor in Eamsgate Eoads. The decree states that the collision was accidental (crts»yo/Y?«Vo), and that therefore {m) the loss on the plaintiff ship and cargo (which was totally lost) was to be deemed to have been caused by the P. D. 88, Butt, J., appears to have ences to which -will bo found iu been of opinion that, but for the Table of Cases, ante. Admiralty rule, the plaintitf could {k) IFarper contra Gravnior, The have recovi'red nothing. See fur- Lau)h and The Adventure, Gth July, ther, on this subject, supra, p. 18. 1677 ; afHrmed by the Delegates, [h) The Itona and The Ava, 2 7th May, 1G7S; see also the order Asp. M. L. C. 182 ; The Frankland made by the Admiralty Court, 11th and The Kestrel, L. R. 4 P. C. .529. Dec. 1G79. (i) The following cases, all of (/) Sitting for the judge of the •which, prior to lluij v. I.e Xerc Admiralty. So in the last case, (1824), are unreported, are taken Sir 11. Lloyd sat for Sir L. Jenkhis. from the record books of the High At this date, and for many years Coiu-t of Admiralty and of tlio after, surrogates were appointed Court of Delegates, the Coui-t of by the judge to sit in his place, appeal from the Admiralty. The [m) ''Ex quo, quod sibi constat, series of records from about IbGO iHcto iiari co/lisionem ex Feiree {mas- downwards is very complete. For ter of 'The Jfari/ of Weymouth, tha a further statement of the cases, At^owA-.xnt fi\nii),et nautaruin suoruin .see Marsden's Admiralty Cases vulpd et negitgentid qiiadamtcnus pir- (Clowes & Sons, London), refer- 146 . THE RULE AS TO DIVISION OF LOSS. fault of. tlie master and crew of the defendant shixD (n). In The John M\d. 1695 tlie rule was again twice applied by Sir C. Hedges. In The Mary ^^^ ^^^^ / ^J ^^ reason is assigned ; in tlie other ( p) it was ex- Little Betty pressly found that the loss of the plaintiffs {The Little Betty ^^^^T/^^ '^'^""^ owners) was caused by the fault of the master and crew of (169o). ■' "^ . The Jonas, the ship sued ; therefore (the decree contmues), The Jonas owners are justly liable to make good to The Little Betty owners a certain part of their loss ; but since, by reason of the difficulties of proof, it was impossible to determine the amount of damage caused to each ship by the other, the judge, following the universal rule of the maritime law, con- demned The Jonas owners in half tlie loss of The Little Betty owners. It will be observed that in this case no decree was made against The Little Betty owners ; nor was it found, in terms, that their ship was in fault {q). Tlie Hopeu-eU The rule was next a^jplied in 1698 by Sir C. Hedges in and The Pros- ^ ^^^ where each ship suffered iniurv, and each claimed damages against the other. The interlocutory decree was to the effect that the damage done to each shij) ought to be borne by both ships, share and share alike ; viz., half of the damage suffered by The Hopewell to be paid by the owners («) Treiv c. Peirce, The Mary of tarum suorum culpa et negligentia, Poole and The Mary of IFeymotith, dictamque submersionem eisdem 7tli July, 1792. Tliis case was merito imputari de jure debere; appealed, but the appeal seems to ideoque prtefatos Henricuin Linds- have come to a premature conclu- kill et socios, proprietaries cjusdem sion. The last entry in the As- na^•is The Jonan of Whitby, ad cer- signation Book, dated 5th Nov. tarn damni partem luendum et 1693, is as follows : Domini ad pcti- exsolvendum condemnandos fore iioncm Miller (the appellant's proc- de jure debere (Judex) pronuncia- tor) decreverunt partes uppellatos vit. Cum autem, ob iucertitudi- attachiandos fore. The vessel sunk nem ex varietate et contrarietate was a small vessel and of no great depositionum tcstium hincinde ex- value, aniinatorum proveniente, certa pars (o) Fantley c. King, The John and damni, quota est quam altera pars The Mary Pose, 4th Feb. 1695. alteri dedit, liquidari havid possit, [p) Bcclcham c. Chapman, The Dominus Judex antedictus, dispo- JAttle Hetty and The Jonas, 20th sitionem juris maritimi apudomnes Jan. 109 5. reccptissimi sequeus, prsefatum [q) The judgment in this case Ilenricum LindskiU et socios . . . was by way of iuterlocutoiy decree ; unam medietatem damni in hSo no sentence was porrected or read. parte sustenti Jacobo Beckham et The following is an extract from sociis . . . solvere debere pronun- the Act on the file. The decree ciavit." And the decree, after states that The Little Betty and her reciting that the whole of the loss cargo were sunk and lost — "ex on The Betty and her cargo was prfefati Jacobi Chapman magistri 453/. 16.s., condemned the defen- iiavis The Jonas of IVhithy ct nau- dants in one-half — viz. 226/. 18s. ITS TITSTOUY TX KXflT.TSTI I,\W. 147 of The Proaperous^ and lialf of the loss of The Prosperous to be paid by the owners of The IlopexocU. So much as is here quoted of the registrar's minuto is in I'liiglish; the •vrords appear to have been taken down as tlicy fell from the judge. No reason is given for the application of the rule (r). Upon a subsequent day(«) the judge found that the damage to The Prosperous amounted to 250/., and that to The Ilopeivell to 60/., and he condemned The Hopewell owners in the difference between the halves of these sums, namely 9.5/. The next application of the rule was in 1702 by Dr. The Jn-emiah Bramston, sitting as surrogate for Sir C. Hedges (/). The ^^/^^^-wiyoo]. interlocutory decree finds the collision to have been caused by the fault of the master and crew of the defendant ship. The Providence, and the rule of division of loss is stated to have been applied upon the same grounds as in Beckham c. Chapman {The Little Betty and The Jo7ias, stipra). Again, on the 14th of June, 1706, the rule was applied by TheAdccnture Dr. Bramston in The Adventure and The Supply {u) ; and on ^P , '^i-qan the 23rd of October, 1700, in The Blessiny and The Ifilliam and John (.r). The decrees in both these cases are in almost exactly the same terms as in 77ie Jeremiah and The Provi- dence, and the reasons stated for the appHcation of the rule are the same. In these last three cases the plaintiff ship was sunk with her cargo and totally lost ; the defendant does not appear to have suffered any loss, or, at least, to have made any claim except to be dismissed with his costs. It will be observed that the finding upon which the decree proceeds is that the plaintiff's loss was caused by the fault of the de- fendant ship ; there is no finding that the plaintiff ship was in fault. Up to this time the rule does not appear to have been The Manj and applied or recognised by the Judges Delegates, the Court M706)' '^"'' of appeal from the High Court of Admiralty, a tribunal (;•) Bcni^en c. Humble, The Hope- (in Record Office) 3G2 ; Act Book, u-cll aud The Frosperous, 9th May, fol. 107, A. 1698. The Act ou the tile is to the [u) Nom. MarsingiU c. Taylor; same effect: see Act Book, p. Sj. Assignation Book, vol. 368; Act (a) 26th May, 1698. Book, fol. 533. \t) Mason C.Johnson, The Jeremiah (.r) Kiehrner c. Cochlin, Ad. Act and The Trovidenee, 11th March, Book, fol. 1. 1702 : see Assignation Book, No. 148 THE RULE AS TO DIVISION OF LOSS. consisting of two or more of tlio common law judges and civilians. In the same year (1706) in wliich, Marsingill c. Taylor was decided Dr. Bramston applied the rule in The Mary and The Rchecca, Noden c. Ashton (y). In this case it was expressly found that both ships were in fault ; but the sentence states that, on account of the impossibilit}^ of deter- mining upon conflicting evidence what proportion of the damage suffered by the plaintiff ship was properly attribut- able to the fault of the other, the rxisticimi judicium was applied, and the defendant was condemned in half of the plaintiff's loss {z). This sentence was affirmed on appeal by the Delegates (a). The Korih In 1712, the Delegates varied a decree of Sir C. Hedges, Liion and r;^e . j^- -j^ ^ ^^^ dismissed the defendants, the owners of The Phccnix, without costs (5). The Delegates declared "that half of the damages sustained by The North Lyon in the ship and goods, amounting to the sum of 3,154^. 18s. 5hd., ought to be paid by Western and others, parties appellate in this cause, and did condemn them accordingly^ in the said sum, and in the further sum of 200^. for costs of sute " (p). Upon a sub- sequent day, at the petition of the owners of eleven-sixteenths of The Phanix, the Delegates decreed a monition against the owners of the other five-sixteenths of The Phoenix for their proportion of the damages and costs, the owners of the eleven- sixteenths undertaking to pay their proj)ortion of such damages and costs. The Thomas The next reference to the rusticum judicium is in the year and Jane and (y) 20th June, 1706. gente.s in hac parte receptissimi se- (z) The following passage is ex- quentes, dictum Johannem Ashton tracted from the sentence: "Nos magistrinn dictpe navis ^'Ae iM(;cc« Surrogatus antedictus cundem in una medietate damni prasdicti Johannem Ashton ad certam damni condemnandum fore de jure debere prscdicti partem luendum et ex- pronunciamus, decerminus, et de- solvendum condcmnamus et de- claramus, sicque condemnamus, cemimus. Cum autem ob incertitu- &c." dincm ex varietate et contrurietate («) Ward, B., Smith, B., Dor- depositionum testium hincinde ex- mor, J., and Drs. Oldys, Tindall, aminatorum provenientem cei'ta Pagit, and Herriott, were the pars damni quota sit quam altera judges. pars alteri dedit liquidari et ad- (//j Gull c. Carsivell, The North amussim {i.e., exactly, by rule; Z//om and The Phwnix, 26th May, amussis, a w'orkman's rule) taxari 1709. haudquaquain po.ssit, Nos, disposi- (c) Gull c. Cursicell, 19th Dec. tionera Jiiris Maritimi apud omnes 1712. ITS HISTORY IN ENGLISH LAW. liO 1726, in The Thomas and Jane and The Isabella. In that case The Isabella Sir Henry Penrice, Judge of the Admiralty Court, found that tlio plaintiff had failed in the proof of his libel {drfecisse in probationibus), and dismissed the defendant without costs (rf). The question of dividing the loss appears, however, to have been agitated ; for in the registrar's minute book, before the note of the decree, is an entry to the effect that the j udge assigned the cause to a future day, to bo heard upon argument of the question, "AVhether the rusticum judicium can be admitted in this case ? " These words are struck out, and the words follow stating the effect of the decree as above mentioned. After twenty years (1746), the rule again appears in a case The Eagle and decided by Sir Henry Penrice (e). At this date the proceedings ^(i'^Q^'f''''^^ in the Court of Admiralty were carried on in Enghsh. The judge pronounced "that the loss of the said ship(77ie Eagle) and cargo, from the groat contrariety of the evidence, was so uncertain, that he did adjudge and decree the damage sus- tained by the loss of the said ship and cargo to be equally payd and borne by (plaintiffs and defendants), and therefore condemned Farrer's clients (defendants) in a moiety of such damage." Up to this point, therefore, we find the application of the Summary of n 11 ~r -, n'-" • • 1 cases piwious rule to have been as follows : — In 16^ / no reason is assigned ^^ ^-^^^ for its application. In 1678 it is applied where the colHsion was in fact without faidt in either ship {casu fortuito), but fault was presumed against the defendant ship. In 1695 it is twice applied ; in one case no reason is assigned, in the other there is an express finding that the collision was caused by the faidt of the defendant ship (yy., alone?), and the rule is applied because it is impossible to say how much damage was done by the one ship to the other. Hitherto there had been no cross claim by the defendant, and, except in the first case, the plaintiff: ship and cargo had been totally lost. In 1698 a case occurs in which both ships are injured and each claims damages against the other. The ride is applied for the same (rf) llced c. Wellford, The Thomas (c) Xohlc c. Wihot, The F.aglc and Jane and The Isabella, 20th Jan. and The Hopewell, 28th Nov. 1746, 172G. 150 THE KULE AS TO DIVISION OF LOSS. reason as before, namely, because of the impossibility of apportioning the loss suffered by each ship by reason of the negligence of the other ; but there is no finding that the plaintiff ship is in faidt ; on the contrary, it is found that the collision is caused by the fault of the defendant ship. In 1702, and twice in 1706, the rule is applied, for the same reasons as before, the finding being in each case that the collision was caused by the fault of the defendant ship, and no claim for damages being raised by the defendant. In 1 706, and again in 1709, the rule is apphed by the Delegates, upon appeal from the Admiralty ; in the one case the reasons stated are the same as before, in the other no reasons are given. In 1726 we find the Admiralty Court dismissing the defendant, because the plaintiff had failed in proof of his libel, i. e. in proving fault on the part of the defendant ship. Twenty years later (1746) the rule is applied because the cause of the plaintiff's loss is uncertain, no fault being found in either ship. For forty-three years after this we find no mention of the rule, though several collision cases appear in the record books, in some of which the plaintiff recovers full damages, in others the defendant is dismissed. History of the The Eagle and The Hopewell is the last appearance of the ruk Hince riiaticum judicium until 1789, the year in which the well- known case of The Fetersficld and The Judith Randolph oc- curred. It is singular that in that year three cases were decided, in which the rule of division of loss was applied ; in two of them by the High Court of Admiralty, in the other by the Delegates. It will bo convenient to take them, as before, in order of date. neTctrnpld Qn the 20th of May, 1789, Sir James Marriott, Judge of ^^udia'lian. the Admiralty Court, in The Petersfeld and The Judith dolph{llSd). Randolph {/), pronounced " that both ships were in fault; that The Judith Randolph was most in fault ; and decreed that the whole of the damage sustained by the owners of the ship Petersjield and her cargo, which was sunk and lost, as well as the 230?. damages and expenses given against the (/) lu the Assignation Book, nom. Wddinan c. Blakcs, ITS HISTORY IX KNGLISII LAW. 151 ship Petersjield, and tho costs of suit liero on Lotli sides, be borne equally by tho parties in this suit." This appears to have been tlio lirst case in whicli the 7-usticum judicium was applied witli an express decision that both ships were in fault ; the only case in which, according to modern authorities, it is now applicable. It is worthy of note that so important a point of maritime law should appa- rently have been undecided so late as the year 1789 ; and that a decision extending the operation of the rule of dividing the loss should never have been challenged. The next case in order of date is The Friends Goodwill and The Friends 'The Peggy {g). This was a decision of the Delegates varying a j/,^ I'egnij decree of Sir J. Marriott. In a previous year (9th December, (1789). 1785) that learned judge had pronounced that The Peggy, tho defendant ship, was alone in fault, and condemned her owners in full damages and costs. The case was appealed, and on the 7tli of July, 1789, tho Delegates (/() "pronounced for the appeal made and interposed in this cause, and that the judge from whom the cause is appealed hath acted wrongfully, nully, and unjustly ; reversed the decree of the said judge, and in the principal cause (ah-eady by them retained) did pronounce that the master and crew of each of the said shijis Friends Goodwill and Peggy contained in the proceedings of this cause were equally blameable in their conduct as to tho said two ships running foul of each other, and by which means the said ship Friends Goodwill and cargo were totally lost ; that the Iqss or damage occasioned T)y the aforesaid accident, and all costs, charges, and expenses incurred or to be incurred on account thereof, ought to be borne, paid, and sustained by the said John Stoker and Robert Hutton, the owners of the said ships, in equal moictys, and share and share alike ; and further pronoimced (in presence of the said report) (?), that the value of the said ship Friends Goodwill, at the time she was sunk as aforesaid, was nine hundred pounds, and the cargo of the value of one hundred pounds and live [g) Kom. Hutton c. StoJcer. {i) The parties had agreed that (/() Gould, J., Ashurst, J., Ho- the Court should take the report tham, B,, and Dr. Fisher, ^vere the of three Trinity masters upon the judges. merits of the case. 152 THE RULE AS TO DIVISION OF LOSS. pounds five sliillings, and condemned the said Eobert Hutton, Sh.ei:)lierd's party, in the sum of five hundred and two pounds twelve sliillings and sixpence, the moiety of the value of the said ship and cargo, and at the petition of Cooper decreed a monition against the said Eobert Hutton for payment of the said sum in fifteen days after service of the same, not to go under seal till after fiiteen days from hence ; and the judges directed the costs on both sides, as well in this Court as in the Coiu't helow, to be borne and sustained by both parties in equal proportions, and referred the bills on both sides to the registrar, and assigned to hear on taxation of costs the first session of next term ; present Shepherd and Cooper." It is evident from the various orders made in this case that the Delegates had very great difficulty in arriving at a decision. The two Trinity masters by whom they were assisted differed in opinion as to the merits, and by consent of the parties a third was called in. The P.csohdion The third case of the year 1789 was The Resolution and ioM (1789). The Lang to7i{Ji). This is in one respect the most remarkable of the three cases, for in it Sir James Marriott decided, in terms apparently chosen in order to raise the question whether the rusticum judicium may be aj)plied where the collision occurs without fault in either ship, that it did apply to such a case ; and from his decision there was no appeal. The registrar's note of the interlocutory decree is as follows : — " Sir J. Marriott, Judge, pronounced that the loss of the ship and cargo of The Resolution was not occasioned by the default of the masters and crews of either of the shij)s in ciuestion, but was an inevitable accident, owing to the show- ring weather, the darkness of the night, the small distance of the two ships, and shortness of time in discover'ing each other, being close ; and the judge decreed that the damages on the loss of the ship Resolution and her cargo, as well as the damage done to the ship Langton, together with the costs of suit on both sides, be equally borne by both parties ; and assigned each party to bring in a schedule of their damages ; (/c) Xom. Xehon c. Fawtctt iu the Assigtiation Book, ITS HISTORY IN ENGLISH LAW, l53 which being broiig-ht in the judge referred the same to the registrar, taking to his assistance two merchants" {I). It slioukl be added that in the year (1788) previous to T/ie Three that in which the tliree last-mentioned cases were decided, -f'','^''''^'";* and occurred the case of The Three Relations and The Britatiiiiaiin). (1788). There Sir James Marriott pronounced that " under the cir- cumstances of the case, each party should stand by his own damage and exj)enses." "What the circumstances of that case were, does not appear from the registrar's minute book, from whicli the decree is here cited. The decree is imusual in form ; the common form, where (as here) fault is alleged and not proved, being to the effect that the plaintiff's libel not having been proved, the adverse party be dismissed from further observance of justice in the cause. It is singular that during the long period («) during which Lord Stowell presided over the Admiralty Court no case oc- curred in which that distinguished exj)oncnt of maritime law had occasion to apply the rule of division of loss. Two cases should, however, be here mentioned, both of great importance in the history of the subject. In The Woochop Sims, decided Lord by Lord Stowell (then Sir William Scott) in 1815, and in The Stowcirs Lord Melville, decided in 1816, occur the dicta of that learned Womh-op ,Sims judge with reference to the incidence of loss in case of collision, ^°'^ '^^'^ -^"'''^ which, having been cited and approved by Lord Giffard in Ilai/ V. Le Neve in the House of Lords (o), have for the last half- century been relied on as containing an accurate statement of the law of the English Admiralty with reference to the incidence of loss in case of collision. These dicta — one of which is quoted at length on a former page (p) — divide collisions into four classes: (1) where the collision is caused by the fault of the defendant ship ; (2) by the fault of the plaintiff ship; (3) by the fault of both ships; (4) without fault (l) This decision is in accordance («) Thirty years, 179S-182S. •with the stiitomont of the law in (o) See JFai/ y. £c Xevc, 2 Shaw's Brown's Admiralty Law, vol. 2, (Sc.)App. Cas. 395, where the dicta p. 206 : "In case of accident the are set out. T/ic Woodrop Sims is loss was divided between both par- reported in 2 Dods. 83 ; The Lord ties in equal proportions." Melville is not reported. {m) Faije e. Graham, 'l^ih.'iS.a.viih, (p) Supra, ii. 125. 1788. 154 THE RULE AS TO DIVISION OF LOSS. in cither ship. The rule of division of loss is declared to 1)0 applicahle only in the third case, namely, where the collision is caused by the fault of both ships. Before dis- cussing the accuracy of tliis statement of the law, it will be convenient to trace the api)lication of the rule by the light of the decisions subsequent to the year 1789. Hayv.Le In 1824 Hay v. Lc Neve was decided by the House of Keve. Lords. That was an appeal from a decision of a Scotch Court, which had apportioned in unequal shares (y) the loss suffered by a vessel, The Wells, which had been sunk at her anchor by The Sjjriyhtlij. The House of Lords varied the decision of the Scotch Court, and, relying upon the dicta of Lord Stowell above mentioned, divided the loss in equal shares, and con- demned the owners of The Spriyhthj in half the loss on the The Wells. In that case both ships were clearly in fault ; The Wells for haA'ing brought up in an improper place and for not showing a light, The Sprirjhtly for negligent naviga- tion and want of look-out. The question in dispute was, whether the division of loss should bo in equal shares or be apportioned according to the degree of fault in either vessel. The decision was in accordance with Lord Stowell's dicta, and, it may be added, with an unbroken line of authorities for a period of at least 146 years, in favour of an equal division. But there was no decision that the rule of division of loss was confined, as stated by Lord Stowell, to the case of " both ships in fault." Nevertheless, since the decision in The Resolution and The Lanyton the rule has never been applied, except in the case of "both ships in fault"; and the dicta of Lord Stowell, having acquired additional weight by the citation in the House of Lords in Hay v. Le Neve, have been taken apparently without discussion, to settle the law. Thus in The Catherine of Dover {r) (1828) Sir Christopher Eobinson, in addressing the Trinity masters, stated the law as follows : — " The result of the evidence wiU be one of three alternatives ; {q) The ^pnghthj was condemned actions, and Dr. Lushington dis- in two-tliird.s of tlio los.s sufiered by missed both for want of proof ; The The WellH. Laconia, 2 Moo. P. C. C. N. S. 161 (?•) 2 Hag. 14o. Cf. also The (1863), where a similar order was Maid of Auckland (1848), 6 Not. of made by the Privy Council ; The Cas. 240, whore there were cross Marpvsia (1872), L. R. 4 P. C. 212. ITS HISTORY IN ENX.LISH LAW. lOO either a conviction in your mind that the loss was occasioned by accident, in wliicli case it must be sustained by tlie party on Avhom it has fallen ; or a state of reasonable doubt as to the preponderance of evidence, which will have nearly the same effect ; or, thirdly, a conviction that the j)arty charged with being the cause of the accident is justly chargeable with the loss of this vessel according to the rules of navigation which ought to have guided them. " It I'emains only to mention the case of The Monarch and The Monarch The Success, decided by Sir Christopher Eobinson on the 23rd ^ '' of June, 1838, as being the next in which the nisticum Judicium was applied. There the judge pronounced " the collision in question in this cause to have been caused by the fault of the masters and crews of the said ship or vessel Monarch and the late smack Success, and for a moiety only of the damages proceeded for, and condemned [the owners of The Monarch^ and tlie bail given on their behaK to answer the action in a moiety of such damage and of the costs incurred on behalf of [the owner of The Success^ in this cause "(«). This decree was subsequently, on the 31st of January, 1839, rescinded by Dr. Lushington as regards costs ; and by a new decree he pronounced the parties "to be liable to the costs incurred on their own behalf only "(0- This completes the history of the application of the rule. History of the so far as the present writer has been able to trace it by an ^^ 'l**^"*^'^ examination of the Admiralty records. Since the year 1838, the date of the decision in The Moyiarch, the number of collision cases has been very large, and the nisticum jucliciuyn has been frequently applied ; but always, it may be safely assumed, in cases of " both shijis in fault. " In The Oratava and The Janet, nth May, 1839, and The London 3Ierchant, 20th May, 1840, it was so applied ; and beyond this the examination of the minute books has not been carried. It may be assumed that if, since 1840, the rule had been applied in any case of " neither ship in fault, " or " insufficient proof," such a case would have been reported ; and no such case appears in the books. It (a) This is the case called Th' to The Celt, 3 Hag. 321. Monarch, and referred to in a note {/) The Monarch, 1 W. Kob. 21. 156 THE RULE AS TO DIVISION OF LOSS. may, therefore, be taken to be a fact that for fully a century (since 1789) the riile has only been applied in cases of "both ships in fault"; never in the case of "neither in fault," or in the case of " insufficient proof . " Nay, further, in such cases the plaintiff's action has invariably been dismissed, and generally with costs. Several instances of this will be found referred to in a former page {u). Yet neither has the decision of Sir James Marriott in The Resolution and The Lanyton, nor have any of the previous decisions between the years 1677 and 1789, in which the rusticnm judicium was applied in cases of doubt and mere accident, been reversed, overruled, or, so far as the writer is aware, even referred to {x) or discussed. Not having been reported they appear to have altogether escaped observation ; so much so that in Ilatj v. Le Neve (1824) Lord Giffard states that the advocates (of whom Dr. Lushington was one) who appeared in that case, in answer to a question from the House, acknowledged that they were not aware of any case in which the rusticum judicium had ever been applied in England. A note of The Petersjield was supplied to the House by Lord Stowell, who was a member of the House, but does not appear to have heard the appeal. It is singular that that learned judge was not (it seems he was not) aware of the decisions in The Eesolution and in The Friends Goodwill, both of which occurred in 1789, the year of the decision in The Petersjield, and of which one was in direct conflict with his dicta in The Woodro]) Sims and The Lord Melville. It remains to be decided whether the decisions in The Eesolution and earlier cases applying the rusticum judicium in cases of doubt and mere accident are law at the present day. Notwithstanding the length of time during which those cases have been ignored, it is not clear that the rule may not even now in Admiralty be applied in the one or both of these cases, which in its ancient and wider shape it was evidently intended («<) Sec the cases cited above, 212. p. 154, note (»•). To these may be (j) In Hat/ v. Zc Neve, a case in added the following' decisions of the rcig-n of Queen Anne was re- Lord Stowell: T/(c i'Vom, 28th June, f erred to {nemble, one of the cases 1815; The Jiobcrt, dih J \mc, 1818; decided between 1707 and 1718 The Vrow JancLc, 2nd Feb. 1820; cited above), but not with I'eference The Betsi/ (James (1827), 2 Hag. 28 ; to the point here under discussion. Tlic Marpesia (1872), L. R. 4 P. D. ITS HISTORY IN ENGLISH LAW. 157 to meet. Its application and limitation to the case of "both sliips in fault " wo have soon is not a century old. It is wortliy of notice that in tlio so-called case of inevitable accident, until recently, no costs were given on either side (y). This rule of the Admiralty, now obsolete, is a trace of the quasi-equitable principle which is at the root of tlie ruslicnm judicium. In the last century the defendant was frequently (2) dismissed without any order being made as to costs ; and though no reason is assigncnl for depriving him of his costs, it seems probable that it was either upon the ground that the collision was accidental, or that both ships were in fault, or that the cause of the collision was left in uncertainty. With regard to the dicta of Lord Stowell in The Wuodrop Sims and The Lord Melville it must be remarked that they are mere dicta, unnecessary for the decision of the cases in which they occur ; that they acquired no additional authority by the extra-judicial approval they received in the House of Lords in Hay V. Le Neve. In The Lord Melville there was no question as to the scope or application of the rusticum judicium, the decision being that the defendant ship was alone in fault. In Hay v. Le Neve both ships were in fault, so that no question arose as to the application of the rule where neither shiji is in fault, or whore the cause of collision is doubtful. The view of the Legislature, as shown by sect. 25, sub-sect. 9, of the Judicature Act, clearly was tliat the rule apjjlies only where both ships are in fault. It cannot be supposed that an Act passed manifestly with a view to make the law uniform in all the Courts, would liavo left the rule of division of loss applicable in Admiralty in case of doubt and mere accident, whilst, for the sake of uniformity, it extended the rule where both ships are in fault to the Common Law Divisions of the High Court. (v) See further as to costs, iw/'yv/, 1G9G ; Tlie Xorth Zi/on and T/ie p. 328. ' /V/(r;;«-, -jeth May, 1709 (ouapp.), {z) E.ij. Dove c. Masters, The IDth Dec. 1712; Bakery. Malin, Elizabeth and The Eleanor, 4th The lUoiier and 'The Amitifs March, 1696 ; affirmed on appeal, Friendship, 2 Sess. Hil. Tenn, 12udi^\uxo,\Q)'d'Si\ Lambert v,.Stmpson 1764: ; Milton c. Maiindrell, The and Larimer c. Lambert, The Friends Blessing and The John and Sarah and The Hopewell, lltli Marrh, (on app.), 8th iS'ov. 1720. 158 THE RULE AS TO DIVISION OF LOSS, Note II. Law of America, France, Law of Foreign Countries as to Division of Loss. In America the rule as to the incidence of loss by collision is the same as that of this country ; except, perhaps, in the case of inscrutable fault, where, according to some writers, the loss is divided : The 2 racy J. Branson, 3 Bened. 341 ; and see 1 Parsons on Sh. (ed. 1869) 527; Story on Bailments, § G09 ; 3 Kent's Comm. § 231 ; Sedgwick on Damages (Gth ed.) 577, note ; but in a recent case before the Supreme Court it seems to have been the opinion of the Court that in sucji a case neither ship could recover : The Clara, 12 Otto, 200 ; and see The Breeze, 6 Bened. 14. Art. 407 of the French Commercial Code is as foUows : En cas d'abordage de navires si Tcvonement a etc purement fortuit, le dommage est supportu, sans repetition, par celui des navires qui I'a oprouve. Si I'abordage a ete fait par la faute de I'un des capitaines, le dommage est paye par celui qui I'a cause. S'il y a doute dans les causes de I'abordage, le dommage est repare a frais communs, et par egale portion, par les navires qui I'ont fait et souffert. Dans ces deux derniers cas, 1' estimation du dommage est faite par experts. The case of inscrutable fault is tliat described in Art. 407 — "s'il y a doute," &c. — that is, " lorsqu'il est impossible de preciser par la faute de qui le dommage est arrive." In this case the French differs from the English law in dividing the loss equally — Abordage Nantique, Caumont, § 151. But the French law agrees with our own in requiring proof of negli- gence to enable the cargo-owner to recover in such a case ; ibid. §§ 154, 155. Whore both ships are in fault, but not to the same extent, the damages are apportioned according to the degree of each ship's fault ; but as between shipowners and third parties, the former are severally liable for the whole of the damages, subject to the right of each to free himself by abandonment of his interest in the ship and freight ; ibid. SS 12, 108, 152. AVhero both ships have been guilty of an infringement of the Eule of the Eoad (manoeuvres ruglemen- IX FOREIGN COUNTRIES. 159 taires), it soems tliat neither can recover; Ihid. § 109. The case of inevitable accident is complicated by attempts to attri- bute the collision partly to "force majeure," and partly to negligence ; ibid. § 94. By the Belgian Commercial Code of 1879 (Bk. II., Art. 228), Belgium, the loss in cases of pure or inevitable accident lies where it falls ; where both shij)s are in fault the sum of the damages is borne by both in amounts proportional to tlie blame of each. (Art. 229.) The law in Germany as to the incidence of loss in tlie four Gonnany cases of collision seems to be the same as that of this country ; except that where both ships are in fault, neither can recover. See German Commercial Code, Arts. 736 — 741. By the Dutch Code, where both ships are in fault, and also Holland when the collision occurs without fault in either ship, each bears her own loss. If there is doubt whether the collision was caused by the fault of one or both ships, or not, the aggregate loss upon both ships and cargoes is made good by a general average contribution between the owners of ships and cargoes. Where a sliip under way goes foul of another at anchor, even if the collision is an inevitable accident, the ship under way has to pay half the loss. These rules apply only to sea-going ships, and not to inland navigation. See the Commercial Code of Holland, Ai-ts. 534 — 540, 756. By the Italian Commercial Code of 1883 (Bk. II., Arts. Italy, 660, 662), if a collision is the result of accident ov force majeure, the loss lies where it falls. If it cannot be decided which ship is to blame, or if both are to blame, each ship bears its own loss, and is liable for the whole of the damage and loss to goods sliipped, and for the compensation for jicrsonal injuries. The provisions of the Spanish Code of 1886, on these Sixain, points (Bk. III., Arts. 826, 827), are substantially similar to those of the Italian, except that the clause relating to personal injuries is omitted. This Code (Arts. 826, 837) imposes on the owner of the ship, by whose fault the collision was occasioned, the responsibility Avhirh iinder the former Code seems to have attached only to the actual wrongdoer (a). [a) See '2nd cd. of this -work, p. 163. 160 THE RULE AS TO DIVISION OF LOSS. Portugal, Russia, Norway and Sweden, Egypt, St. Lucia, Canada. Tlie provisions of the Portuguese Code of 1888 are similar as regards collision occasioned by accident or force majeure to those of Belgium ; as regards cases of doubt or both to blame, to those of Italy. The Eussian Code is not clear as to the incidence of loss. Where the collision is an inevitable accident, and where both ships are in fault, it seems that the loss rests where it falls ; Arts. 835, 845. But in some cases the total loss on the ships, though not on cargo, is borne by the two rateably ; Art. 847. See Eussian Code, Arts. 835—848 (a). By the Codes of Norway (Art. 80) and Sweden (Art. 172), the law as to incidence of loss is the same as that of this country ; except where both ships are in f aidt, in which case the Court decides, according to the nature of the fault and other circumstances of the case, whether any damages are to be paid by one ship to the other, and their amount. By the Code of Egypt (Art. 242), the law is the same ; except in the case of both ships being in fault. In that case the loss is made good by the two ships in proportion to their respective values — proportionnellement d, leur valeur respective. Art. 2360 of the Civil Code of St. Lucia divides the loss where the cause of collision is doubtful ; and also where both ships are in fault. By 43 Yict. c. 29 (Canada) the rule of division of loss is applied to the common law Courts. It applies to collisions between rafts as well as between ships. (a) A new code (see Nautical Magazine, 1884, p. 944) has been promulgated in Kussia, to which the -writer has not had access. Its effect is substantially the same, upon the point under considera- tion, as the former code, which is that referred to in the text. Since the first publication of this ■work, the articles of the foreign codes hero summarized have been collected and set out at length in an article publisht'd in the Nautical Magazine, 1881, p. 537, entitled "The Law of Damages caused by Collisions at Sea," by F. W. Raikes, Esq., LL.D. The statements in the text as to the codes of Norway and Sweden are taken from that article. Translations by the same learned author of the recent Codes of Belgium, Italy, and Sj^ain (the last-mentioned still unfinished) have api^eared in various numbers of the Law Magazine of 1884 — 1891. The references to these Codes are derived from those trans- lations, and the present writer is indebted to the courtesy of the translator for his information re- garding the Code of Portugal. ( IGl ) CHAPTER VII. LIMITATION OF LIABILITY. In this coimtiy the liinitation of shipowners' liability Limitation of depends entirely upon statute. It is said by writers of ^^,^^^^f -^, l^ -I • lit SLtiLUtorv. authority that by the maritime law the shipowner's liability for collision is limited to the value of ship and freight («). "Whether such a rule of the maritime law (b) ever existed, Maritime and it is immaterial here to inquire. Xo such rule has ever foreign law ■■■ upon the been recognized by the Courts of this country, either at subject. {a) 3 Kent's Comm. § 218; 4 Pliillimore's International Law, 2nd ed. 628 ; Valiu snr I'Ordon- nance de la Marine, 1. 2, tit. 8, Art. 2 ; Cours de Droit Comm. Mar. Boulay-Paty, vol. i. 263 — 298 ; Pardessus Droit Commercial, Part 4, tit. 2, ch. 3, s. 2 ; Emcrigon Cont. u la Grosse, ch. 4, s. 11 ; and see pfr Bradley, J., in The Jos. W. Di/cr V. The Nalioual Steamship Co., 14 Blatchf.483,487; and j^er Ware, J., in The Rebecca, Ware's Reji. 188, 195, 198; The Fhebe, Ware, 263. The Consolato del Mare, caji. 141, provides that in certain cases the ship herself, and the managing owner, sliall bo liable to the mer- chant for the loss of his goods, but the other owners only to the extent of their shares : "E si la nau no bastava, e lo Seuyor de la nau ha via bens e altre loch, devcn se n' vendre tanto en tro que 1' mercader sia entregrat ; mas los personers no sien tenguts sino tant solament d'aco que la part valra que Imuran en la nau." So, again, ib. cap. 182, if the merchant's goods arc injured by reason of insufficient ground tackle, the managing owner is to pay for the damage, for which the .ship and all his goods are liable : ' ' Mas los personers no son tenguts de res esmenar sino la part que hauran, en la nau, quealtres bens no.'''' But it seems that for damage caused by their own fault, asAvhere the ship's equipment is deficient, the part owners were liable to the full ex- tent : see ibid. c. 194. Upon contracts with reference to the ship entered into by his agent (committee, in the association called commandc), it seems that the ship- owner was liable only to the ship's value : see ibid. cc. 209, 244, i)ifra, p. 163. (i) As to whether a general maritime law binding upun the Courts of this country ever in fact existed, see per Willes, J., Lloifd v. Guibert, L. R. 1 Q. B. 115, 124 ; per Brett, L. J., The Gactano, 7 P. D. 143; The Leon, 6 P. D. 148; The I'atriti, L. R. 3 A. & E. 436, 461, 462. M 162 TJMITATION OF IJARILTTV. common law or in Admii'alty (c). By the municipal laws of Holland, France, and other continental nations, the liability of shipowners not only for the torts but also for the contracts of the master of theii' ship, has for more than two centmies been limited to the value of the ship and freight (r/). It is perhaps due to this fact that limited liability has been said to be a principle of the general maritime law. But its origin cannot be traced either to the Eoman law or to any of the mediteval codes of mari- time law. In both these systems it is either clearly im- plied or expressly stated that the wrong-doer in a collision shall make full compensation {c) . (c) See The Dund/e, 1 Hag. Ad. 109, 120; The CarUo/iaiiti, reicrred to 3 Hag. Ad. 186 ; The Aline, 1 W. Rob. Ill ; The Tohmt, ib. 383 ; The Mcllona, 3 W. Rob. 16, 20; The Wild Ranger, Lush. 5,53, 564; IFil- son V. Dickson, 2 B. & Aid. 2 ; Gale V. Laurie, 5 B. & C. 156, 164 ; Cope V. Boherty, 4 K. & J. 367, 378 ; Stoomvaart IlaatscJiappy Ncder- lands V. Peninsular and Oriental Steam Navigation Co., 7 App. Cas. 795, 814. The dictum of Parke, B., in Brown v. Wilkinson, 15 M. & W. 398, appears to be incorrect. ((I ) Emerigon Contr. ;i la Grossc, ch. 4, s. 11 ; BouLiy-Paty Cours de Droit Commercial Maritime, vol. i., pp. 263—298. See also The Mary Ann, L. R. 1 A. & E. 8, 11 ; and the articles of foreign codes cited at the foot of this chapter. {e) As to liability for collision by the Roman law, see Dig. lib. 4, tit. 9 ; Dig. lib. 44, tit. 7, fr. 5 ; Dig. lib. 45, tit. 5, fr. 1 ; 3 Kent's Comm. 218 ; per Ware, J., in The Bhche, Ware's Rep. 263; Loccen- tins, c. 8, H. 11. As to the mediseval codes, the Laws of Oleron, Art. 15, clearly assumes that the wrong-doer shall pay full damages — tons scs dommages — tot ses daniiifityes ; see 1 Twiss' Black Book, 108 ; ibid. vol. ii., pp. 229, 449, So the C'onsolato del Mare, cap. 155: " Ji' si dan li fa, deulo U tot esmenar e restituar,^^ but if the collision is accidental, " no 11 sia tengut de esmenar tot lo dan . . . per ceo car no es sa culpa ; " and see ibid. cap. 158, to the like effect. The language of the codes of Northern Eui-ope is the same : Dat Gotlandsche Water- Recht (the Wisbuy Sea Laws), Art. 29 : Be sehippcr is schuldieh myt synen schj- j)luden to delende den schaden mank sik. The Laws of the Osterlings (Hamburgh Code), Ai-t. 23: unless the master of the ship that does the damage swears that he did it un- Avittingly, he schalrnie gansden scha- den betercn ; 4 Twiss' Black Book, 373 ; and in like case by the Got- land Code, Art. 65, so schal hre erne den schaden al hel geldm. And by the Flanders Sea Laws, Art. 15, the master who lays out his anchor so as to damage another ship, si siin dat ivel sculdich te beteren ; and Art. 31 of the Gotland Code in like case he is schuldieh to betercnde ; 4 Twiss' Black Book, 88. So the nile as to dividing the loss assumes that, but for it, the ship run down would recover aJle die schadc (Flan- ders Code), alle den schaden (Gotland Code, Art. 30, 4 Twiss' Black Book, 88). In the Instructions to the Admiral in the Black Book of the Admiralty, dating circ. 1337 — 1351 (1 Twiss, 37), the wrong-doer in a collision is to make plainc amende. ITS ORIGIN AND HISTORY. 103 The contract of comnuoidv, or joint adventure of ship- It originated owners and merchants, corresponding in some respects to ^omlmndT the societe rn conunaiidifc, or partners! lip with limited liabiHty, of modern times, is perliaps the origin of the widespread doctrine of limited liability of shipowners. This kind of association extensively prevailed in the Medi- terranean in the Middle Ages, and is frequently mentioned in the Consolato del Mare (,/'). As regards third parties, it seems that the liability of the shipowner ujoon contracts entered into by his agent, or committee in such an asso- ciation, with reference to the ship, w^as limited to the valuf of the ship(.v). It is not until tlie beginning of the seventeenth century Protection is that we find protectionist doctrines put forward upon ft^^so avowed grounds of public policy as a reason for limiting ship- ^y Grotius. owners' liabilit}'. Grotius, waiting in the year 1G25, says that the principle of Imiitation of owners' liability upon the contracts of the master prevailed in his day, and for a long time previously had prevailed in Holland {/i). And he approves the principle as being consonant with natural justice, and necessary for the encoiu'agement of shipping (/). Liability for collision is not expressly noticed, but the policy of protection, which limited liability in the case of his contracts, no doubt applied equally to protect owners from liability for their master's torts. The rule of conti- nental law which limits the shipow^ncr's liability upon his master's contracts, has never been adopted in England ; (/) See 6 Pardessus Lois Mari- (/;) De Jui-e Belli et Pacis, 1. 2, times, tit. Commandc, Index. ch. 11, s. 18: "Apud Ilollandos (ff) Cf. Consolato del Mare, cap. ul)i mercatura pridcm niaxinie vi- 244: "Qui la dita nau o Icny li fruit . . . et nunc et olim consti- haura comanat, los es tcngut di tot tutum ne exercitoria etiam uuiversi lo dit dan o greuge a restituir, si (exercitores) aniplius teneantur la dita nau o leny nc sabia csscr quam ad lestiniationem navis, et venut. ab que per culpa d'aquell a eorum cpiai in navi sunt." qui ell haura la dita nau o leny (i) '■'■ Abstcrroitur eiiiiii homines coma net, los sia es devengut lo dit ab cxcrcendis iKuibiis si mctuant ne dan o jjreuge." A similar provi- c.v facto magistri quasi in injinitum sion as to the sale of the sliip is ientautur'^ : ibuL contained in cap. 209. m2 164 LIMITATION OF LIABILITY, Analogy of noxal action — nox(e deditio. Connection between limitation of liability and division of loss. Connection between limited liability and arrest of the ship. the liability of a shipowner upon contracts entered into by the master as bis agent having always been, as it is at the present day, unlimited. More than one writer {k) has pointed out the analogy between the law which limits shipowners' liability to the value of ship and the noxal action— ^;o.m' deditio — of the Eoman law. The law of deodand has also been thought to be founded on the same idea— that which personifies the inanimate object (/) which does the injury and identifies it with the actual wrong-doer. In the face of the express provisions of the Code of Oleron and other som-ces of Englisli maritime law, which require the wrong-doer to make full compensation to the sufferer in a colHsion, there is difficulty in accepting this view as to the origin of limited liability. The principle of unlimited liability, which seems to have been adopted from the civil law into the mediceval codes, was to some extent modified by the rule of division of loss in the case of inevitable accident. And in some of the later codes there are traces of the rule of division of loss being extended to cases of coUision by negligence {m). "We have seen in a former chapter that the rule as to division of loss was probably applied somewhat loosely, and without much discrimination as to whether the colli- sion was due to negligence or not. In this way losses by collision were doubtless distributed, and the shipowner's liability was in a sense limited ; but the recognition of the principle of limitation of liability to the value of ship and freight belongs to a later date. In the case of damage done by a ship belonging to foreigners resident abroad, and where service of a writ of summons cannot be effected, the damages recoverable are, {k) See Bynkcrshoelc, Quaest. Jur. Priv. 1. 4, c. 20 ; Holmes on the Common Law, p. 30. [1) See above, pp. Ih seq., as to personification of the ship. {)») See Droit Maritime de la Suede, 3 Pardess. 129, 173, 174 ; Dantzic Sea Laws, Art. 51, 4 Twiss' Black Book, 349. HISTORY IN ENGLISH LAW. lG-3 in practico, limited to tlie value of tlie ship and freight, the res arrested by the Admiralty Court. The statutory limit of liahility is doubtless connected with this fact ; but the arrest of the ship was adopted, in the first instance, in order to compel her owners to appear, and not because their liability was limited to the value of the ship (ii). Tlie history of the singular legislation in this country History of which prevents the sufferer in a collision between ships ip°il,iatioii from recovering damages beyond a sum fixed by reference "pou the to the size of the instrument with which the damage is done, is as follows : Until the year 1734, by the common law of England and by the maritime law as administered in the Admiralty Court of this country, the liability of shipowners for damages by collision was, as has been stated above (o), unlimited. In that year an Act, 7 Geo. II. 7 Geo. II. c. 15, was passed limiting shipowners' liability for loss of cargo by theft of master or crew to the value of the ship and freight (;;). This Act was passed in conse- quence of the decision in Boucher v. Laicfion (q), by which the shipowners were held liable for loss of a cargo of bullion taken on board in Portugal and afterwards stolen by the master. The fact that Holland, and other maritime nations of Eiu-ope, had previously passed similar laws («) The Bold Biiccleugh, 7 Moo. petitioners, after referring to the r. C. C. 267, 283 ; and supra, p. 80. decision, complain that they, " whcu The dictum of Parke, B., to the they became owners of ships, did contrary in Brown v. IFUklnsoii, 15 not apprehend themselves cxiwscd M. & W. 39 1 , is probably incorrect. to such hazard, or liable as owners (o) See supra, p. IGl, note [a). to any greater loss than that of the [p) Sutton V. Mitchell, 1 T. R. ships and freight ; and of the in- 18, is a decision under this Act, supportable and unreasonablehard- that the owners were not liable ships to wliich our laws in this case beyond the statutory limit for a subject them ; and to which no robbery of cargo in which one of owners of siiips are exposed in other the crew was concerned. trading nations ; " and they rcpre- (r/) Cas. temp, llardw. 85; sec sent to the House "that, unless per Buller, J., Yates: v. Hall, 1 T. some provision be made for their E. 75, 7S. JUiHclicr v. Lawson is relief, trade and navigation will be clearly the case referred to in the greatly discouraged, since owners petition of shipowners set out in of ships find themselves, without the Journals of the House of Com- any fault on their part, exposed to mons, Sess. 1733, p. 277. The ruin," kc. kc. &c. 166 LIMITATION OF LIABILITY. for the protection and encouragement of their shipping, appears to have influenced the Legislature in passing the 26 Geo. III. measure (r). By 26 Geo. III. c. 8G, the relief afforded by ^" ^^' the previous Act was extended to cases of theft by persons other than the crew, and to cases of loss by fire {s). Limi- tation of liability in case of collision was first created by .53 Geo. III. 53 G-eo. III. c. 109. This Act, after reciting that it was ^' ^^^' expedient to encourage the owning of British ships {t), fixed the limit of shipowners' liability for damage to other ships and to cargo on board either of two ships in collision at the value of the ship sued and the freight she was earning or under contract to earn. The Act was confined to sea-going British ships, and under it questions arose as to the amount of the shipowners' liability when freight had been paid before the collision {n), or never earned {x), as to the time at which the ship's value was to be taken for the purpose of the Act (y), and as to the ship's appur- tenances which were to be included in the valuation (z). 17 & 18 Vict. By 17 & 18 Vict. c. 104, ss. 504, 505, the same limit 505. ' ^''" ' was fixed for damages recoverable for loss of life or per- sonal injury, with a provision that in such cases the value (>■) See per Lord Stowcll, The either this or the .subsequent Acts Dundee, 1 Hag. Ad. 109, 121; per limiting .shipowners' liability. See Abbott, J., Gala v. Laurie, 5 B. & Commons Journals, vol. 68, p. 670 ; C. 156, 163; iftfra, p. 169; per 133 Hansard's Pari. Deb. pp. 574 Lord Blackburn, 7 App. Gas. 812 ; seq. Upon the Act of 1862 there and see supra, p. 10:3. The Com- was some discussion of details, but mons Journals for the year 1733 little was .said as to the principle or contain several petitions irom .ship- policy of the Act : Hansard, vol. owners for relief in other matters. 165, p. 1932; vol. 166, pp. 2217 Another Act of the .same year— seq.; vol. 167, pp. 735, 750; vol. 53 Geo. 3, c. 87— was passed for 168, i)p. 1 seq. their relief. As to foreign Jaw on («) Wilson v. Bielcson, 2 B. & the subject at the present day, see Aid. 2. the note at the foot of this chapter, (.r) Cannan v. ileahurn, 1 Bing. infra, p. 181. 465. («) Hunter \. 3IcGowan, 1 Bligh, (,y) Brown y. JFiUcinson, 15 M. & N. S. 573, was a decision that this W. 391. Act did not apply to inland craft, (z) The Dundee, 1 Hag. Ad. 120 ; such as a Clyde gabbert. Gale v. Laurie, 5 B. & C. 156 ; The (<) There docs not appear to have Triune, 3 Hag-. Ad. 114, infra, been any considerable discussion in p. 172, were decisions under this Parliament upon the principle of Act. STATUTE NOW IN FORCE. 167 of the ship sliouki be taken at not less than 15/. per ton {a) ; and the statutory limitation was extended to foreign as well as British ships. Under all these Acts the value of the ship and freight at or immediately before the collision had to be ascertained, a fruitful source of litigation and expense. To obviate this (/v), and also in order that bad and '-lo & 26 Vict, inferior ships should not have an advantage, iu case of ' collision, over good and valuable ships (r), the existing Act, 25 & 2G Vict. c. G;i, was passed. That Act (s. 54) struck a rough average value for all ships at 15/. or 8/. per ton, the valuation to be at the higher or lower rate according as the collision was accompanied by loss of life or personal injury or not. It repealed (s. 2) 17 & 18 Yiet. c. 104, s. 504, and enacted (s. 54) as follows : — '' The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur without their actual fault or privity, that is to say : " (1) "Where any loss of life or personal injmy is caused to any person being carried in such ship ; " (2) AVhere any damage or loss is caused to any goods, merchandize, or other things whatsoever on board any such ship ; " (3) Where any loss of life or personal injmy is, by reason of the improper navigation of such ship as aforesaid, caused to any other ship or boat, or to any goods, merchandize, or other things whatso- ever on board any other ship or boat ; be answerable in damages in respect of loss of life or per- sonal injury, either alone or together with loss or damage (rt) Nixon V. liokrtx, 1 J. & H. (Jj) Sec j/rr Lord Blackburn, 7 739; Lcyccstcr v. Loga)i, -1 K. it J. App. Cas. 811, 8lo. 7"25 ; Dnhiec v. Schroder, 6 Sim. (c) Hansard, Pari. Debates, vol. 291 ; 2 M. & Cr. 489 ; Grainger v. IGo, p. 1932, Mr. Milucr Gibson's Martin, 2 B. & S. 450 ; yifrican speech on introducin<; the Bill ; Steamship Co. v. Suanzij, 2 K. & J. Lindsay's History of Merchant 660, are decisions under this Act. Shipping-, vol. 3, p. 108. 168 LIMITATION OF LIABILITY. to ships, boats, goods, mercHandize, or other things, to an aggregate amonnt exceeding fifteen pounds for each ton of their ship's tonnage ; nor in respect of loss or damage to ships, goods, merchandize, or other things, whether there be in addition loss of life or personal injury or not, to an aggregate amount exceeding eight pounds for each ton of the ship's tonnage ; such tonnage to be the regis- tered tonnage in the case of sailing-ships, and in the case of steam- ships the gross tonnage, without deduction on account of engine-room. " In the case of any foreign ship which has been or can be measured according to British law, the tonnage as ascer- tained by such measurement shall, for the purposes of this section, be deemed to be the tonnage of such ship. " In case of any foreign ship Avhich has not been and cannot be measured under British law, the surveyor- general of tonnage in the United Kingdom, and the chief measuring officer in any British possession abroad, shall, on receiving from or by direction of the Court hearing the case such evidence concerning the dimensions of the ship as it may be found practicable to furnish, give a certificate under liis hand, stating what would, in his opinion, have been the tonnage of such ship if she had been duly measured according to British law ; and the tonnage so stated in such certificate sliall, for the "purposes of this section, be deemed to be the tonnage of such ship." Foreign ships' By a subsequent section (s. 60) the Act provides that ounage. upon an Order in Council being made in that behalf, the ships of any foreign country shall, for the purposes of the Act, be taken to be of the tonnage sjiecified in their certifi- cates of registry. Orders in Council of the following dates have been made with resjiect to the ships of America, United States, 30th July, 1868 ; Austria, 19th August, 1871 ; Belgium, 17th October, 1884 ; Denmark, 29th February, 1868, '30th December, 1878; France, 5th May, 1873 ; Germany, 23rd July, 1889 ; Greece, 14th ITS JUSTICE QUESTIONED. 169 August, 1879 ; Ilayti, Grd May, 1882 ; Italy, 30tli Sep- tember, 1873 ; Japan, 27tli January, 1885 ; Netherlands, 3rd May, 1888: Norway, 17th May, 1876, 2nd Feb- ruary, 1884; llussia, 20t]i November, 1880; Spain, 17th March, 1875, and 5th August, 1875 ; Sweden, 17th March, 1875, 3rd May, 1882, and 18th August, 1882 (c). The preamble of 53 Geo. III. c. 129, shows that the justice of Act policy of the Acts limiting owners' liability was delibe- /al plain meaning of the words im- Netherlamh Steamship Co., 4 P. D. port;" and/xvBrett, L. J., 4P. D. 157, 134 ; The Amlahtsiau, 3 P. D. 184 ; G P. D. 136 ; per Dr. Lushing- 182, 190 ; The Ettrick, 6 P. D. 127, ton in The Benares, 14 Jur. 581. 136, <' an Act sufficiently tyrannical {q) The JCarkworth. 9 P. D. 20. as it is," per Brett, L. J. Tliis (//) The Amalia, 1 Moo. P. C. C. opinion has not always been shared, N. S. 471 ; Br. & Lush. 151. measurement. 170 LIMITATION OF LIABILITY. common law (//) . Some Britisli colonies have passed laws which differ in terms and in effect from the Imperial Act(/0. Tonnage The enactments relating to tonnage measurement are 17 & 18 Vict. c. 104, ss. 20—29 ; 30 & 31 Yict. c. 124, s. 9; 34 & 3.J Vict. c. 110, s. 12 ; 52 & 53 Vict, c. 43(/). Questions have arisen as to whether crew spaces are to be included in the tonnage which is the measiu-e of lia- bility. It seems to be decided that such spaces, when not on the upper deck, must in all cases be included, unless the requirements of the Merchant Shipping Act, 1867 (30 & 31 Vict. c. 124), s. 9, have been complied with (J). As these include inspection by the Board of Trade, foreign ships can seldom deduct such spaces. It further seems that the Act of 1867 did not affect the right to deduct crew spaces on the upper deck {k), under sects. 21 (3), and 22 (2) of the Merchant Shipping Act, 1854. The provisions of those sections permitting the deduction have, however, been repealed by sect. 2 of the Merchant Shipping (Ton- nage) Act, 1889 (/), subject, until Aug. 26th, 1894, to certain exceptions. And it seems that now as regards all ships within the operation of that Act (wliich appears to apply to foreign ships), crew spaces can only be deducted under the Act of 1867. In the case of foreign ships, if the foreign measurement differs materially from that under the Merchant Shipping (ff) Chartered ILcrcantile Bank of where BurrcU v. Simpson, 4 Sess. India, S;c.\.Net}tcrlands Steam Navi- Cas. 4th Ser. 177, was not fol- gatimi Co., 10 Q. E. D. 521. lowod. (A) In St. Lucia, the limit of [Ic) The I'ahrmo, 10 P, D. 21. liability is 18?. per ton. The Cana- [l) 52 & 53 Vict. c. 43. Sect. 3 of dian Act is 43 Vict. c. 29 : sec this Act directs certain deductions Georyian Bay Transportation Co, v. in measuring for the purpose of Fisher, 5 Tupper's Rep., Ontario, ascertaining register tonnage. In 383. The UmhUo, (1891) P. 1 18, the owner (i) 39 & 40 Vict. c. 80, s. 23, of a steamship was not allowed to does not seem to apply to liability make these deductions in limiting for collision. his liability. {j) The Franconia, 3 P. D. 1G4, TONNAGE MEASUREMENT. 171 Acts, her Majesty is enabled by 52 & 53 Yict. c. 43, to revoke any Order in Council relating to the country of such ship ; and the ship will be re-measured under the Merchant Shi^jping Acts. AVhere the ship's tonnage, as shown by her register, had been altered after the collision, and after action for limi- tation of liability brought, but before judgment in the damage action, it was held that the tonnage to determine the amount of the owner's liabiHty was that shown by the register at the date of the collision (m). The ship's register is not conclusive as to tonnage. If the tonnage is in fact different from that shown by the register, the liability of the owner is measured by the actual and not the register tonnage (;/)• In the case of a steamship the tonnage, for the pui'pose of calculating liability, is the gross tonnage, without deduction of engine-room, master's accommodation, or navigation spaces (o). The shipowners who are entitled to the benefit of Beneficial limited liability are beneficial owners as well as registered titled to limit owners Qj). It would probably bo held that charterers liability. and other persons having a temporary o-R-nership of the vessel are not entitled to the benefit of the Act, but the point has not arisen in any reported case. The liability of the owner is not limited where he is the "Without actual wrong-doer (q) ; the Act applies only where the col- o-vraers') lisicn occurs without the "actual fault or privity" of the actualfau.t ^ ^ or pnvitv. owner. The meaning of these words was discussed in T/ie or pn\ (w) The John M'Lityrc, 6 T. D. 200 ; and see The JJioiic, 5 Asp. M. L. C. 347. {«) The Rccrpfa, 14 P. D. 131 ; The Franconia, infra. (o) 25 & 26 Vict c. 63, s. 54 ; 52 & 53 Vict. c. 43, 8. 3; The UmbUo, supra. As to deduction of crew spaces, see p. 170. supra. {p) The Spirit of the Ocean, Br. & L. 336. In Hughes v. Suther- land, 7 Q. B. D. 160, a person ■who had contracted to buy a ship was held to be owner ASTthin sect. 147 of 17 & 18 Vict. c. 104. {q) See 17 & 18 Vict. c. 104, s. 516. This section seems to apply to 25 & 26 Vict. c. 63, s. 54 ; see s. 1 of the same Act. In sect. 516 the ' ' master ' ' is mentioned ; in sect. 54 " owners'' only. 172 LIMITATION OF LIABILITY. Master part- owner. Co-owners : one actually in fault. Wliat British ships are en- titled to the benefit of the Act. Warhcorth (r), the facts of whicli case are stated below (s). The effect of tlie words is to protect the shipowner, not only against the legal consequences of negligence in his servants or agents, hut also from any imperfections in the sliip which cause collision. An owner navigating his ship with his own hand, or, it seems, under his own orders as master, would not he entitled to the benefit of the Act. If it is intended to make a master who is also part-owner liable beyond the statutory limit, as for a collision caused by his actual fault or privity, he must be sued as master in the first instance {t). It is not clear what constitutes fault or privity depriving an owner of the benefit of the statute. Where the master, who was also part-owner, was on board, but not on deck," at the time of the collision, and the ship was properly in charge of the mate and pilot, it was held that there was no fault or privity on the part of the master {n) . The fact of the master of the wrong-doing ship being a part-owner and personally in fault for the collision will not deprive his co-owners of the benefit of the statute {v) ; but he is himself liable for full damages {ic). Where the master is a part-owner, it is not necessary for the co- owners, in order to obtain judgment limiting their liability, to prove that the master was not privy to the collision. They are entitled to the usual declaration limiting their liability, with a reservation of the injured person's rights against the master {x) . Under 17 & IS Yict. c. 104, and the previous Act, 53 Geo. III. c. 159, sea-going ships only were entitled to the (,) 9 P. D. 145. (.s) Tago 175. (;;) The Volant, 1 W. Rob. 383. (m) The Oboj, L. R. 1 A. & E. 102. See Kidmn v. McArthur, 5 Sess. Cas. 4th Ser. 93G. {v) The Spirit of the Ocean, Br. & L. 336 ; The Obey, supra ; Kidsou v. 3[c Arthur, supra ; The F.mpnsa, 5 P. D. G ; Wilson v. Dickson, 2 B. & Aid. 2, was a similar decision under 17 & 18 Vict. c. 104. (w) 17 & 18 Vict. c. 104, s. 516. The Tritinc, 3 Hag-. Ad. 114, is a decision upon the similar exception in 53 Geo. 3, c. 159. (x) The Cricket, 6 Asp. M. L. C. 53. WHO AND WHAT SllirS ENTITLED. 17o benefit of limited liability. It seems that any foreign eliip Sliip must be and any Britisli ship (//), seagoing or otherwise, is entitled ^'^^^ ^ ' to the benefit of the Act now in force ; but if she is British, and the law requires her to be registered, she will not be entitled to tlie benefit of the Act unless she is registered. Craft under fifteen tons employed solely upon the coasts or in rivers of the United Kingdom or some British posses- sion within which the managing owners are resident, and certain fishing and coasting craft on the Nowfoimdland and neighbouring coasts, are not requii-ed to be regis- tered (~). Where an unregistered ship was negligently launched from a builder's slip on the Mersey and damaged a vessel afloat, it was lield that the liability of her owners (who were British) was not limited by the Act, and they were liable for the whole loss {a). But a ship bought by British subjects from Dutch owners, and not yet registered as British, was allowed to limit her liability as a foreign Bhij){b). Section 64, sub-sect. 2, does not apply to goods transhipped Goods tran- after and in consequence of a collision caused by the fault of e,ji|i^on^ the carrying ship, and subsequently lost by the negligence '""^ ^"^t. of those on board the ship to which they were transhipped. In such a case the Act affords no protection to the ship- owner. T//C Berniud, by her own fault, was in collision Avith The BusJnre. Without the assent or knowledge of the cargo-owner, and in order to carry the cargo to its destina- tion, the master of The Bernina transhipped his cargo from The Bernina, which had been injured in tlie collision, to IVte Brixham and Avehuri/. These two ships subsequently went ashore, and were lost with their cargoes by the neghgence (j/) As to the moaning of "ship" [a) The Andahisian, 3 P. D. 182. in tiic Merchant Shipping Acts, Cf. British Columbia Towimj and see p. 326, i>ifya. 'Transport Co. v. ScwcU, 9 Duval's (s) 17 & IS Vict. c. 104, ss. 19, Kep. (Canada), 527. 516; 26 & 26 Vict. c. 63, s. 1. Asto (A) The Briiiio, Ad. Div., Jan. sca-fishiui-- craft, 31 & 32 Vict. c.4o. 27th, 1891 : 90 L. T. 219. 174 LIMITATION OF LIABILITY. Liability limited iu contract as well as tort. Liability where two or more collisions. Owners not discharged by of those on board. After their loss, The Bernina owners instituted an action to limit their liability, and obtained the usual judgment. The cargo-owners made no claim in the limitation action, but instituted an action against TJie Bernina owners for loss of the cargo. It was held that they were not prevented fi"om recovering damages in this action by the judgment in the limitation action [h). The liability of shipowners is limited in respect of damages recoverable in an action upon the contract to carry as well as in respect of a mere tort. So carriers by sea, or partly by sea and partly by land, may limit their liability as against passengers or cargo-owners (c). The owners of every sea-going vessel {d) are liable for losses occurring upon separate occasions to the extent of their statutory liability in each case. Where a steamship struck a tug and also the ship to which the tug was passing her tow-line, it was held that the amount for which the steam- ship was liable was to be calculated as upon one collision and not upon two {e) . In a case w^here a steamship was towing another, and both ran into and damaged a thii^d ship owing to the neg- ligence of the towing ship, it was held that the towing ship was alone liable. The owners of the towing and the towed ship being the same, it was held that their liability was to the extent of 8/. per ton upon the tonnage of the towing ship (/). If the wrong-doing ship is sunk in the collision, or sub- [h) The Bernina, 12 P. D. 36. The bills of lading of The lirixham and The Avebury excepted negli- gence of the master and crow, while those of The Bernina did not. It was held this was immaterial. 3Ioreu-ood v. l'(jll(jk, 1 E. & B. 743, is a similar decision upon 26 Geo. 3, 0. 86, s. 2. (c) London ^ S. W. Bail. Co. v. James, L. E-. 8 (Jh. 241 ; The 2s'ormand>j, L. 11. 3 A. & E. 152. {d) 17 & 18 Vict. c. 104, s. 506. 2o & 20 Viot. c. 63, s. 54, applies to all foreign and registered British ships. {e) The Rajah, L. R. 3 A. & E, 539. Cf. The Benuna, 12 P. D. 36 ; The Douglas, 7 P. D. 151. In The Creadon, 5 Asp M. C. 585, Butt, J., stated the question to be whether the first collision caused the second. (/) Union Hieamship Co. v. Owners of the Aracan, The American, and The Spia, L. i;. 6 P. 0. 127. VARIOUS CASES : IMPROPER NAVIGATION. 175 sequently to it, the owners are not tliereby discharged from biukiug of liability (./). thoir«hip. The amount recoverable in Board of Trade proceedings Amount under 17 & IS Vict. c. 104, ss. 507— ol3, in respect of loss fTw/life of life or personal injury is limited to 30/. for each person in proceedings 1 . 1 -n w;\ ^ by the Board hurt or killed (A). of Trade. Lord Campbell's Act (/), enabling the representatives of Combined effect of 25 & 26 Vict. c. 63, H. 54, and Lord Camp- bell's Act. persons killed by negligence to recover damages, is not repealed or affected by the Merchant Shipping Acts, ex- cept so far as those Acts limit the extent (/.•) of the ship- owner's liability. It will be observed that the shipowner's liability in respect of injiuy to persons or goods on board another ship, or to another ship, is limited only where such injury is caused by "the improper navigation" of his own ship; and that his liability as carrier is limited whether the loss arises from improper navigation, or from some other cause. There has been some doubt as to the meaning of the words *' improper navigation." In T/ie Warktcorth the effect of the Act was stated by Brett, M.E,., to be that the owner's liability is limited for " all damage wrongfully done by a ship to another whilst it is being navigated, where the wrongful action of the ship by which damage is done is due to the negligence of any person for whom the owner is reponsiblo" (/). In that case the collision was caused by the ship's ' ' Improper navi"-ation.' {g) The Normandii, L. E. 3 A. & E. 152 ; BroK-n v. Jf'il/cinsoii, 15 M. & W. 391. In America, it seems that if the wrontr-doiuy vessel is sunk, the owners are discharged ; 2 Par- sons on Shipping (ed. 1869), 120 — 140 ; 9 U. S. Stat, at Large, 635 ; Norwich Steamboat Co. v. ]f 'right, 13 Wall. 104. (A) This enactment is not acted upon in practice. See p. 123, supra. (0 9 i: 10 Vict. c. 93 ; 27 in 28 Vict. c. 95. (/.•) Gladhohn v. Barlcr, L. E. 1 Ch. 223 ; ibid. 2 Eq. 598. (/) rer Brett, M. R., The Wark- u-orth, 9 P. D. 145, 147. As to the meaning of ' ' improper navigation ' ' in an insurance case, sec Canada Sliipping Co. V. British IShipowners Mutual Protecting Association, 22 Q B. D. 727 ; 23 Q. B. D. 342 ; Good V. London Steamship Oivnerii' Mutual Protectinff Association, L. R. 6 C. P. 563 ; Carmichael v. Liverpool Sailing Shipowners' Mutual Indcmnitg Asso- ciation, 19 Q. B. D. 242. 176 LIMITATION OF LIABILITY. steam steering-gear failing to act at the critical moment. The gear failed to work owing to a certain pin not being in its place. The pin had worked or fallen ont of its socket owing to its not being, as it should have been, a " split " pin. It did not appear by whom the improper pin had been inserted. It was held by the Court of Appeal, affirming the decision of Butt, J., that the collision and loss v/as caused by improper navigation, without actual fault or privity of the owners, and that their liability was limited by the Act. In the Cornet of Appeal {))i) it was held that, the statute being necessary only where there has been negligence for which the owner must be responsible, it must be assumed that the damage done by The Warhcorth was caused by negligence in fitting the steering-gear, for which negligence the owner was re- sponsible. " Improper navigation means improper naviga- tion by the owner of the ship. Now in the eye of the law the owner does improperly navigate his ship, if, owing to the negligence of some one for whom he is responsible, his ship does damage to another. It is impossible for us to treat ' improper ' as equivalent to ' unskilful ' ; on the contrary, it means ' wrongful.' A person who uses his ship, which is not in a condition to be so employed, does in reality improperly navigate her " (»). An injury done to a vessel in tow by her tug during the performance of the towage contract was held to be caused by " improper navigation " within the meaning of the Act, and the tug-owner's liability was limited (o) . It seems that a collision between a ship being launched and another afloat, caused by the fault of those in charge of the launch starting her at a wrong time, is injury by improper navigation within the meaning of the Act [p). (m) 9 P. D. 145. note ; 45 L. J. C. P. 783. Alite?- (m) Fer'Bo-wen,'L. J., The TFarIc- inCana^d'o,: Jiritish Columbia Toivuffe ivortli, 9 P. D. 14G, 148. and 'Transport Co. v. Seivell,9 DuYaV a (o) WcMberij v. Young, 24 W. R. Rep. 527. 847 ; 4 Asp. Mur. Law Oas. 27, {p) See The Andalusian, 3 P. D. INTEREST ; SHIPOWNERS ONLY PROTECTED. 177 The shipowner is liable beyond the sum to which his Shipowner liability is limited by the statute for interest on the amount thr^Ktatutory of his statutory liability from the date of the collision (7). |jjj'^j^^^^''^jj,j In the case of limited liability this is the rule, whether the costs, ship was earning freight at tlie time of collision or not (r), and whether there are several claims or only one (s). And lie is liable beyond the statutory amount for the costs of tlie action (t). The owner of a ship sunk by collision who, admitting Wrong-doer that the collision was caused by the fault of his own ship, J,n,°8 fJllJft obtains judgment for limitation of his liability, and pays Jjf i"^'^^,;"''°' into Com-t the statutory amount of his liability, does not limiting liis thereby escape from the legal consequences of his wi^ong- ^ ^^• ful act in causing the collision, except so far as the Act expressly relieves him. The owner of a ship sunk in the Thames paid into Court the statutory amount of his lia- bility. His ship was raised by the Thames Conservators (who have statutory powers to raise wi-ecks and reimburse themselves for the expense of raising them by sale of ship and cargo), he undertaking to pay the cost of raising. It was held that the shipowner was boimd to hand over cargo on board to its owner, and that the cai-go-owner w^as not liable to pay him anything by way of salvage or general average contribution {i(). 182, -where, however, the point, the same effect, though raised in argument, was ()•) The Northumbria, L. R. 3 A. not mentioned in the judgment. & E. 6. As to the justice of the See also per Brett, M. R., The practice compared with that at ll'arkworth, 9 P. D. 145, 147, as to common law, see per Lord Esher, the effect of negligence on shore M. R., 13 P. D. 118. causing improper navigation on the («) Smith v. Kirhij, 1 Q. B. D. ^ater. 131- I* "^^^ ^^^'^ stated that the (q) Straker v. Hartland (1864), 2 report of tins case is incorrect; that H. & N. 570 ; The Amaha, 5 N. R. it was not a case of collision, but of 1G4, note; 34 L. J. Ad. 21; The a ship capsizmg through improper Citii of Buenos Ai/res (1 S71), 1 Asp. stowage. Mar. Law Cas. 169 ; African Steam- {t) The Dundee, 2 Hag. Ad. 13/ ; ship Co. V. Swanzi/, 2 K. & J. GGO ; Kv parte Raijne, 1 Q. B. 982, are General Iron Screw Collier Co. v. decisions to this effect under former Schurmanns, 1 J. & H. 180 ; Xi.roH Acts. A Uko nde prevails in V. Jioberts, 1 J. & H. 739 ; are America ; The ll'anuta, 5 Otto, 600 decisions imdcr the Act of 1854 to («) The latrich, 6 P. D. 12" M. : t N 178 LIMITATION OF LIABILITY. Act applies only to injury to or on board craft. Liability of shipowner carrying in another man's ship is unlimited ; except "where the carrier is a railway company. Other cases of unlimited liability. Liability for damage to a light- ship. Liability of cargo to arrest not affected by the Act. Liability of Trinity House pilot. The Act applies only where the iujurj is to a ship or boat (x), or to persons or goods on board a ship. The liability for damage to a pier, wharf, or other object ashore, and for damage to property afloat, other than that men- tioned in the Act, is unlimited (y). The liability of a jierson who contracts to carry persons, animals, or goods by sea, and carries them in a ship not owned by himself, is not limited by the statute. But the liability of a railway company in such a case is limited as regards animals and goods (~) ; and also, it would seem, as regards loss of life or personal injury to joassengers ; but the words of the Act are somewhat obscure as regards passengers (a). The liability of owners navigating their own ships, of pilots, harbour and dock masters acting in charge of ships, of partners in a shipping adventure who work but do not own the ship (6), seems to be untouched by the Act, and to be unlimited. Whether charterers and others in the position of ^jyo hdc vice owners are within the benefit of the Act seems doubtful {c). As against the Crown there are no words limiting the liability of the subject [d). If a vessel wilfully or negligently injures a light-ship, in addition to her liability for damages, she incurs a penalty of 50/. {e). Notwithstanding the words of the Act, the liability for damages is probably limited to the statutory amount in this, as in other, cases. The liability of cargo to be arrested in order to compel payment of freight is not affected by the Act (/). The liability of a London Trinity House pilot in respect {x) The word "boat" does not occur in paragraphs (1) and (2) of sect. 54. [y) See River Wear Commissioners y. Adamson, 1 Q. B. D. 546 ; 2 App. Cas. 743. {z) 34 & 35 Vict. c. 78, s. 12. (a) Seejo«'LordBlackbum,Z)&o?a» V, Midland Bail. Co., 2 App. Cas. 792, 809. {b) As in Steel v. Lester, 3 C. P. D. 121. (c) The question has never, so far as the writer is aware, arisen. {d) See The Zoe, 11 P. D. 72. {e) 17 & 18 Vict. c. 104, s. 414. (/) The Orpheus, L. R. 3 A. & E. 308. LIMITATION' OK LIAini-ITY. 170 of neglect and want of skill is limited to 100/., the amount of the bond required to be executed by liini ui)on his appointment, together with the amount of his pilotage iee{g). Tlie liability for damage caused by a ship o^NTied by a Liability for limited liability company incorporated under the Com- ship owned panics Act, 18G2, is of course ultimately measured by the ^y f^mgl'- ship , -ryj., . company. value of the assets of the company. AVhere, as is some- times the case, the whole assets of tlie company consist of the ship that does the damage, and she is sunk in the collision, the injiu'ed party is without redress. The effect of the statute limiting owners' liability wlicn Combined it operates in conjunction with the rule as to division of Act liillitino- loss is fully discussed in a previous chapter (/*). It may liability and here be stated shortly that, where both ships are in fault, division of and the damage to ship A. and to cargo on board her is °^^' greater than that to ship B., and B. limits her liability pursuant to the statute, the damages recoverable by A. will be so much of the sum representing B.'s statutory liability as bears to the entire sum the ratio which the difference between the losses on the two ships bears to the aggregate losses of owners of cargo on board A. and other persons entitled to claim against B. ; and, further, that B. can recover nothing (/). It is provided (25 & 2G Yict. c. 63, s. 55) that insur- Insurances ances effected against any of the events mentioned in ^^'^ere lia?^ sect. 54, and occurring without actual fault or privity of l;ility is the owners, shall not be invalid by reason of the natui-e valid. of the risk. The effect of this clause is not clear ; tliere seems no doubt that such insurances would be valid apart from the Act (A*). {(/) 17 & IS Vict. c. 104, 8. 373. (/•) There seems to have been an (ft) Supra, p. 138. idea that such insurances might be (i) Stoomvaurts Maatschappy Xe- invalid for want of interest in the derland.i v. rcnitisidar and Oriental insurer : Hansard's Pari Deb. vol. Steamship Xavujation Co., 7 App. 106, p. 2227. Cas. 795. n2 180 LIMITATION OF LIABILITY. Priorities of claimants in respect of loss of life and loss of Koods. Proof by the Crown. Liability where some claims settled. Right of bottomry bond-holder on froiprht, where wrong- doer limits his liability. As to the practice in actions for limitation of liability, see below, p. 328. AVhere the amount of the fund in Court is insufficient to satisfy in full claims in respect of loss of life and loss of cargo, the former are entitled to the whole of that part of the fund which represents the 7/. per ton ; and they are entitled to prove against the residue of the fund pari passu with the cargo claimants. The latter have no priority of proof against the part of the fund which represents the 8/. per ton (/). The Crown may prove against the fund in Court both by the general law and by 31 & 32 Vict. c. 78, s. 3 (Admiralty Suits Act, 1868) {)„). In a recent English case, where there were claims in respect of loss of life as well as loss of property, but all the life claims had been settled out of Com-t, the shipowner was allowed to limit his liability upon payment into Court of 8/. per ton only {n). In Scotland it has been held that where the shipowner has settled out of Court some of the claims in respect of a collision for which his ship was in fault, he is entitled, upon a petition for limitation of his liability, to take into account the sums previously paid in respect of such claims ; and that the other claimants are not entitled to any more than they would have recovered if none of the claims had been settled (o). Wliere a shij) negligently damages another, and the owners of the latter obtain a judgment luniting their liability under the statute, the holder of a bottomry bond on freight earned by the injured vessel is entitled to share rateably in the amount to which the liability of the wrong- doer is limited {p). (l) The Victoria (No. 2), 13 P. D. 125. See l^'ixon v. Rohvrta, 1 J. & H. 739 ; I.vijccHtcr v. Loyan, 2G L. J. Ch. 306," decided upon 17 & 18 Vict. c. 104, s. ol4 ; Burrell v. Simpson, 4 Sess. Ca. 4th ser. 177. (w) TheZoc, 11 P. D. 72. in) The Foscolino, 5 Asp. M. L. C. 420. (o) licmkins v. Maschen, 4 Sess. Cas. 4th ser. 725. {!)) The Empxisa, 5 P. D. 6. LIMITATION OF LIABILITY. 181 Note. Policij of the Law limitiiHj Slnpouiio'H' Liahilifij ; and Foreign Law i(po)t the Subject. There has of late years been consideraLlc difference of opinion as to the policy of the law which limits shipowners' liability. The Acts which give effect to that pulicy have been spoken of as abridging the natm-al {q) or common law (r) rights of persons injiu-ed by collision, as tyrannical (s), and derogating to the extent of injustice from the legal rights of parties (^). On tlie other hand, the Acts in cj^uestion have been described as valuable (?<) and necessary for the encour- agement of commerce {x). The first view assumes the justice of the law which makes a shipowner, wholly blameless himself, liable for the negli- gence of his officers and crew. The natural justice of such a law is not immediately apparent ; but the experience of mankind, and the prevalence amongst civilized nations of the principle of law represented by the maxim respondeat superior, point to its practical efficiency as a check upon negligence. The expediency of so framing the law as to provide the greatest possible security against the carelessness and recklessness of persons to whom is entrusted by others the conduct of a business so likely to do mischief as the navigation of sliips is manifest (y). But even as matter of expediency it has been questioned whether shipowners or other principals should be liable at all for the negligence of those whom they em- ploy ; and it has been said by a distinguished judge that the principle should at any rate not be extended (~). Ilowever this may be, it would seem that the law respondeat superior, if expedient in any case, is eminently so as regards the iq) Per Sir R. Phillimore, The (*) P.r Brett, L. J., 6 P. D. 136. Korthumbria, L. R. 3 A. & E. 6. (0 i'<)- Brett, L. J., 4 V. D. 184. (>•) Fer Abbott, C. J., Gale v. («) Fer Butt, J., The Warkicorth, Laurie, 5 B. & C. loG, 1G3. See 9 P. D. 20. also per Lord Palinerston in tlie (.r) See aupra, p. 163. debate iu the House of Coiiiinons (y) See per Lord Bramwell, 7 upon 2.5 & 26 Vict. c. 63, s. 54 : App. Cas. 826, u. : ;w^/- James, L. J., Hansard's Pari. Debates, vol. 166, The M. Moxhani, 1 P.D. 110. p. 2225. {z) Fer Jesscl, M. E., 9 Q. B. D. 351. 182 LIMITATION OF LIABILITY. The law as to limitation of liability in America. navigation of ships. The lives of all those who navigate the seas, and the safety of the commerce of the world, depends largely upon the attention and carefulness of those whom shipowners place in charge of their ships. Eisk of collision has of late years very greatly increased, and will continue to increase. The growth in the number and size of ships, the superseding of sailing ships by steamships, and the rapid speed at which steamships are now run, are circumstances which cannot fail to increase the losses arising from collision. It has been calculated that, other conditions remaining the same, the risk of collision increases with the number of ships in the ratio of ten to one. Statistics show that the per- centage of steamships in collision is five times as large as that of sailing ships ; and whilst steamships are increasing in number and tonnage the number of sailing ships is stationary, if not decreasing. All these facts seem to point to the ex- pediency of applying to shipowners the same law which in other matters has been found necessary for public safety. So far as the existing law, which limits their liability for the negligent acts of their servants, departs from the wholesome principle respondeat superior, it affords a direct encouragement to negligent and reckless navigation. These considerations do not appear to have weighed with the Legislature, either when the original Act of Geo. III., or when the subsequent Merchant Shipping Acts were passed for the relief of shipowners. The history of those Acts shows that they originated in a policy of protection, of which the necessity or expediency at the present day may well be doubted. It may, however, be thought that it is necessary to main- tain the principle of limited liability for the relief of British shipowners so long as that rule is enforced by laws of other maritime nations. It appears that shipowners' liability is limited by the municipal laws of most, if not aU, foreign countries. The state of foreign law upon the subject is as follows : — In the United States of America owners are not liable in the Federal Courts for loss or damage beyond the amount of their interest in the ship and freight at the time of the collision. ITS POLICY : FOREIGN LAW, 183 But tliore is no limitation of liability for damage by a vessel •^vholly engaged in inland navigation : The War Eayle, 6 Bissel, 364. If the wrong-doiug ship is herself sunk, it seems that the owners are altogether discharged : 2 Parsons on Shipping (od. 18G9) 120, seq. ; 9 U. S. Stat, at Large, 035 ; Norwich Steamboat Co. v. Wricjht, 13 AVall. 101 (in this country the loss of their own ship never discharged the owners: Brown v. lVilkmso?i, 15 M. & W. 391); and the limit of liability is the value of the ship after collision : Norivich and Neio York Transportation Co., 17 Blatchf. 221. But certain formalities must be gone through, and the ship must be surrendered, or the owners will not be entitled to the benefit of the Act of Congress limiting their liability : see The Jos. W. Dyer v. National Steamship Co., 14 Blatchf. 483. lu some of the State Courts it has been doubted whether the owner's liability is limited ; but it appears that where one of the ships is foreign the Federal Courts, and not the State Courts, have jurisdiction, and that the foreign ship has the benefit of the Act of Congress; see a letter from Mr. Thornton to Lord Tenterden, of 25th Nov., 1872. Upon the Continent of Europe the rule that abandonment Continental of the ship discharges the owners is almost, if not quite, ^^^' universal. Art. 21G of the French Code de Commerce is as follows : — " Tout propriotairo do navire est civilement responsablo des France, faits du capitaine, et tenu des engagements contractus par ce dernier pour ce qui est relatif au navire et a I'expedition. II peut dans tons les cas s'affranchir des obligations ci-dessus par I'abandon du navire et du fret. Toutefois la faculte de faire abandon n'est point accordee a celui qui est en memo temps capitaine et proprietaire ou co-proprietaire du navire. Lorsque le capitaine ne sera que co-proprietaire, il ne sera responsable des engagements contractt's par lui, pour ce qui est relatif au navire et u I'expedition, que dans la proportion de son interet." As to the history of this article, see Lloyd \. Guibcrt, L. E. 1 Q. B. 115 ; C B. «& S. 100 ; and per Dr. Lushington, The J/flry ^nn, L. E. 1 A. & E. 8, 11. 184 LIMITATION OF LIABILITY. Germany, Holland, Belg'ium, Hu.ssia, Portugal, Spain, Italy, Egypt. The law by wliicli the shipowner's liahility is limited to the value of the ship and freight has no application in the case of a collision between craft engaged in inland navigation. A distinction is drawn between collisions " maritimes " and " non-maritimes." In the one case the owner's liability is limited, in the other not : — " comme dans I'un, c'est la chose, autrement dit le navire qui ropond plutot le dommage, et dans r autre, la personne ; " Jurisprudence et Doctrine en Matiere d'Abordage, par M. Sibille, pp. 7, 8. Arts. 451, 452 of the German Commercial Code ; Art. 321 of that of Holland; Art. 7 of the Belgian Code; Art. 491 of the Italian ; Art. 649 of the Eussian (a) ; Art. 587 of the Spanish Code ; and Art. 30 of the Egyptian Code de Com- merce Maritime, are similar in effect to the article of the French Code cited above. The corresponding Article (492) of the new Portuguese Code seems only to limit the owner's liability in respect of obligations arising out of contract : a doubt might be suggested as to whether this is not the effect of the Italian provision also {b). (rt) The writer has been imable to examine the latest Russian code ; but it is believed to be to the same effect as that referred to in the text. (h) As to some recent foreign codes, see p. 160, note {a), supra. ( 185 ) ClIAPTEK VIII. TUG AND TOW. AViiERE one ship is in tow of another, the two ships are, For some for some purposes, by intendment of law, regarded as one, anc?t?w arT the command or governing power being with the tow, and treated as one the motive power with the tug [a). Thus, for the pm^poses of the Eegulations for prevent- Forthepiir- . i J T 1 • pOSGS 01 XllC mg collision, the tug and her tow are treated as one snip, Eegulations. and that a steam or sailing ship according as the towing ship is under steam or not {b). But it is obvious that a tug with a ship in tow has not the same facility of move- ment as if she were unincumbered. She is not, in any- thing like the same degree, mistress of her own movements. She cannot, by stopping or reversing her engines, at once stop or back the ship in tow. In taking measiu-es to avoid a third vessel she has to consider her tow ; and a step that would be right, and take her clear, if she were unincum- bered, may bring about a collision between her tow and the ship which she herseK has avoided (c). Although, therefore, it is the duty of a tug with a ship in tow to comply, so far as is possible, with the Eegulations for preventing collisions, it is also the duty of a thii'd ship («) The Cleadon, 14 Moo. P. C. C. 97 ; T/)c American and The Syria, L. R. 6 P. C. 127, 132. (*) The Warrior, L. R. 3 A. & t). 553 ; The American and The Syria, nbi supra. The same has been held in America : New York, di'C. Co. V. Thiladelphia, ^c. Co., 22 How. 461 ; The Ivanhoe v. The Martha M. Heath, 7 Bened. 213; The Cirilta and The Sestlcss, 6 Bened. 309; 13 Otto, 699; The Farewell, 8 Quebec L. R. 87. There has been no decision as to a sailing ship towing another, but there can be little doubt that tlie law is as stated in the text. (f) See The Arthur Gordon and The Independence, Lush. 270 ; The Kingston-b)j-thc-Sea, o AV. Rob, lo2. 186 TUG AND TOW. Whether tug and tow are one ship, so that OTie is atfected by the fault of the other. The tug is the servant of the tow ; meaning of the expres- sion. Tow liable in Admiralty for the fault of her tug. to make allowance for the incumbered and comparatively disabled state of a tug, and to take additional care in approaching her (d). The principle that the tug and her tow are in law re- garded as one ship has been applied in Admiralty so as to make one of them liable for a collision with a third ship caused by the fault of the other. Unless the actual wrong- doer in these cases is the servant or agent of the owner of the ship sued, the condemnation in Admiralty of the ship sued appears to conflict with the principle laid down in some of the cases (e), that the responsibility of the owner at law and the liability of the ship in Admiralty are always concmTcnt. We propose, therefore, to consider in some detail the respective liabilities at law of the owners of the tug and of the owners of the tow, and in Admiralty of the tug and of the tow, where there is a collision between the tug and a third ship, or between the tow and a third ship. It is a term of the ordinary towage contract that, as regards the conduct and navigation of the two ships, the tug and those on board her shall obey the orders of those on board the tow (/). This relationship between the two ships is expressed by the saying, to be met with in some of the cases, " that the tug is the servant or in the service of the tow " (//). This expression has led to the tow being held in Admiralty responsible for the fault of those on board the tug ; at least, where such fault leads to a collision between the tow and a third ship. In The Ticonclcrofja {h), a vessel in tow of a steamship, which by the terms of her charter-party she was bound to {d) The American and T/ie Syria L. R. 6 P. C. 127 ; The La Tlata, Swab. 220, 298. (<•) A princijDle which has not always been adhered to : supra, p. 93. (/) Sec ii'fra, p. 107. (ff) See per Sir R. Phillimore in The Mary, 5 P. D. 14, 16; The Sinquasi, 5 P. D. 244 ; per Sir E,. Collier in The American and The Syria, L. R. 6 P. C. 127, 132. {h) Swab. 215. THEIR RESPECTIVE LIABILITIES. employ, struck and injured a thii'd ship. The collision was caused by the fault of those on board the steamship. It was held by Dr. Lushington that the tow was liable in Admiralty. " In cases of one vessel coming into collision with anotlier, and the vessel proceeded against having been in charge of a steamer, there can be no doubt whatever that the vessel which has the steamer in her employ is responsible both for her own acts and those of the steamer" (/). A barque in tow of a tug was approaching the entrance of the Eegent's Canal Basin. The tug, without orders from the barque (which was in charge of a compulsory pilot), improperly altered her course, and thereby caused the barque to strike and injure the pier head. It was held by Sir E. Phillimore that the barque and her owners were liable : " The tug was the servant of The Siiiquasi (the barque), and T/ie Sinqnasi is responsible for what the tug did" (/.•). It seems to have been held, also, that imder the special circumstances of the case it was the duty of the tug to alter her course without waiting for orders from the tow. In The Bianca {/) it seems to have been assumed that the ship proceeded against, the tow, was responsible for the fault of those on board the tug. And in The American and The Syria Su^ R. Collier stated the law to be that " the tug is in the service of the tow ; the tow is answer- able for the negligence of her servant, and is for some purposes identified with her" {m). It seems clear, therefore, that in Admiralty the tow is liable for a collision between herself and a thu-d ship by the fault of those on board the tug ; and f lu'ther, that her liability is independent of the question whether those on board the tug are the servants of tlie owners of the tow, in the sense that the latter would be liable at law for the (i) Aliter in Canada, Tlie William, {I) 8 P. D. 91. 4 Quebec L. R. 306. (w) L. R. 6 P. C. 127, 132, {k) The Sinquasi, b P. D. 241. 187 188 TUG AND TOW. nogligence of the former. There seems reason to think that the habit of personifying the ship, which, as pointed out above, has produced confusion in other cases, has led to the condemnation in Admiralty of a ship in tow for the fault of those on board her tug, without sufficient considera- tion of the question whether the wrong-doer is a person for whose acts the owner of the ship sued is liable at law. The ratio decidendi in The Ticonderoga, The Sinquasi, and other cases above cited, seems to have been as follows : the collision was caused by the fault of the tug ; the tug is the servant of the tow; therefore the tow is liable for the collision (;;). The soundness of this reasoning appears to depend upon the assumption that the ship with which the wrong-doer does the wrong, or on board which he happens to be when the wrong is done, is in Admiralty herself a wrong-doer — a proposition Avhich, at the present day, there would be difficulty in establishing. Whether tow Whether the doctrine that the tug is the servant of the liable for ^ ^g ^^ make the latter liable for the negligence of the colusion ' 1 1 /IT i \ between tug former, would be carried so far as to make her (the tow) by^fault*lf^^ liable in Admiralty for a collision between the tug and a tug. third ship, has not been decided. It has been held that a ship may be sued and condemned in Admiralty for negli- gence on her part which causes a collision between two others (o) ; but it seems doubtful whether a tow, free from fault as regards those on board her, could be condemned for a collision between her tug and a third ship caused by the fault of those on board the tug, who were not in the employment of the owners of the tow. Collision In the cases above considered the collision was between betvveen tug ^^ ^ ^ ^ thu'd ship, and the action was against the and third ship '' ^ ^ ° by fault of tow. In the following case the collision was between the "^' tug and a third ship. (h) See also ))cr Sir R. Cullier in 4 P. D. 204 ; ««;;)•«, p. 57. The American imdi The Syria, L. R. [o) See The Sisters, 1 P. D. 117, 6 P.O. 127, 132; The Mar;/ IlounscU, and cases cited supra, p. 27. LIABILITY OF TOW FOR FAULT OF TUG. 189 A tug was towing a ship in charge of a compulsory pilot. Tlie tug struck and injm-ed a third ship. It was held tliat, assuming the collision was caused entirely by the fault of the pilot of the tow in wrongly directing the tug's course, still the tug was liable for the injury to the third ship (p). It was further held, the pilot being com- pulsorily in charge of the tow, that the exemption from liability which usually accompanies compulsory pilotage did not protect the tug. It remains to mention the case of The American and T/ic The American Syria {q), which was not a case of ordinary towage, and in ^^ '^' ''^"^' which different principles were applicable. Tlie Sijria and The American belonged to the same owners. The Syria was disabled in a foreign port. The master of The American took her in tow in order to bring her to England. On the passage home, by the fault of those on board The American, a collision occurred between The American and a third ship. The Araran. The Syria also struck and injured The Aracan. It was held that The American was liable for the whole of the damage, and that The Syria was not liable at all. The American was not employed by the master of The Syria, but took her in tow partly for the benefit of the common owners, and partly to obtain salvage from the owners of cargo on board The Syria. It was held that, the case not being one of ordinary towage. The Syria was not liable for the fault of The American. But it seems to have been assumed by the Coiu't that, if the case had been one of ordinary towage, The Syria would have been liable. It had been held by Sir 11. Phillimoro in the Court below that IVie American and The Syria were in law one ship, and that therefore The Syria was liable in Admiralty for the fault of The American. This decision was reversed by the Privy Council upon the groimd above stated, that (p) The Ma)y, o P. D. 14. It the tuj; being herself iu fault, should bo stated that the decisiou {>/) L. R. 4 A. & E. 226 ; ou ajm. upon this point was unnecessary, iL 6 P. C. 127. 190 TUG AND TOW. tlie general rule did not appl}', because in the present case tlie governing power was with, the towing ship and not with the tow. The principle involved in the last-mentioned decision was applied in the recent case of The QuicMcp (r), where a Divisional Coiu't of the Admiralty Division held that a barge which was towed into collision by her tug was free from blame, on the ground that the governing power was solely in the tug, and it was said to be a question in each case whether the tug or the tow is responsible for the navigation. Liability at We propose now to consider the liability at law of the o^^rVafd of owners of the tug and of the tow respectively for a coUi- tow-owners. g^Q^ between the tug or the tow and a third ship. First, We^n tow where the collision is between the tow and a third ship by and third ship the fault of those on board the tow. In this case there by^fault of .^ ^^ difficulty : the tow-owners are liable for the damage caused by the negligence of their servants, the crew of the tow. And it seems equally clear that the tug-owners are not liable. They are in no sense masters or employers of the crew of the tow ; and the doctrine that tug and tow are in law one ship can have no application in such a case. Between tow Secondly, the case of a collision between the tow and a r'fauit'I)?'''^ third ship by the fault of those on board the tug. It is tug. possible that in this case the crew of the tug, though the general servants of the owners of the tug, might be held to be also the servants of the owners of the tow, so as to make the latter liable for their negligent acts in the course of the towage (.s) . There has been no decision upon the point, and there are considerable difficulties in holding the Ir) 15 P. D. 196. thought that the charterers as well Is) See Rourke v. White Moss Col- as the owners might be liable : liery Co., I C. P. I). 5o6 ; 2 C. P. Johnson v. Lindsaij, 23 Q. B. D. D. 205 ; Balyell v. Tyrer, E. B. & E. 508 ; Jones v. Corporation of Liver- 899, where it seems to have been jjool, 14 Q. B. D. 890, LIABILITY OK TOW FOR KAl'LT OF TUG. 191 tow-owners liable in such a case. The liability of the tug- owners seems clear. Thirdly, a collision between the tug or the tow and a Between tug third ship by the fault of those in charge of the tow in °hi,°i^}fip w wrongly directiug the coiu'se of the tug. Here the tug- f'l'ijt of tow owners would bo liable as emplo}'ors of the actual wrong- OTdcrs to tug. doer, the helmsman of the tug, and not the less so because their servant is bound by the towage contract to obey those on board the tow (t) . And it is conceived that the tow-owners would also bo liable ; for it was the wrong order given by their servant that caused the collision. If Where tow no order were given by those on board the tow, the owners fo Yu„.°° ^^ ^^ of the tug would be liable, since it is the duty of those on board the tug to keep both tug and tow clear of other ships without waiting for orders from the tow {ii). And it seems that the owners of the tow might also be liable in this case. Assuming that those on board the tug are not the servants or agents of the owners of the ship in tow, it would perhaps be held that the omission to direct the tug to keep clear of the third ship is negligence making the owner of the tow liable for the damage to the third ship (r) . A strong opinion to this effect was expressed by Su* J. Hannen in T/tc Niohc (//). The shij) Niobe was being towed from Greenock to Cardiff by the tug Flying Serpent. It was a sea towage, and the scope of tow rope was 100 fathoms. The steamship Valetta, on a N.E. by E. course, sighted the lights of The Fh/ing Serpent tlu-ee miles off on her port bow. T/ie Valetta kept her course. IVie Fhjuuj Serpent, on S.S.W. course, struck The Valetta on her port bow with her stem and starboard bow. There was a bad look-out on T/ie Niohe, and in consequence her helm was not ported until it was too late to avoid collision. The {t) See Feyiton v. Dublin Steam [x) See The Energy, L. E. 3 A. Packet Co., 8 A. & E. 835. & E. 48, infra, p. 202. (?«) The Siuquasi, 5 T. D. 2-11. (y) 13 P. D. 55. 192 TUG AND TOW. Court was advised by the assessors, and held, that it was the duty of The Nioho to have ported before she did, and that by so doing she would either have girted the tug, and so forcibly altered her course, or would have attracted the tug's attention, warned her of the danger, and caused her to alter her helm. The fault of the tug was not contested, her owners admitting liability. Under these circumstances it was not necessary to decide the question of law as to the liability of the tow-owner for the negligence of those on board the tug ; but Sir J. Hannen expressed the opinion that where the collision would not have occurred if those on board the tow had not been negligent in directing the course of the tug, the tow-owners would be liable for a colli- sion between the tug and a third ship ; and f mother, that their liability arises not from the existence of any relationship of master and servant between them and the crew of the tug, but because of the control which the towage contract gives them over those on board the tug. The case of Quannan v. Burnett [z), said Sir J. Hannen, was not an authority against the liability of the tow-owners in such a case, tlieii' liability being similar to that of the passenger in a jobbed carriage, who takes upon himself to dii'ect the driver. Between tug In a collision between the tug and a third ship, caused by fault of ^^ partly by the fault of those on board the tug, and partly tug and tow. \yy the fault of tliose on board the tow, the tow-owner is liable {a). Sudden move- In Tlie Niohe {siipra) it was proved that the collision causing ° would uot liavc happened if there had been a proper look- collision, out on board the tow, and that the tow could have con- trolled the movements of the tug. But if the movement of the tug is so sudden that those on board the tow could not have controlled it, the tow- owner (it was said by Sir J. Hannen in T/ie Niohe) would not be liable. In The Storm- (c) 6 M. & W, 499. («) The Nivbe, 13 P. D. 55. LIAJ51LITY OF TOW FOR FAUl.T OF TUG. 193 cock (b), where the tug on a safe course suddenly departed from it and tliereby oaused a collision Lctwoen the tow and a third sliip, it was held that the tug was liable to indem- nify the tow for damages paid by the latter for the collision. The dictum of Sir J. llannen as to the non-lialnlity of tow-owner for sudden manoeuvres of the tug is not easily reconciled with the doctrine that " the tug is the servant of the tow," or with the decision in 27ic Sinqua'ii (c). The doctrine that the tug is the servant of the tow is Liability inapplicable where not only the motive power, but also commaiid is the command, is with the tug. Thus where the towing "with the tug. ship is a salvor, and the command of both ships has been expressly or impliedly handed over to those in charge of her ; or where she has picked up a derelict, or is towing a fleet of dumb barges, it would seem that the towing ship and her owners are alone liable for damage done by herself or her tow ; and this was the effect of the decisions in TZ/c American and T/ic Syria, and in The Qtiichstep, mentioned above (r/) . AVliere a ship in tow is in charge of a compulsory pilot, Compulsory there is doubt whether the tug and her owners are free of tow. ^'"'°^ from liability for a collision between a third ship and the tug or her tow caused entirely by the fault of the pilot. The ship in tow and her owners are clearly free from liability in such a case(e). In a case decided under 6 Geo. IV. c. 125, Dr. Lushingtou said: — '"If a licensed pilot is on board (a vessel in tow), and his orders are obeyed, the owners are absolved from responsibility for damage occasioned by such vessel. But if the pilot was to be deprived of his authority, and the (tug) steamer was not bound to follow his directions, and a collision ensued, the (tug) steamer would be the agent of the owners of the vessel in tow, and the o■\^^lers of that vessel would no (i) 4 Asp. M. L. C. 410. {c) The Ocean Wave, L. E. 3 P. [e) 5 P. D. 241. C, 205. {(l) Supra, p. 100. M. 194 TUG AND TOW. longer be protected by the Act of rarliament"(/). These observations seem applicable at the present day as regards the liability of the ship in tow when a pilot is on board and in charge by compulsion of law. And there would seem to be difficulty in holding the owners of a tug to be liable for acts of her crew for which the compulsory pilot is responsible, and which are negligent only so far as they are in pursuance of his orders. In Tlte Mcu'u, however, it was considered by Sir R. Phillimore that in Admiralty the tug would be liable in such a case {g) ; but the point was not expressly decided, as the tug was in fact guilty of contributory negligence. It was held by Dr. Lushington in several cases that the tug is free from liability in such a case {h) ; and although these decisions were not under the existing Pilotage Act, the reasons upon which they were founded seem to be equally cogent at the present day as regards the non-liability of the tug-owners. Where there is contributory neghgence on the part of the tug- owner or the tow-owner, compulsory pilotage will, of course, be no defence (/). Can tow- The question whether the owner of a tow can by con- tract with tracting ^^dth the tug-owner that he shall have entire tug-owner control of the tow discharge himself from liability to a from liability third ship for a collision between the tow and the third parties'? ^^^^P ^^^ ^^^^ hQQn decided. Having regard to the deci- sions [k) as to the liability in Admiralty of chartered and other ships out of theii' owners' possession, it is possible that the tow may be held liable in Admiralty in such cases, though, as it seems, her owners are not liable at law. (/) The iJul-e of Sussex, 1 W. {i) As in The Belgic, 2 P. D. 57, Rob. 270, 273. where the tug had insufficient {(/) 5 P. D. 14. power. {h) The Duke of Sussex, 1 W. {I) The Lemington,Thc I)ruid,The Rob. 270, 273 ; The Chrisiitia, 3 Tasmania, supra, pp. 89 — 93. See W. Rob. 27; and see The Ocean further on this subject a pamphlet Wave, L. R. 3 P. C. 205; The entitled "Maritime Lien," by the Gipsey Kintj, 5 Not. of Cas. 282, Hon. J.Mansfield, London, Stevens 288, & Sons, 1889. AMERICAN LAW. 195 The practice of tiig-owuers, liowevcr, is not to enlarge, but to minimise their responsibilities, and thoy frequently pro- tect themselves by a special contract against the liabilities which the ordinary towage contract throws upon them. The terms of the towage contract in the case of Tlic Tas- mania are, it is believed, those upon which much towage is done ; and under such a contract the tug-owner stipu- lates that he shall not be liable for damage to the tow even by his own servant's negligence, and also for an indemnity against damage done by the tow. The responsibility for the employment of a tug, in Responsibility ordinary cases, rests with the master, whether the ship is in n^ent of tug. charge of a pilot or not. But if the employment of a tug is necessary for the safety of the sliip, it is at least doubt- ful whether the master would be justified in refusing to employ a tug upon the pilot's advising him to do so (/) . If a vessel in tow is under way when she ought not to be moving, as in a dense fog or in a crowded dock at night- time, the presence on board of a compulsory pilot would not exempt the owners from liability for damage done by her {m) . The decisions of the Coiu'ts of the United States of American law America as to the duties and liabilities of a tug and her tow. ° ' tow are very numerous. They are not altogether con- sistent with the English cases upon the subject. The different character of much of the towage service in American waters, where large fleets of barges are con- stantly being navigated in charge of a single tug, probably accounts for the somewhat different view of the law taken by the American Courts. The law as to the liability of tow and tug has been thus stated by the Supreme Coiu't : "• Cases arise, undoubtedly, where both the tow and tug are jointly liable for the consequences of a collision ; as (/) T/ie JuUa, Lush. 224. Cf. to employ tup:) ; The Arran, 9 The Aqamemnon, 1 Quebec L. R. Quebec L. R. 278 (cable parting). 333 (duty of ship at anchor di-ivuig {m) See The Borussia, Swab. 'Jl. o 2 19G TUG A^D TOW. American wliere tliose in charge of the respective vessels jointly par- '^^' ticipate in their control and management, and the master and crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navi- gation. Other cases may well he imagined where the tow alone would be responsible ; as wliere the tug is employed by the master or owners of the tow as the mere motive power to propel their vessel from one point to another, and both vessels are exclusively under the control and direction and management of the master and crew of the tow But whenever the tug under the charge of her own master and crew, and in the usual and ordinary com^se of such an employment, undertakes to transport another vessel which, for the time being, has neither her master or crew on board, from one point to another over waters where such accessory power is necessarily or usually employed, she must be held responsible for the proper navigation of both vessels Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow on the ground that the motive power employed by them was in an unseaworthy condition, the tow, under the circumstances supposed, is no more responsible for the collision than so much freight («)• And it is not perceived that it can make any difference in that behalf that a part or even the whole officers and crew of the tow are on board, provided it clearly appears that the tug was a sea- worthy vessel properly manned and equipped for the enterprise" (o). In accordance with the principles here laid down, in some cases both tug and tow (j)), in others the tug («) So in 2'he Alabama and Thr; (o) Slmycs v. Boyer, 24 How. Gamecock, 2 Otto, 695, it was said 110. liy the Supreme Court that a ship (;>) Tlie Coleman and The Foster, in tow boars the same relation to Brown, Adni. 456 ; The Mayhey audi the collision as cargo on board The Cooper, 14 Wall. 204. either of the ships. THE CONTRACT OF TOWAGE. lf)7 alone ((/), or tlic tow alone (/•), hfive in America been lielcl liable for damage done to other ships by tug or tow. Where both the tug and her tow have been sued and held liable in Admiralty, the decree has gone against each of them for half the damages, with power for tlie plaintiff to have recourse against either of them for the balance, in case of failure of the other to pay her full moiety of the damages (6'). The English Com't has recently refused to adopt this practice (ss) . It has been held in America that a tug with a fleet of barges or canal boats in tow, though she is not, like a common carrier, liable as insurer of the cargo on board her tow (/), is generally liable for damage to the craft in tow or the cargo on board them, and also for damage to third ships by the tow {(i). As stated above [v), it is an implied term in the ordinary The contract contract of towage that the tug shall implicitly obey the ?^^ t*ermf ^a'nd orders of the ship in tow (^). If no orders are given by performance. the latter, it is the duty of the tug to take such a course as will can-y herself and her tow clear of collision and other dangers (//) ; but it seems to have been held in the Privy {q) Smith v. The Creole and I'he Sampson, 2 "WaU. C. C. Rep. 485. Cf. The William, 4 Quebec L. R. 306. (>•) The Cambridge, The Underhill, and The Chase, 4 Bened. 366 ; CushuKj V. The Owners of The John Fraser, 21 How. 184 ; the Clarita, and The Clara, 23 Wall. 1 ; and The Galatea, 2 Otto, 439. lu The JR. B. Forbes, 1 Sprague, 328, and The Reseuc, 2 Sprague, 16, the tug was held liable for collision be- tween a tow, lashed alongside, and a third ship. (s) The Virginia Ehrman and The Ayncsr, 7 Otto, 309 ; The Cittj vf Hartford and The Unit, 7 Otto, 323; The Atlas, 3 Otto, 302; The Janiata, ibid. 337 ; The Sterling and The Equator, 16 Otto, 647. (s.s) The Avon and The Thomas JoUffe, (1891) P. 7. (0 The Stranger, Brown, Ad. 281 ; The Margaret, 4 Otto, 494. (u) See 1 Parsons on Shipping, ed. 1869, 536; The Quulcstvp, 9 AVall. 665. As to the duty of the tug with regard to the making up and navigation of the tow, see infra, p. 200. As to the law in France with regard to tlie respec- tise liabilities of tug and tow, see Cauuiout, Abordage .Nautique, §§ 216 Siq. [v) Page 180. (.r) The Christina, SW. Rob. 27; 6 Moo. P. C. C. 371 ; Smith v. St. Lawrence Tow Boat Co., L. R. 5 P. C. 308 ; TheJalia, Lush. 224 ; Spaight V. Tedeastle, infra ; The Isca, 12 P. D. 34; The Niobe, 13 P. D. 55. (y) Spaight v. Tedeastle, 6 App. Cas. 217 ; The Sinqiiasi, o P. 13. 241 : The Cirilta and The liestless, 13 Otto, 699. 198 TUG AND TOW. Danijer of double com- mand and divided re- sponsibility. Duty of tug in crowded waters. Duty of tug to wani tow of danger. Council (~) that it was not a breach of duty for the tug to pursue a coiu'se which, though imprudent, the pilot of the tow acquiesced in. The reason for the rule that, under ordinary circum- stances, the tug must obey the orders of the ship in tow is, that there may be no divided responsibility or double com- mand. It is considered necessary for the safety of both that they should be under the supreme command of one person. " I am well aware," said Dr. Lushington, " that mischief may in some instances arise from pilots (in charge of the tow) having entire control over steam tugs, and giving directions contrary to the judgment and experience of the masters of steam tugs, conversant as they are with every part of the waters in which they are employed. At the same time, I feel still greater difficidties woidd be occasioned by two conflicting and independent authorities being exercised in the navigation of one and the same vessel " {a). In crowded waters, with ships passing and repassing in all directions, it is obvious that frequent and sudden alterations in the course of the tug must be made to clear passing craft. Under such circumstances it is the duty of the tug to keep herself and her tow clear of other vessels without waiting for orders from her tow {h) . Althougli it is the duty of the tug to obey the orders from the ship in tow, her duty does not end here. It has been already stated that, in the absence of orders from the tow, she is bound to show proper care and skill in the course she takes and in the performance of the towage fi'j Smith V. St. Lawrence Toiv Boat Co., L. R. 5 P. C. 308 ; see per Lord Bl.'ickburn, Spahjht v. Tedcnstle, 6 App. Cas. 217, 222. In America corisideruble rcspousibility is thrown on the tug. Tluis it has been held that it is the duty of the tug to be acquainted with the waters she navigates, and to keep her tow clear of local dangers : The Ladij Filcc, 21 Wall. 1; The Webb, 14 Wall. 406 ; The Margaret, 4 Otto, 494. {a) The Christina, 3 W. Rob. 27, 33 ; in I%e Thilcc of Sussex, 1 W. Rob. 270, the decision was to the same effect, and upon similar grounds. [b) See The Sinquasi, 5 R. D. 241, supra, p. 187; The Isca, 12 P. D. 34 ; The India, Ad. Div. 7th Dec. 18S6. THE CONTRACT OF TOWAGE. 199 service. And if the orders she gets from the sliip in tow arc manifestly wrong, it is licr duty, even if the orders are given by a pilot in charge of the tow, to warn the tow of her danger. " The vessel and the lives of the crew are not to be risked because there is a law which imposes the ordinary responsibility upon one individual It is not for the steamer (the tug), knowing the danger, to maintain, as it were, a sulky silence, and make herself, as it were, instrumental in the destruction of life and pro- perty" (f). But except in case of manifest incapacity or error on the part of the pilot, it would seem that it is not the duty of the tug to exercise a discretion as to caiTjang out tlic pilot's orders ; nor would she be justified in dis- obeying them, although there may be risk of collision in carrying them out. If, dm-ing the performance of a towage contract, tlio Tow tla- ship in tow is injiu'cd by collision, and has to stop and ^^towa.'^^^''*^ repair her damage, and the tug stands by whilst the cuutiuct. repairs are being executed, and then completes the towage, the tug cannot recover in an action upon the towage con- tract additional remuneration for delay beyond the sum agreed to be paid for towage (a). Where the tug, in performance of a towage or salvage service, negligently damages her tow by collision, or in any other way, she forfeits her right to towage or salvage remuneration {c) . The following points have been decided with reference ]\rntual dtities to the mutual duties under the towagre contract of tue- and ?^ *"-" 'V^^.-, ~ o tow under the tow. The tug must be sufficient as regards seaworthiness, towage con- equipment and power to perform the service she under- Duties of the tug. (<•) The Duke of Manchester, 4 [d) The Iljemmett, 4 Asp. Mar. Not. of Cas. o7o, o82 ; 5 Not. of Law Cas. 274 ; o P. D. 227. Cas.470. The tus>- was, in this case, (<) The Christim, 'i'W .li(ib. 21, performing a ;-alvage scTvice. As as to the towage contract not beiug to the duty of tlie tow to warn the pcrfonned : The Buke of Manchester, tug of danger, Bee The Ntobc, siij^ra, iifd supra, as to salvage. But see p. 192. 'The Siceipsiakrs, Brown, Ad. 509, where a set-otf was allowed. 200 TUG AND TOW. Duties of the tow. takes (/), and there is an implied warranty by her owner that she is so (•) The Jane Bacon, 27 W. R. («) The Energy, L. R. 3 A. & E. 35 ; The Stranger, Brown, Ad. 281 ; 48. The Maria Martin, 12 Wall. 31. (.r) 27 W. R. 35. (.s) The Mam Houn.seU, 4 V. D. [y) The Julia, Lush. 224 ; and 204. see The Bohcrt Dixon, 4 P. D. 121 ; {t) The Jane Bacon, 11 W. R. 35. 5 P. D. 54 ; and infra, p. 204, 202 TUG AND TOW, The Energy. "WTiethcr tow-owners affected by- contributory negligence on part of com- pulsory pilot in charge of tow. orders, cannot recover against the tug, eitlier for injury wliicli she herself received in the collision, or for damages which she was compelled to pay to the thu'd ship. And this appears to be so, altliough the tug could witli ordinary care have avoided the collision. A barque in charge of a compulsory pilot was being towed up the Thames. She fell in with a brig working iip the river against a head wind. The pilot gave no orders to the tug, and the tug improperly attempted to cross the bows of the brig. The barque cast off her tow-line and attempted to go under the brig's stern, but failed to clear her. The collision might have been avoided if the tug had cast off the tow- line. The pilot gave no orders throughout. The barque was sued by the brig, and damages were recovered against her. In an action brought by the barque against the tug, it was held that she could not recover these damages, being herself partly in fault for the collision (;:). This case has been the subject of some discussion. It appears to have been assumed that the negligence of the pilot was contributory negligence on the part of the plaintiffs, or for which they were responsible, so as to prevent them from recovering for a loss caused partly by the fault of the tug. That this would be so where the pilotage is not compulsory is clear ; but there is considerable doubt whether the case is the same when the pilot is in charge by compulsion of law, and is not the servant or agent of the shipowner. This question was discussed, though not decided, in a case before the House of Lords. The question was as to the liability of the tug for damage to the tow caused by her getting ashore owing to the tug's negligence, there being also negligence on the pai-t of the compulsory pilot of the tow. It was held (in {£) The Energy, L. R. 3 A. & E. 48 ; and sre Smith v. Si. Lawrence Tow Mat Co., L. E,. o P. 0. 30S : The Robert Lixon, 4 1'. D. 121 ; b P. D. 54. As to County Coui-t jiu'iediction for breach of towage contract, sec The Isca, 12 P. D. 34. INCIDENTAL RIGHTS AND LIABILITIES. 203 Ireland) that the tow could not, in such a case, recover against the tug. The view taken of the facts by the Ilouse of Lords rendered the decision of this question unnecessary ; but Lords Selborne and Blackburn intimated their opinion that under such circumstances the owners of the tow would not be prevented by the negligence of the pilot fi-om re- covering against the tug («). A further question arises in such a case, whether the rule of equal division of the loss applies as between the tug and her tow. Where a tug, A., was in fault for a collision between her tow, B., and a third ship, C, and C. was also in fault for having an improper light, it was held by the Supreme Court of the United States that the rule of equal division of loss applied as between C. and A. (b) . In T/ic Energy this question does not aj)pear to have been discussed ; it seems to have been assumed that the plaintiffs, the owners of the tow, were entitled either to full damages or to nothing. A curious case (c) arose recently in Quebec, A tug in Tow in col- a gale being over-run by her tow, cast her off. The tow ^^^r casToff afterwards came into collision with a light-ship, for wliich, ^J t^g. in an action by the owners of the latter, she was held in fault. She subsequently sued the tug, alleging that the collision was caused by the effect of the tow ropes, after being cast off, upon her steering. It was held by the Vice- Admiralty Coui't that the tug was justified in casting off her tow under the circimistances ; it being also found as a fact that the tow was guilty of negligence, and that her steering was not affected by the tow-rope. AVliere the towage contract is not upon the ordinary Tugimdcr- terms, and the tug undertakes a larger responsibility as to ^utief ^^^^ («) Spa iff lit V. Tcdcastic, 6 App. Transport Co. v. ScivcU, 9 Duval's Cas. 217. The same qiicstiou was Rep. (Canada) 527. considered in another (Ii-ish) ease : {/>) The Jamis Gray and The John JiudiiHtn V. Dublin Tort and Bocks Frastr, 21 How. 184. Hoard, Ir. Eep. 7 C. L. 518. See (r) The Loyal v. The Chalknger^ also British Columbia Towing and 11 Quebec L. R. 135. 204 TUG AND TOW. Tug injiu'ed by negligence of another tug towing same ship. Recovery by tug against tow. Limitation of tug-owner's liability. the conduct of the tow than is usual, it may be her duty to act without orders from the tow (d). The facts of T/ic Tasmania {e) have been abeady stated. The collision there was between the tug and her tow, and was caused by the fault of the master of the tug, who was the servant of the charterer and not of the owner of the tug. It was held that the tug was not liable in rem because the tug-master, the Avi-ong-doer, was not the servant of the owners of the tug, and because the charterers and the tug were by the terms of the towage contract protected from liability for negligence of the tug-master. In an unreported case a tug. A., towing a vessel, B., was struck and injured by the tow-rope of another tug, C, which was ahead of A., and also towing B. It was held that the damage was caused by the fault of C. in having too long a scope of tow-line out, and also by the fault of A. in not keeping clear of the tow-line (/). The rule of division of loss appears to have been applied. For injury the tug receives herself, or for damages which she is compelled to pay in respect of a collision between herself and a thiixl ship, she cannot recover against the tow, unless the collision was caused by im- proper orders, or otherwise by the negligence of the tow. Where she could herself have avoided the collision, had she exercised ordinary care, she clearly could not recover against the tow merely on the ground that the latter gave no orders (//). For we have seen that under certain cu-- cumstances it is her duty to keep clear of other ships with- out waiting for orders from the tow. The liability of the owner of the tug for damage done to the tow by improper navigation of the tug in the perform- ance of the towage contract, is limited by the statute in this as in other cases of collision (h). {d) See The Ism, 12 P. D. 34, {f/) See The Sinqnasi, 5 P. D. 241. (c) 13 P. D. 110, supra, p. 92. (A) Wahlberg v. YoHng, 24 W. R- (/•) The Dighj Grand, Ad. Ct. 847; 45 L. J. C. P. 783. 30th April, 1884. INCIDENTAL RIGHTS AND IJABILITIES. 205 The owners of a ship that takes anotlier in tow are not Owners of a the less liable for a collision between the two ships, caused Jife "aheT"^ by the ncg-ligence of the towing'-sliip, because she is engaged f*'''P are liaiilc as a salvor or quasi-salvor. Tlie steamship TJtetin fell in between with The Sardis in a disabled state. The master of T/te salved ship and Kalvor. T/ictis agreed to tow the latter to port. He had received no instructions from his owner as to offering towage or salvage service to other ships, but the policy of insurance effected upon T//e Thetis, and her bills of lading, contained provisions as to her performing such services. In attempt- ing to take The Sardis in tow The Thetis negligently ran into and sank her. It was held that the master of The Thetis was acting "\\-ithin the scope of his employment in undertaking to tow The Sardis, and her owners were held liable for the collision {i). In one case it was contended that, the tug being the Doctrine of servant of the tow, the doctrine of common employment (/.•) pioyment does applied, as between the tug and the servants of the owaiers ^^^ "PP'>' ^^ p ., , 1 „ , between tug 01 the tow, SO as to prevent the owners of the tug recovering and servants against the tow and her owners damages for a collision ^'^^'^'^"'^ <^f between tug and tow caused by the fault of the tow. This argmnent did not succeed (/). For a collision caused by the fault of the tug in taking Improper an improper number of vessels in tow either between the "^""g^j^ ^^w vessels in tow, or between one of them and a stranger, the owners of the tug would jyrima facie be liable to the owners of the tow upon the towage contract (w). It is not unusual for tug-owners to relieve themselves from this liability by expressly contracting that they shaU not be answerable for the negligence of their servants on board the tug («). The mere fact that one of the vessels in tow strikes and damages another vessel in tow, raises no presumption of negligence on her part. It A\as so held where the leading (^) T/ie Thetis, L. R. 2 A. & E. (/) The Julia, Lush. 224. 365. (w) See The United Service, S P. [k) Priesthj v. Fowler, 3 M. & D. 56 ; 9 P. D. 3. W. 1. («) The United Service, iibi supra. 206 TUG AND TOW. With whom the command rests where more than one vessel is in tow. Admiralty jurisdiction in case of negligent towage. vessel in tow took the ground, and tlio following vessel ran into lier (o). Where two or more ships are in tow of the same tug, and no agreement has been come to between them and the tug as to which ship is to have the command, it lias not been decided with whom the command rests {])). But it has been held in such a case that one of the ships in tow could not recover against the tug for damage caused by being under way in a thick fog when they ought all to have brought up. It was assumed by the Court that it was the duty of the ship in tow to give the order to bring up ((/). Where two vessels were in tow of the same tug, without objection on the part of that one of them which was nearest the tug, and this vessel took the ground and was run into by the other astern, it was held that she could not recover against the vessel that ran into her (r). In a Canadian case (.s) a sailing ship in tow with her sail set, was held in fault for a collision with an overtaking and passing steamship, against which she was driven by another ship in tow of the same tug striking her on her quarter. The tug can be sued in rem for damage to the ship in tow received in a collision caused by negligent towage, wliether such damage is sustained by the tow in a collision with a third ship or with the tug {t). And the tug may be sued in Admii-alty for damages wliich the tow has been compelled to pay to a third ship for a collision caused by the fault of the tug {ii). (o) See Harris v. Anderson, 14 C. B. N. S. 499. {p) The Gipsy King, 5 Not. of Cas. 282. iq) Smith v. 67. Lawrence Tow Boat Co., L. R. 5 C. P. 308. (r) Harris v. Anderson, 14 C. B. N. S. 499. (.s) The Farewell, 8 Quehec L. R. 87. [t) The Nifjhtu'atvh, Lush. .542 ; The Julia, ib. 224. («) The Energy, L. R. 3 A. & E. 48. It seems that the Admiralty Court has jurisdiction in a claim for damage caused by negligent towage, whether such damage is received in a collision or not : • see sup. i^p. 27, note {u), 85. The Admi- ralty jurisdiction of the United States Courts includes all claims arising out of towage contracts : 2 Parsons on Ship. (ed. 1869), 176, 188 ; The WM, 14 WaU. 406. THIRD PARTY PROCEDURE. 207 Attempts have been made to try the question between Third party tug and tow, us to the ultimate liability for collision with ^^'^^'^ "^^" a tliird ship by means of the third party procedure under the Judicature Act. The existing rules do not enable a third party to be brought in for such a purpose (.r) . (:r) See Ord. XVI. r. 48 ; i»fra, p. 319. ( 208 ) CHAPTER IX. FOREIGN SHIPS — FOREIGN LAW — FOREIGN JUDGMENTS. Law applic- In collision cases where one or both the ships are foreign, able to toreign q^ggfigns frequently arise as to the law applicable to the collision in case, and particularly as to the application of British waters! statutes to foreign ships. The general rule is that muni- cipal laws are binding u2:)on the subjects of the state by which they are enacted everywhere, but upon foreigners only when they are within its jurisdiction (a). The prin- ciple which governs questions of jurisdiction and remedies has been thus stated : " In regard to the merits and rights involved in actions, the law of the place where they originated is to govern .... but the forms of remedies, and the order of judicial proceedings, are to be according to the law of the place where the action is instituted, with- out any regard to the domicil of the parties, the origin of the right, or the country of the act " (h). Before the passing of 25 & 26 Yict. c. 03, foreign laws, and the general maritime law, touching the steps to be taken to avoid collision, and the extent of the shipowner's liability, differed from the law of this country, and ques- tions of difficulty arose in the case of collisions where one or both ships were foreign as to the law applicable to the case. By the Act above mentioned it is provided, with (a) As to the limits of British 14, § 558, 7th ed. p. 702 ; and see jurisdiction, see T/ic Saxonia and Donn v. Lippnian, 5 CI. & Fin. 1. The Eclipse, Lush. 410 ; The Anna- So a foreigner in France suing for polls and The Johanna HioH, Lush. a collision is subject to the dis- 2^h\ Re(/inav.Keyn,The Franconia, abilities [Jin de nan reccvoir) oi the 2 Ex. D. 63 : of Admiralty juris- Code de Commerce, Arts. 435, 436 ; diction, infra, p. 209. Abordage Nautique, Caumont, §§ [b] Story's Conflict of Laws, Ch. 82, 83. ADMIKAI.'IV .lUllISDICTIOX. 209 reference to the rule of the road and the extent of ship- owners' liahilit}', that in the courts of this country foreign ships sliall be judged by the British law. There are, how- ever, several points upon which the decisions above referred to (c) are material, and as to which there is some doubt whether British or foreign law is to prevail. As stated above, the general rule — where the matter is not expressly provided for by statute — is, that as to rights and merits the law of the place of collision {lex loci), and as to remedies and procedure the law of the tribunal {lex fori), is to prevail. The form in which the question may arise at the present day is indicated below. Actions for collision are said to be communis juris, and Jurisdiction the Admiralty Court never refused to entertain an action Courtrwhere merely because both ships were foreign {d), or their owners ^oth the ships not British subjects {e), or because the collision occm-red in ° foreign waters (_/"). The ancient jurisdiction of the Admiralty extended over Limits of all waters where the tide ebbs and flows and where great j,^isdiction ships are accustomed to go {g) ; but after the enactment of 1'3 Kic. II. st. 1, c. 5, and 15 Ric. II. c. 3, and until the modern statutes enlarging the jurisdiction of the Admiralty Com-t {h), the Coiu't was liable to be restrained by pro- hibition from exercising its jurisdiction if the collision occurred in this country within the body of a county (/). [c) See infra, pp. 215, 216, as to these cases. {d) The Johann Friederich, 1 W. Rob. 35 ; The Charkieh, L. R. 4 A. & E. 120; and see The EvangcUstria, 25 W. R. 255 (ownership of a foreign vessel) ; In re Smith, 1 P. D. 300; The Griefmcnld, Swab. 430 ; The Vivar, 2 JP. D. 29 ; and per Story, J., The Invincible, 2 Gall. 29 ; The Anna Johnson, 2 Stuart's V. Ad. Rep. (Canada), 43. {e) In The (.'uurier. Lush. 541, neither of the ships were owned by British subjects, and the collision was in foreigni waters. .M. (/) In The Diana, Lush. 539, decided since 24 Vict. c. 10, the ships were owned by British sub- jects, and the collision was in foreign inland waters. (^) See per Blackburn, J., Beg. V. Anderson, L. R. 1 C. C. R. 101 ; Reg. V. Carr, 10 Q. B. D. 76. (A) 3 & 4 Vict. 0. 65 ; 24 Vict, c. 10. (() Martin v. Green, 1 Keb. 730 ; Violet V. Blague, Cro. Jac. 514 ; Velthasen v. Ormsley, 3 T. R. 315. In Dorrington'' s Case, Moore, 916 (13 Jac. 1), a prohibition went in the case of a collision at Redritfe in 210 FOREIGN SHIPS — FOREIGN LAW FOREIGN JUDGMENTS. Jurisdiction at common law when the collision is abroad. "Where not prohibited the Admiralty Court appears to have exercised the jurisdiction even where the collision was in the body of a county, at least where the ship sued was foreign, and the plaintiff would otherwise be without a remedy (J) . At the present day there is no doubt that the Admiralty Division has jui-isdiction, and will exercise it, whether the collision occurs within the ebb and flow of the tide or not, and whether in British or foreign waters or on the high seas (/t). The liability of a foreign ship that has injured property of a British subject in any part of the world to be detained until satisfaction is made to the sufferer, is referred to below (/). It has been held (/») that a County Court has Admii^alty jurisdiction in respect of damages by a collision which occurred in a dock connected with a tidal river (the Thames) by a lock. And it seems that the Admiralty Division of the High Com-t also has jurisdiction in such a case (rt). Dr. Lushington exercised the jurisdiction in the case of a collision in foreign inland waters — the Great North of Holland Canal (o) . The common law com"ts have jurisdiction, whether the ships are British or foreign, and whether the collision occurs in foreign waters, or elsewhere. " The right of all persons, whether British subjects or aliens, to sue in the English courts for damages in respect of torts committed in foreign countries, has long since been established ; and, the Thames. The Public Opinion, 2 Hag. 3D8 ; The Eliza Jane, 3 Hag. 335 ; The Lord of the Isles, cited in The Puhlic Opiniofi, supra. (j) Fairlcss v. Thorsen, The Good Intent, and The J'nnce Christian, Marsden's Ad. Ca. 130. As to Admiralty jiirisdiction generally, see I)e Lovio v. Boit, 2 Gall. 398 ; The Volant, 1 Not. of Cas. 503, 509. As to Canadian inland waters, see 40 Vict. c. 21 (Canada); Tlic Ticton, 4 Duval's (Canada) Rep. 048. (A-) The Diana, Lush. 539 (col- lision in the Great North of Hol- land Canal) ; Tlie Courier, Lush. 541 ; The Mali Iro, L. R. 2 A. & E. 356 ; as to colonial waters, see The Peerless, Lush. 30 ; as to a collision in a London dock, see Reg. v. Judge of City of London Court, 10 Q. B. D. (i09. [1] Infra, p. 211. [m) Reef. v. Judge of Cit>/ of London Court, 8Q. B. D. 009. {n) Under 24 Vict. c. 10, s. 7. [u) The Diana, Lush. 539. LIAHlT.riY OF FOKKKiX OWNKltS, 211 as is observed in the note to MoHtijn v. Fabrifjas (p), there seems to be no reason why aliens should not sue in England for personal injuries done to them by other aliens abroad, when such injuries are actionable both by the law of England, and also by that of the country where they are committed ; and the impression which had prevailed to the contrary seems erroneous " (q). Neither in the Admiralty, nor in the Queen's Bench Liability of Division, can a personal action for damages in respect of a resident collision occurring below low-water mark of the coasts of "^broad. the United Kingdom be brought against a person not domiciled or ordinarily resident within the jurisdiction, unless the writ of summons can be served witliin the jm-isdiction (r). A foreign ship that has injm-ed a British sliip or property Detention of of a British subject in any part of the world may be ^w has'*^^^ detained if found within three miles of the coasts of the injm-ed pro- United Kingdom, so as to compel her owners to abide the Britfsh event of any action in the com'ts of this country for subject, damage caused by her (s). And it seems that in such a case she is liable in an action in rem (f). But the ship cannot under this Act be detained in respect of personal injury (it) ; and it has been doubted wliotlier she coidd be seized whilst passing the coasts of this country on a foreign voyage (.*■). The question whether an action can be maintained in Action in this any court in this country for a wrongful act to a pier or damao-e to breakwater forming part of the soil of a foreign coimtry P^^^ abroad, has not been decided. It arose in T/ie M. Mox/iam, but, (p) 1 Smith's L. C, 9th ed. 666. (<7) i'er Sehvyii, L. J., The Hallci/, L. R. 2 P. C. 193, 202, 203. aiid see perBvcti, M. R., 10 Q. B. D. 637. (>•) See below, p. 304. (,s) 17 & 18 Vict. c. 104, s. 527. The C/iri.s(iana, 2 Hag-. 183, is a decision undei* the similar Act, 1 & 2 Geo. 4, c. 75. In America aiiv property of the owners of the ship sued which is found within the jurisdiction may be seized ; 2 Par- sons on Ship. (ed. 1869), 390. {() The Bilbao, Lush. 149. {u) Harris V. Owners of The Fran- couia, 2 C. P. D. 173. (.r) See per Cockburn, C. J., Rc(/, V. Keyn, 2 Ex. D. 63, 218. )■ "J 212 FOREIGN SHIPS — FOKEIGX LAW — FOREIGN JUDGMENTS. Law of neg- ligence and of liability for negligence applicable to foreign ships. Liability for negligence by general maritime law. by consent of the parties, no objection to tbe jurisdiction was taken. James and Mellisb, L.J J., appear to have had doubts as to the jurisdiction (y). Before the enactment of the existing International Re- gulations for Preventing Collisions at Sea, the question of negligence in all cases of collision was tried by the general maritime law : in other words, by those rules of seaman- ship, which, it was assumed, were common to seamen of all nations (:;). Thus the rule that a vessel on the port tack should bear \i]) for another on the starboard tack was applied to all ships whether British or foreign. And at the present day, so far as the Regulations do not extend, or where they are not applicable, the test of negligence is the same ; namely, the general practice of seamen, or, as it is sometimes called, the general maritime law. The law applicable in this country to cases of collision on the high seas, where one or both ships are foreign, is the maritime law as administered in England, and not the law of the flags [n) . By that law the shipowner is liable for the negligence of the master and crew of his ship {b). And it appears that the liability is the same whether the action is in a court having Admiralty jurisdiction or not ((•). In the coiu-ts of this country, the rights and duties of persons navigating vessels, whether in British {>/) See Foote's Vviv. Intemat. Law, 209 seq. (z) See The Dumfries, Swab. 63, 125. («) The Johann Friederieh, 1 W. Rob. 35 ; The Dmidce, 1 Hag. Ad. 120; The Leon, 6 P. D. 148; The Milan, Lush. 388; Foote's Priv. Intemat. Law, pp. 308-403 ; and see per Lindley, L. J., Chartered Mercantile Bank of India v. Nether- lands India Steam Navigation Co., 10 Q. B. D. 521, 545 ; and siqmi, pp. 3, 94. [b) Jte>- Brett, M. R., 10 Q. B. D. 537 ; Coke's Inst. 4th Pt. fo. 146. Semhle, only where the master and crew are his agents. It may be noted that the form of sentence by which, according to the ancient practice of the Admiralty Court, the owners, intervening for their interest in an action in rem, were condemned in damages, was, that the collision having been caused by the fault or negligence of the master and crew of the ship sued, her owners, therefore, were liable. There is no reference in the sen- tence to the liability of the owners or of the ship being founded upon the fact of the crew being the agents of the shipowner. See, however, Waltham v. Mulyar, Moore, 776. (c) Fer Brett, M. R., 10 Q. B. D. 537 ; Coke's Inst. 4th Pt. fo. 146. LIAHILITY FOR COLLISION AUROAD OR AT SEA. 213 temtorial waters or on the liigli seas, are the same. It is their duty so to exercise their riglit as to do no damage to the property of others (d). Thus an Enghsh telegrapli company sued and recovered damages against the owners of a foreign vessel for injury done to the company's cable, which lay at the bottom of the sea, by the ship's anchor (e). In the case of T/ic Leon (_/'), in an action in j)Ci'HO)iam in tlio Admiralty Division by the owners of a British ship against the owners resident in England of a Spanish ship for damages in res}ioct of a collision between the two ships on the liigh seiis, it was pleaded that the negligence on the part of the Spanish ship (if any) was negligence of the master or crew, for which, by the law of Spain, the master or crew, and not the shipowners, were liable. It was held by Sir Iv. Phillimore that by the general maritime law, and by the law of England as administered in Admiralty, the defendants, the foreign owners, were liable. Again, in a case before the Court of Appeal, an English company, registered under the Companies Act, 1 802, were sued in tort by the owners of cargo on board a vessel that was sunk in a collision caused partly by the fault of the defendants' ship, which had a foreign register and sailed under the foreign flag {g). The defendants ad- mitting that they represented the foreign owners for the purposes of the action, it was held that they were liable. And it was said that even without tlie admission the deci- sion would probably have been the same, the foreign owners being bare trustees for the defendants (//). In an action in a common law court by the owners of a British ship against a French subject for a collision with {d) Per Willes, J., Submarine registered in Holland in the name Telegraph Co. v. Dickson, L5 C. B. of a Diitoh compan}-, the members N. S. 759, 779. of which were the same a.s those of {() Submarine Telegraph Co. v. the Enirlish compauj'. Dickson, ubi supra. (//) Chartered Mercantile Bank of (/) 6 P. D. 148. Dtdia, ^-c. v. Xetherlands India Steam {(/) To enable her to trade with Navigation Co., 10 Q. B. D. 521, the Dutch East Indies she was 545. 214 FOREIGN SHIPS — FOREIGN LAW — FOREIGN JUDGMENTS. a FreucL. ship on tlie liigli seas, it was pleaded that the injun' complained of happened out of British jurisdiction, and that it was not committed by the defendant personally, but by the master of the French ship ; that the defendant was a French subject ; that by the law of France he was not liable for the acts of the master ; and that by the same law a French corporation, who were the proprietors of the ship, and the master's employers, were alone liable. The plea was held good (/) . Application of The liability depends, in some cases, upon the law of the to lit^mty^for V^^^^ where the collision occurs, and of the country to which negligence. the ship belongs. If it occurs in the territorial waters of a country by the law of which an owner is not liable for the wrongful acts of his officers or crew, it seems that he would not be liable in the courts of this country (/•). For the question whether a particular person is liable for an act which is wrongful by the law of the place where it is com- mitted depends on the substantive law of the country where the act is done (/). In such a case, therefore, it is the kx loci and not the lex fori which governs. Nor is the defen- dant liable, in this country, for a collision in a foreign country, unless the negligence causing the collision is that of a person for whose acts he is responsible by the law of England. " No action can be maintained in the courts of this country on account of a wrongful act either to a person or to personal property committed within the jurisdiction of a foreign country, unless the act is wrongful by the law of the country where it is committed, and also by the law of this country "(?»). In T/ie M. Iloxham an English company, possessed of a pier in Spain, instituted an action in the Admiralty Court against a British ship for negligently injuring the pier. (i) General Steam Naviqai'mi Co. {I) Per Mellish, L. J., The M. V. Gillou, 11 M. & W. 877, 895. Sloxham, I P. D. 107, 113. (/.-) See per Brett, M. R., Char- (m) I'er Mellish, L. J., in The M. tcred Mercantile Bank of liulla v. Moxham, 1 P. D. 107, 11 1 ; and see Netherlands India Steam Navigation per Lord Blackburn, The Vera Cruz, Co., 10 Q. B. D. 521, 536. 10 App. Cas. 5'J, 72. KULE OF THE ROAD FOTl FOREIGN' SHIPS. 215 The shipowners, hy their answer, pleaded tliat by the law of Spain they were not liable for the negligence of the crew in the navigation of the ship. The Court of Appeal held that, assuming the Court had jui-isdiction, the law of Sixain was applicable, and that the plea was good {//). So if the collision occurs in foreign Avaters by the fault of a pilot the employment of whom is compulsory by the foreign law, the owners will not be liable in the courts of this country ; and they are not liable here, altliough by the law of the place of collision they would be liable in the foreign court (o) . It has been held, where there are several claims against Order of a ship, that they must rank and be paid according to ashTpSL"^* British law, tlie matter being governed by the kxfun{p). /«■'• The statutory rules as to steps to be taken to avoid Rule of the collision, which were contained in the Merchant Shippinsr f '^'^ ^°^ , . . r± o toreig-n snips. and other Acts previous to 25 & 26 Vict. c. 63, were held not to apply in the case of a collision between two foreign ships, or a Britisli and a foreign sliij), on tlie high seas. The question of negligence in such cases was tried by the general maritime law, imder wliicli the steps required to be taken to avoid collision were not always identical with those required by the British statute. A ship, therefore, meeting another on the high seas, had to obey one rule, if both ships were British, and another, and a different rule, if one were not British (ry). This state of things, which could not fail to be productive of colhsions, led to the adoption of the existing International Regulations {r). {>/) TheM.Moxham, 1 P. D. 107. (o) The RaUeij, L. R. 2 P. C. 193 ; and. see The Out/ Mannerinff, 7 P. D. o2, 132 ; The Augusta, 6 Asp. M. C. 58, 161. [p) The Union, 3 L. T. N. S. 280 ; Story, Conflict of Laws, par. 571. {q) The Bumf ricK, Swab. Ad. 63 ; The Saxon ia and The Eclipse, Lush. •110 ; The Zoilverein, Swab. Ad. 96 ; The Elizabeth, 3 L. T. N. S. 159. The general maritime law em- bodied the "port tack" rule— thata sailing ship on the port tack should give way to another on the star- board tack : see The Dumfries, tibi supra. (;•) As to the circumstances under which these Regulations were jno- mulgated, see infra, p. 341, 216 FOREIGN SHIPS FOREIGN LAW — FOREIGN JUDGMENTS. Application of British local regula- tions to foreign ships. Application to British ships of foreign local regulations. Application to foreign ships of rules as to pre- sumption of fault con- tained in the British statute. No question as to the rule of the road, or as to the law applicable to the particular case, such as arose in the cases decided under former Acts, can now be raised. All mari- time nations having adopted the Regulations, and the courts of this country being required by the municipal law to apply the Regulations to the ships of all nations that have adopted them, the rule of the road is the same for all ships, and is recognized alike by international, municipal, and maritime law (.s). Foreign ships, equally with British ships, are bound to know and observe local Regulations for preventing collisions in force in various rivers and harbours of this country {t). Foreign municipal regulations as to ships' lights, and rules to be observed in navigating foreign waters, though they have not in the courts of this country the force of law, may, as evidence of negligence, be of importance in determining the liability for a collision in such waters. The effect of special regulations made by the Government of this or a foreign country for its ships of war and for ships under convoy is expressly saved by the Regula- tions {i(). The law by which the owners of a ship that has been in collision are, upon proof of certain circumstances as to infringement of the Regulations, or as to not assisting the other ship, made liable for the collision, without proof of actual negligence upon the part of their ship, has been considered in a former chapter (x) . There seems to be no (s) The exceptions with regard to fishing vessels' hghts created by the Regulations of 1884 (as to which see infra, p. 38o), are pro- bably temporary, it being, doubt- less, intended to obtain the ad- herence of foreign nations to one Code. In one case a Portuguese Court placed a construction upon one of the Regulations, which was directly opjiosite to that borne by the English version. Tliis was clearly an error of the Portuguese Court, and has been corrected ; see infra, p. 345. {t) 25 & 26 Vict. c. 63, ss. 32, 57 ; see The Fycnoord, Swab. Ad. 374 ; The Stiuc, ibid. 411, as to the law on this subject under the M. S. Act, 1854; and see 'J'hc Michclimo and The Dacca, Mitch. Mar. Reg. 1877, as to the application to British ships of local Regulations abroad. («) Art. 26, iiifra, p. 527. (.(•) tSupra, pp. 38, 65. RULE AS TO PRESUMPTION OF I'AULT. 217 doubt that tliese enactments apply to foreign ships (//), In various cases the rule as to infringement of the Regu- lations has been assumed to apply to a British and foreign shij) in collision in British waters and also on the high seas (~). The wording of the enactment as to not standing by to assist favours the contention that that part of the section which relates to presumption of fault applies to foreign as well as British ships. Both sections, moreover, would probably be held to be rules of evidence, or other- wise applicable to foreign ships as lex fori (a). {!/) The Magnet, L. R. 4 A. & E. 417 ; see per Sir R. Phillimore iu Reg. V. Kei/n, 2 Ex. D. 03, 85. The doubt expre-^sed by the Privy Coun- cil iu T/ie Fannij M. Carvill, 2 Asp. Mar. Law Cas. 565, 669, appears to be not well founded. iz) The EiuiUshman, 3 P. D. IS ; The Vooricaarix and The Khedive, 7 App. Cas. 795 ; 'The J'era Cruz (No. 1 ), 9 P. D. 88. See also The Jiritish I'rinccss and The Sedmi Dxbroraelii, Ad. Ct. March 11— 14th, 1878, Mitch. Mar. Reg. ; The Magdehurgh and The Jlviinj inilard (American), Ad. Div. 16th Jan. 1885 ; The Love Bird, 6 P. D. 80. It will be noticed that iu 36 A: 37 Vict. c. 85, there i.s no enactment corresjionding to s. 58 of 25 ic 26 Vict. c. 63, whereby in certain cases power is given to apply by Order in Coujicil provision.s of the A('t relating to coUi.^ions to foreign ships out of British juris- diction. («) It was held by Dr. Lushing- ton in The Zollverein, Swab. Ad. 96, that s. 298 of 17 & 18 Vict. c. 104, ■was a lex fori relating to remedies. In that case the section was held not to apply in the case of a colli- sion between a British and a foreign ship on the high seas, so as to pre- vent the British ship from recover- ing against the foreig-ncr. The groTuid of the decision was that the previous section (s. 296), contain- ing the rule of the road, was a municipal law not applicable to foreign ships on the high seas, and that therefore s. 298, wliich de- pended on s. 296, had no a2)j)lica- tion to the foreign ship. Since, therefore, the foreigner was not prevented by s. 298 from recovering agaiu.st a British ship that to -which by the maritime law he would be entitled, it was held to be unfair to allow the foreigner to avail himself of a breach by the Briti-h .ship of the municipal law as a defence. The existing Regulations being international, it is submitted that the decision in The Zollverein, as to the ai>plication of s. 298 of the Act of 1854, affords no ground for con- tending that s. 1 7 of the Act of 1873 does not apply to foreign ships. In The Nevada, 1 A-^p. Mar. Law Cas. 477, however, the Vice-Admiralty Court of N. S. WhIcs held that s. 33 of the Act of 1S62 did not apply to an American .«hip. In Tlie Ger- mania, 3 Mar. Law Cas. 0. S. 140, s. 29 of 25 & 26 Vict. c. 63, was ap- plied to a foreign ship ; but in the same case on apfieal (ibid. 269) Lord Romilly appears to have considered that s. 33 of that Act (as to "stand- ing by") applied only to British ships. In The Thiiruigia, 1 Asp. Mar. Law Cas. 283, nothing was said as to the application of that section to a foreign ship on the high .seas. As to the effect of ss. 5" and 58 of the same Act, see the ob- servations of Lord Chelmsford in The Amalia, 1 Moo. P. C. C. N. S. 471, 485. See further as to these enactments, supra, pp. 38 — 65. 218 rOREIGX SHIPS rOUEIGN LAW — FOREIGN JUDGMENTS. Defence of " compulsory pilotaure " available for foreign ships. Compulsory pilotage abroad. Statutory limitation of liability applies to foreign ships. The defence of compulsory pilotage is available for a foreign as well as for a British ship {b). The statutory- exemption of owners from liability for damage done by a ship when in charge of a compulsory pilot probably applies to foreign ships (r) ; and, independently of the statute, foreign as well as British owners are not liable for the acts of a person placed in charge of their ship by the state (d). The employment of a pilot may, by statute, be made compulsory on a foreign ship visiting this country, even where she is beyond three miles from the shores of the United Kingdom {e). The owners of a British ship, which had been in collision with a foreign ship in the Scheldt, were sued by the foreign ship in this country. The British ship alleged that the collision was caused entirely by the negligence of the pilot, whom, by the Belgian law in force in the Scheldt, she was compelled to take. By the Belgian law owners are liable for the acts of a compulsory pilot. It was held by the Privy Council (reversing the decision of Court below) that the Belgian law, which imposed a liability upon owners to which they were not subject, either by the law of this country or by any principle of justice, had no application, and that the British owners were not liable (/). In a former chapter it has been stated that the common law right of a sufferer by collision to obtain from the wrong-doer a full recompense has, from time to time, been (i) As to compulsory pilotage generally, see Ch. X. [c) As did the former Pilotage Act, 6 Geo. 4, c. 125, s. 55 ; see The Christiana, 2 Hag. 183. {(l) 17 & 18 Vict. c. 104, 8. 388 ; The iMaria, 1 W. Rob. 95, 106. In The Girolamo, 3 Hag. Ad. 169, and other cases under 6 Geo. 4, c. 125, it was held that tlie statutory ex- emption of owners from liability for the fault of a compulsory pilot did not apply so as to exempt the owners of a foreign ship in proceed- ings in rem. In The Vernon, 1 W. Hob. 316, Dr Lushington appears to have considered that the statu- tory exemption of owners was lex fori. le) The Annapolis and The Jo- hanna Stall, Lush. 295 ; but see 41 & 42 Vict. c. 73. (/) The RalUnj, L. R. 2 P. C. 193 ; in the Court below, ibid. 2 A. & E. 3 ; see also The Guy Manner- buj, 7 P. D. 52, 132 ; The Augusta, 6 Asp. M. C. 58, 161. LIMll ATtON OK 1,1 A1',I I.ITV. . 219 considerably' modified hy British statutos. Until tho passing- of 2o & 2G Vict. c. 0'}, the Act now in force, there was freqnently great difliculty, in cases where one or both the ships in collision were foreign, in determining whether the municipal law limiting owners' liability was, or was not, applicable (g) . At the present day no such difficulty can arise. Whether the ships are both British, or both foreign, or one British and on(! foreign, and whether tho collision occurs in British Avaters or on the high seas, the limit of owners' liability is the same, namely, that fixed by 25 & 2t) Vict. c. m. In T/ic Atnalia (Ji) it was held that the liability of the owners of a British ship in collision with a foreign ship on the high seas (in the Mediterranean) is limited by the Act of 1862. It was contended that the Legislature had no power to alter the rights of foreigners in the case of a collision on the high seas, or to limit the amount of the damages to which by tho maritime law they were entitled. It was, however, held by the Privy Council (afBrming the decision of Dr. Ijushington) that there is no breach of international law in such legislation ; and it was said by Lord Chelmsford, in the course of the judgment, and the decision in the case went upon the principle that the owners of a foreign ship in a similar case would be entitled to the benefit of the Act, by which in all cases the liability of tho owners of a foreign ship is limited in the same way, {g) The provisions of the M. S. dom, was uulimited : Cope v. JDo- Act, 1854, did not, in terms, apply hertij, 4 K. & J. 367 ; on app. 2 Do to foreigners. Under this Act it G. & J. 614 ; and that tho liability- was held that the liability of the of the owners of a foreign ship in owners of a British ship in collision collision with a British ship, be- with a foreigner, within three miles yond the three mile limit, was nn- of the shores of the United King- limited: The jn/d Ranycr, Lush. dom, was limited : General Iron 563 ; even although the foreign Screw Collier Co. v. Schurmanns, 1 ship's liability by the mimicipal J. & H. 180; but see 'J'/w SIS A 1,11! I PENDENS. 223 in an action in wliicli damages are claimed under Lord Campbell's Act (a-) . It seems that 17 & 18 Vict. c. 104, s. 512, relating- to Whether 17 & proceedings by the Board of Trade in case of loss of life i^^l2^appuJ; or personal injury, does not apply to a foreign ship; and to foreigu that this is the case whether the collision is in British or foreign waters or on the high seas. In such a case, therefore, an action may be brought under Lord Camp- bell's Act for personal injury caused by a foreign ship, without regard to the institution of proceedings by the Board of Trade (//). But it has been pointed out that in such a case there is no jurisdiction to proceed in Admiralty against the ship {z). In the case of a collision in foreign waters, or between Lis alibi foreign ships, if it is clear that an action ii/ rem is pending forei-m c° urt in a foreign Coiu't in respect of the same matter, the Court has a discretion (a) to stay its proceedings, or to put the plaintiff to his election whether he will abandon one or other of the actions {b) . Where an action by the owners of ship A. against ship B. was pending in a Vice- Admiralty Court abroad, proceedings by the owners of ship B. against ship A. in the English Admiralty were stayed {c). In a case of wilful damage by the master of a foreign {x) The Vera Cruz (No. 2), 9 P. in Scott v. Seymour, 1 H. & C. 219, D. 96 ; affirmed, 10 App. Cas. 59 ; 229. ^//(7<;>- in America, Ex parte Gordon, (i) See Mutrie v. Binney, 35 Ch. 14 Otto, 51o. D. G14, followed in llie Christians- {>/) It was so held in The Vera hon/, 10 P. D. 141 : The Mali Ivo, Cruz (No. 1), 9 P. D. 88, where the L.R. 2 A. & P]. .So6 ; The Catterina collision was in British waters, by Chiazzare, 1 P. D. 368 ; see The Butt, J., after long argument. The Delta, 1 P D. 393, 404; The case, however, is not decisive, be- Lanarkshire, 2 Sp. A. & E. 189 cause it was subsequently decided Ifyman v. Helm, 24 Ch. D. 531 bv the Court of Appeal, ^Thc Vera McIIr»ri/ v. Lewis, 22 Cli. D. 397 Cruz (No. 2), 9 P. D. 96, that the The Itcinheck, 6 Asp. M. C. 366. as Court below had ni) jurisdiction to the circumstances under wliicli in the case. an action in England will be re- [z) The Vera Cruz (No. 2), supra. strained pending an action in re- (a) As to the validity of the plea sj^ect of the same matter abroad. oi lis alilii pendens in iiiorvv^ucimvt, (c) The Teshauur, 8 P. D. 32. as a defence, see jon* Pollock, C. B., 224 FORKIGX SHirS FOREIGN ];.\"\V — FOREIGN JUDGMENTS. IRes judicata : effect of foreign judg- ment. ship to another foreign ship in foreign waters, the Admi- ralty Court refused to entertain the action {/I). The judgment of a competent foreign Court (and for this purpose Irish, Scotch, and Colonial Courts are foreign Courts) delivered before action brought in this country [e) upon the merits (/) of a collision, given in the presence of both parties, is, if final and conclusive {g), a bar to an action in this country between the same parties [h) for the same collision (/). The Courts of this country will not entertain an action in such a case, although fresh evidence may have been discovered, and although all the facts were not before the foreign tribunal (/) ; nor because the foreign Court was misinformed as to English law (/.■). If the parties are not the same, as where the ship-owners sue in one country and the cargo- owners in the other (/) ; or if the foreign tribunal had not jurisdiction [ni] ; or if the plaintiffs in this country were not subjects of, nor resident, nor present in the foreign country, and did not as plaintiffs abroad select the foreign tribunal (>/) : or if the foreign judgment went by default (o) ; or was against natural justice, as where the foreign judges were interested {d) The Ida, Lush. G. It has been pointed out that this case was decided before 24 Vict. c. 10, came into force. (e) The Delta, 1 P. D. 393. See Housioun V. Marquis of Sligo, 29 Ch. D. 448. (/) The Delta, uhi supra ; Harris V. Qutt/r, L. R. 4 Q. B. 653. (/y) Jfcndersonv. Henderson, 3 Ha. 117; I'lummer Y. Woodburn, 4 B. & C. 625, 637 ; Fraijes v. Worms, 10 C. B. N. 8. 149 ; Nourion v. Free- man. 15 Apj). Cas. 1 ; (decision on collateral points not binding) Concha V. Concha, 11 App. Cas. 541. (A) As to wiiat is a judgment between the same parties, Arnison V. Smith, 40 Ch. D. 567. (j) See Phillimore's Internat. Law, 2nd ed. IV. 733 seq. ; West- lake's Priv. Internat. Law, 376 ; Foote's Priv. Internat. Law, 476 ; Roscoe, Nisi Prius, 15th ed. 196. {j ) Re Trufort, Trafford v. Diane, 36 Ch. D. 600. [k) Godard v. Graij, L. P. 6 Q. B. 139. (/) Cf. The Fennsyhania, 19 Wall. 125 ; The Tennsylvanla, 3 Mar. Law Cas. 0. S. 477. As to the effect of a foreign judgment in rem, see Castrique v. Imrie, L. R. 4 H. L. 414. [m) The Grlefsivald, Swab. 430 ; Havelock v. Rockivood, 8 T. P. 268. (m) General Steam Navigatian Co. V. Gillou, 11 M. & W. 877, 894. See also The Griefswald, ubi supra. {o) The Delta, The Erminia Foxolo, 1 P. D. 393. FOREIGN J UlKiMKNT. 22o parties (p) ; or where tlio dofondant had never been summoned {(/) ; or was in defiance of tlie comity of nations, as wliore tlie foreign court refuses to recognise title acquired hy tlie law of England (/•) ; or if the foreign judgment wvas obtained by fraud (.s), — it is not a bar to an action in this coimtry, and in an action here the foreign judgment in such cases is not ad- missible in evidence (t). A judgment in jjersoiiam is, it seems, a bar to an action by the same plaintiff in rfm{u). A foreign judgment may be pleaded in bar, so long as it remains unreversed, and notwithstanding that an appeal is pending (./•) . T//e Cifi/ of Jlfcra, a British steamship, was in collision Foreign judg- on the high seas with a Portuguese ship. T/ic Cifij ofMcccn ^vhethcrit'can was arrested in Portugal and found by the Portuguese be enforced . . by arrest of Com-t to be in fault for the collision. Owing to some ship here, irregularity in the proceedings she was released from arrest by the Portuguese authorities, and came to England, the foreign judgment remaining unsatisfied. She was an-ested in England by the plaintiffs in the Portuguese action ; and it was held by Sir E. Phillimore that international comity required that the English Admiralty Com-t should enforce the decree of the Portuguese Court (//). In the Com-t of Appeal it appeared, for the first time, that the Portuguese action was in pevnonam and not in ron ; and it was held, in consequence, that the foreign judgment, not having created (p) Prkr V. Dm- /ill rat, 8 Sim. /leimc; 10 Q. B. D. 29o \ Vaialaw. 279. Laurs, 25 Q. B. D. 310. {q) Ferfiiison v. .Vulwii, 11 Ad. {t) Ca^triqiic v. Imrie, L. R. 4 & El. 179; liuchinian v. Ruch-r, 9 H. L. 414, 427. East, 192: S.C, 1 Campb. 63; («) The Grief s,rald.?>vf. A'iO;\)\\i Cavan v. Stewart, 1 Stark. 525. see infra, pp. 308, 317. (>•) Simpson V. Foffo, 1 J. it II. (.r) Castnqiie v. Be/irens, 30 L. J. 18; 1 H. i: M. 195. Q. B. 103; Mmiro v. rUkingtou, (.v) Foote's Prix ate International 31 L. J. Q. B. 163. Lavs-, 476; Godurd v. Gni,/, L. K. (y) 5 P. D. 28. Q. B. 139; Abonhff \. Oppen- M. a 22G FOREIGN SHIPS FOREIGN l.AW — FOREIGN JUDGMENTS. Criminal liability of foreigner. a maritime lien, the vessel bad been wrongly arrested in tbe Admiralty ai^tion in tbis country (~). The criminal liability in tbe courts of tbis country of a foreigner, in respect of a collision wbereby a Britisb subject or a foreigner is killed or injured, is considered in anotber cbapter {infm, p. 299). CP. D. lOG. ( ^-^-^^ ) riFAPTEIl X. CO.Ml'l LSOllY riLOTAGE. A riLOT wlioin tlie (jwiier or master of a ship voluntarily Pilot volun- employs to navigate the ship is the servant of the owner p^oygj^^j" tj^e for that purpose; the owner is answerable for a collision owner's ser- caused by his fault or negligence («), and his ship is liable in Admiralty. In some waters and under certain circumstances the law AUter where requires a ship to be placed in charge of, and na\'igated ,,1^,.^^°^^ by, a qualified or licensed pilot; and in such cases it is a <'hargebythe statutory offence {b) on the part of the owner or person in charge of the ship not io take a pilot on board. A pilot takon under these circumstances, called a " compulsory " pilot, is held to be placed in charge of the ship by the law, and to supersede the master in the conduct of the shii^ so long as she is in pilotage waters. He is not the servant or agent of the owner ; and for a collision caused entirely by his negligence neither is the owner answerable at law nor the ship in Admiralty. In such a case the remedy of the injured person is against the pilot alone (r). Pilotage is held to be compulsory, so as to exempt T\"hat consti- owners from liability for the acts of the pilot, in all British *"*"" "H^'^i" •^ i ' soiy pilotage. w^aters, and for all ships, in and for which the employment of the pilot is enforced by penalty {(I), or where the (a) See The Maria, IW. Rob. 95, [d) ILsually double the amount 108 ; 77ic Eden, 2 W. Eob. 44'2. of the pilotajrc charge, or in some (i) See note ( 1 on board tow T/ic JIari/ {ii) that a pilot in cliarge by compulsion ot law ignot "actin^r of a sliip ill tow is not acting in chargv of the tug within j^^^^^^^"^ °^" the meaning of this section. The precise effect of the statute is not clear. Probably Effect of 17 & IT-,. p ^1 1 / \ rpi 1 18Vict.C.104, it is merely declaratory of the common law (o). llie law g 338. as to the non-liabilit}^ of the ship in Admiralty for damage by a compulsory pilot was for some time doubtful (p). The statutory exemption from liability may have had reference to this doubt. In T//c Maria (q) Dr. Lushington said, " The leading principle of the Legislature in ex- onerating owners fi'om anj^ liability for damage occasioned by their vessels having pilots on board is this: that the masters are compellable to take pilots on board, and the owners are not responsible for the acts of the persons to whom they are thus forced to commit the management of their property, and over whom they have no control. This, (/) T/ic Maria, 1 W. Rob. 95 ; 'Jhr JMlcy, L. R. 2 P. C. 193; The ^liDiapu/is and T/ic Johanna titoll, Lusli. 29'). (/«) This enactiueut applies to the United Kinj>-doni only : see a. 330. The Civil Code of St. Lucia (Art. 22G8) is to the same effect. For previous (British) leirislation, see o2 Geo. .3, c. 39, s. 30; Jiitchic V. Boii-l,/, 7 1 aunt. 309 ; Geo. 1. c. 12.'), s. ■)■'). (h) .5 P. i). 14 ; and see The Clan Gordon, 7 P. D. 190, infra, p. 233, as to the meaning of " any person having the care of any ship in a local Act. {o) See per Brett, M. R., The motor, 8 P. D. 218, 224; General iS/cam Xavif/ation Co. v. British and Colonial Steam Xaiit/ation Co., L. R. 4 Ex. 238. ( /)) Lot-(/rid{/e v. Dorrille, 5 B. & Aid. 117 0821). {,,) 1 W. Rob. 9o, 99. 2o0 ( OMl'l J.SORY riixn'AGE. I appreliend, is a rule founded upon a great principle of justice and equity" (>•). Owner's These remarks were made in a case decided under a fmzuSitj previous pilot Act, 6 G-eo. IV. c. 125, s. 55. The pro- under 6 Geo. visions of that Act (wliich is now repealed) with regard to larger than the uon-liability of the shipowner for a collision occurring under 17 & IS -^J^ilst a compulsorv pilot was on hoard his ship, were Vict. c. 104. .J- . ^ p f. 1 A i different in terms and in effect from those of the Act now in force. One difference between the earlier Act and 17 & 18 Yict. c. 104, s. 388, is pointed out by Lord Eomilly, M. R., delivering the decision of the Privy Council in Tlie ' Lion (s). The exemption of owners from liability created by the earlier Act extends to cases where a licensed pilot is acting in charge of the ship under the provisions of the Act, whether by compulsion of law or by the shipowner's appointment [t). The later statute, 17 & 18 Vict. c. 104, s. 388, applies only where the pilot is in charge by com- pulsion of law. But the remarks of Dr. Lushiugton in TJie 3I(iri((, cited above, as regards the principle of the statutory exemjotion of owners from liability for the acts of a compulsory pilot, are not less applicable to the existing enactment than they were to the Act of Greorge IV. A further difference between the earlier Act and the existing Act is that under the earlier Acts the exemption was only where the pilot acted " under or in pursuance of" the Act. These words gave rise to questions as to what pilotage districts were referred to (u) . Foreig-n ships. The enactments as to compulsory pilotage are binding upon foreign as well as British ships {.r). {)•) See also the judgment in The //am, 4 M. & S. 77 ; Dodds v. Bilbao, Lush. 149, 1.54, to the same Jimblelon, 9 Dow. & Ry. 27; 2't/ne eifect. Iiiipvovemcnt Cointnissionersv. General (,v) L. R. 2 P. C. 525, 533. Htcam Navirjaiion (k,., L. R. 2 Q. B. {t) See Lucey v. Imjram, G M. & 65 ; Bcilhi/ v. Scott, 7 M. & W. W. 302 ; The Fama, 2 W. Rob. 93 ; The Eden, 10 Jur. 296 ; The 184. Agricola, 2 W. Rob. at pp. 19, 20. [ic)SeeAttorney-Generaly.Ca.ie,3 (x) The Annapolis, Lush. 295; Price, 802 ; Carruthcru v. Sidehot- and see mpra, p. 218. pilot's AI^THORIIY AliROAl). 231 The principle of non-liability of owners for a collision Compulsory caused by the ne^-ligenco of a compulsory pilot has been f^Ji-ei.i^ applied even in the case of a collision in the territorial waters. Avators of a country (//) by the law of which owiiers are expressly made liable for the neg-ligence of a compidsory pilot (~) . Whether the compulsion is by the law of this country, or by the law of the place where the collision occiu's, the o-wner is, in the courts of this country, equally free from liability («). In the Suez Canal local regulations having the force Pilotage in of law oblige the shipowner to take on board and pay a Canal. charge for a " pilot." The legal position of the Suez Canal pilot is different from that of a pilot in this country. His duty is not to take charge of the ship, but to advise the master as to the navigation of the canal. The respon- sibility of the owner is expressly reserved by the local regulations, and for a collision Avhich occurs when the pilot is on board, and caused by his negligence, the owners are liable {b) . A collision between T/ic Wucitoii Hall and The Uutj The Umj Manner in fj was caused by the bad navigation of The Giii/ """^''^"ff- Mannci-'uKj while slio had on board one of the company's pilots in pursuance of Art. 4. The fault on the part of The Guy Manncrhxj Avas that her engines were not moved astern soon enough to prevent her coming into contact wdtli the stern of The IVinsfon Hall, which -svas passing through the canal ahead of her, and had stopped to enable a tlurd vessel to pass. The master of The Guy JIannering, before the collision, informed the pilot, who appears to {i/) As to the pilotairc laws of not liable for a collision in British some foreign countries and British waters caused by thi' fault of a colonies, see note at foot of this compulsory pilot, chapter. («) 'The Hibernian, L. R. 4 P. C. (.-) Thfi JUlley, L. R. 2 P. C. r>ll ; The Fterless, Lush. 30; The 193. See also Smith v. (.'oiidr;/, 1 llallcy, nhi supra. How. '2S, in wliich it was held by {It) The (Jioj Manneriiig, 7 P. D. the Supreme Court of the United 52, 132. States that an Amei'ican ship was 232 COMPULSORY riLOTAGE. have been couducting the navigation of the ship, that his vessel was approaching too close to The Winston Hall, and suggested, more tlian once, that her engines, which had ah-eady been stopped, should be moved astern. The pilot refused to give the order, whereupon the master himself gave the order to move the engines astern, but too late to avoid the collision. Upon these facts it was held by the Court of Appeal that the owners of The Guy Mannering were liable for the injmy done to The Winston Hall{e). The decision was based upon the ground that by the law of the country in which the collision occurred the pilot w^as on board merely to advise the master in matters requiring local knowledge ; that the master and not the pilot had the command and charge of the vessel, and was responsible for her navigation. InFrauce; on There are similar decisions with reference to the ship- owner's liability for collision caused by pilots m Jj ranee (Havre) {d) and on the Danube {<•) . Damage to By the Thames Conservancy Act, 1857 (_/'), it is enacted Thames Con- that owners of vesscls navigating the Thames shall be servancy hy i^j^t^Iq fQP damaR-e to property of the Conservators caused compnLsory o i x ./ pilot. by persons belonging to or etoployed in their vessels. It has been held that this Act does not affect sect. 388 of the Merchant Shipping Act, 1854, and that the owners of a vessel in the Thames in charge of a compulsory pilot are not liable for damage done by the fault of the pilot to a vessel or other property belonging to the Conservators {g) . Damage to Althougli the shipowner is, under the Harbours, Docks, harbour works and Piers Clauses Act, 1847, liable for damage to a pier caused by ^^ harbour works, even when such damage is caused by comjiulsory ^ . ° "^ pilot. his ship when in the possession and control of persons for whose acts he would not be responsible at law, it is (^•) The Gini ManHcrimj, 7 P. D. (/) 20 & "il Vict. c. 147 (local), 52; on app. ih'ul. 1.V2. s. 96. [d) The Auijtistd, G Asp. M. C. (y) Conservators of the liiver 58, 161. Thames v. JIaU, 3 Mar. Law Cas. [e) The A(jnes Otto, 12 T. D. ofi. 0. S. 73. SrKf:iAL CASKS. 233 expressly provided tliat lio shall not be liable under the Act when his ship is in charge of a compulsory pilot (a). A local Act (The New lirighton Tier Act, 1•), a decision under the same (Liverpool) Act. A vessel came out of dock in charge of a compulsory pilot, intending to go to sea the next day. She was brought up in the river, and during the night an accident happened to her main- yard, Avhich it became necessary to repair before she went to sea. The next day a collision occurred. It was held that the ship was not proceeding to sea within the mean- ing of the Act, and that the owners were liable notwith- standing the presence of the pilot on board. Where pilotage is compulsory for an inAvard-bound shi}), Change of it does not cease to be compulsory by reason of a change P ° "• of pilots during the jiilotage and before the vessel arrives at her destination. Thus where a vessel inward bound to the Prince's Dock, Hull, took a pilot on board at sea, by whom she was brought up the river to the Island Pier, and then was placed in charge of another licensed pilot, by whose fault a collision occurred in the Humber Dock, it Avas hold that th(^ owners wore not liable («). (17) The Citi/ of Cambridtje, Jl'uuil under tliis. Vet, ssee below, p. 2G9. V. Smith, L.'R. 4 A. k E. 161 : [>■) 7 P. D. 217. ibid. 5 P. C. 451 ; The Friiireloii, 3 (.s) T/ie lix/borgs Blinde, 8 P. D. P. D. 90; The Montreal, 1 Sp. lo4, 132. In The ChaUeiige, Ad. Div. note. These deeisions were under Kith Dee. 1887, Butt, J., was of the local Act. For other decisions opinion that a sea pilot takini; his 230 COMPULSORY riLOTAGE, Failure to Ktaud liy "when the ship is iu cluirg'e nf ;i compulsury pilot. Fault of com- pulsory pilot .■iffects the ship for certain purposes. Collisiou ■whilst pilot below. Proof re- quired that the negli- gence causing the loss was thenegligeiico of the pilot. In every case of collision it is the duty of the master of each ship to " stand by" and assist the other ; and not tlie less so because at tlie time of the collision his ship is in charge of a compulsory pilot. The law is express that, if he fails to do so, his ship " shall be deemed to be in fault." But, notwithstanding the terms of the statute, it seems that the owners would not be liable for the collision, if it were, in fact, caused entirely by the compulsory pilot {t). The owner of a ship which by the fault of her compul- sory pilot damages another, and, at the same time, receives injury herself, may recover half his loss from the other ship, if she is also in fault. But the fault of the pilot so far affects him that he cannot recover more than half his loss in such a case {h). And, where the other ship is also in fault, it is the rule of the Admiralty Division, and of the Court of Appeal, not to give costs to either side (j"). Where a collision occurred when the pilot was unavoid- ably below for a few minutes, after he had given the course, and left the deck in charge of one of the ship's officers, it was held that the owners were liable for a colli- sion for which the ship was in fault {//) . Where a pi-'uiid fdcic case of negligence is established against a ship, to make tlie defence of " compulsory pilot" good, it must eitlier be proved affirmatively that the negligence causing the collision was the negligence of the }>ilot (;:) ; or there must be proof of circumstances from which the Court will infer negligence on tlie part of the ship to a buoy iu the i-iver (Thames), aboVe the point at which he would usually have handed her over to the river pilot, was "compulsory" up to the buoy. (0 See The (Jiieen, L. R. 2 A. & E. 3o4. This case was decided under 25 & 26 Vict. c. C3, s. 33. Tlie deci.^ion would, it is submitted, be the same in a similar case under the present Act, 36 & 37 Vict. c. 8.5, 8. 16 ; see supra, p. 60. [u) See The Hector, 8 V. D. 218 ; Dudmau v. Di(bHn Port, iS;c. Board, Ir. Rep. 7 C. L. 518; see also Hpaujhl V. TcdcttHtle, C App. Cas. 217; The Encrcjij, L. R. 3 A. & E. 48. (i-) The Eighorgs Minde, 8 P. D. 132, 136. {!/) The Mobile, Swab. Adm. 69 ; on app. ibid. 127. As to the duty of the master to be on deck, see T/ie Obey, L. R. 1 A. & E. 102. {z) Clyde Navigation Co. v. Bar' clay, 1 App. Cas. 790. VARlOrs ^ASKS. 237 pilot. Where ;l collision was caused by the helm being improperly put to starboard, it was in one case held that, to relieve the owners from liability, it must be proved that the order to put the helm to starboard was given by the pilot (a). But it would seem tliut where the pilot is in charge, express proof of tlie order, which caused the colli- sion, having been given by the pilot would not in all cases be necessary {b). In 77tc Carrier Dove (c), a ship in the Mersey was getting her anchor in heavy weatlior with the assistance of a tug ahead. She was struck by a squall, and driven on a ship at anchor. It was held by the Privy Council that the state of the weather and other circumstances made it imprudent and dangerous for her to get under way. The ship was in charge of a compulsory pilot ; but, in the absence of proof that she was got under way by his orders, the owners were held liable. Where a ship in tow ran into and damaged a pier in the Thames in consequence of the tug, without orders from the compulsory pilot in charge of tlie tow, improperly altering her com-se, it was held that the tow was liable ((/). A vessel was being towed from one dock to another at night when it was imprudent for her to be under way. The owners were held liable, notwithstanding the presence on boai'd of a licensed pilot. It was said by the Comi that the ease differed from that of a ship in tow in broad daylight, when the tug is bound to obey the orders of the pilot {c). It is only where the collision is caused entirely by the Owners liable fault of the pilot that owners are exempt from liability. ue^iicreiiceVu If any fault or negligence on the part of the owners, or t^'' part of the ship's crew or officers. {a) The Sclnvalbe, Lush. 239. Court considered the pilotage com- {b) The Whiston, 8 P. D. 176. pulsory. From The Maria, L. R. (<■) Brown i: Lush. 113. 1 A. cV: E. 358, it seems that under \d) The iiiiiqitasi, 5 P. D. 211. the local Act the eniploymeut of (<•) The Jhriissia, Swab. Adni. the pilot "was not compidsory. 94. It is not clear whether the 238 COMPULSOKV PII.OIACIE. on the part of their agents, or the officers or crew of the ship, has contributed to the loss, they, as well as the pilot, are responsible (_/'). And the owners are responsible for the whole of the loss, though it was caused in part by tlie fault of the pilot [g) . Burden of There has been some confusion as to the burden of proof proof as to . i i i i i j j.i j negligence. m such cases ; and until recently the law has been unsettled. It was at one time held that where a compulsory pilot was in charge, or even on board, the owners were prima facie exempted from liability (/^). Then it was held that, in order to make good their claim to exemption, the owners must prove, not only that the collision was caused by the pilot's fault, but that there was no contributory negligence on the part of the crew (?'). It is now settled that the owners are not required to prove absence of contributory negligence, but that, under certain circumstances, it will be presumed. If the defendant owners prove fault on the part of the j)ilot sufficient to cause, and in fact causing, the collision, in the absence of proof by the plaintiffs of con- tributory negligence on the part of the crew, it is held that the defendants have satisfied the condition upon which their exemjition depends, and they will not be called on to adduce further proof of a negative character to exclude the mere possibility of contributory fault. But if it appears that the owners, or their servants, have committed acts, or been guilty of omissions, which might liave contributed to the collision, then it lies on them to prove that those acts or omissions did not in any degree contribute to the collision. These points were decided in C/i/dc Navigation Co. v. Barclay [j), the effect of which case is thus stated by Lord (/) Thr Mobile, Swab.Adm. 127; Christiana, 2 Has". Ad. 183. The Diana, 1 W. Kob. 131 ; 4 Moo. [i) The lona, L. K. 1 P. C. 426 ; P. 0. C. 11. and see The Velasquez, L. R. 1 P. {g) See The Diana, Stuart v. Ise- C. 494 (a case of doubtful autho- monqer, 4 Moo. P. C. C. 11. rity). (ji) The Vernon, 1 W. Rob. 316; {j) 1 App. Cas. 790. In this Jiennet v. Jlfoifa, 7 Taunt. 258 ; The case the rule laid down in Tlielona, r.ruDiN oi' I'liooF. 'S')9 Esher, M. li. : — '' It amouiils, iu my o})iuiou, to this — that where the pUiiiitiff.s make a prima facie case, and th(! answer is that tlie defendants are exempt from liability- on the ground of compulsory pilotage, and tliey give evi- dence whicli prima facie proves that the accident was the fault of a pilot who was on board by compulsion of law, the biu'den of proof is tlion shifted back on to the plain- tiffs if they allege tliat tlu^ defendants are guilt}' of some other act of negligence. This seems to be the moaning of that case. It does not alter the general and long accepted rules as to the burden of proof . . ." (/.•). The principle as to tlu^ burden of proof in these cases is clear. The plaintiff, in order to recover damages, must prove fault on the part of those on board the defendant ship for which her owners are liable. Prima facie the owners are liable for the fault of those in charge of their ship ; but they are not liable for the fault of a compulsor}' pilot. Upon proof, therefore, by the defendants that their ship was in charge of a compulsory pilot, their prima facie liability is rebutted. To enable the plaintiffs to recover in such a case, fui-ther proof is necessary on their part that the collision was caused partly by negligence of persons on board the defendant ship, for whose negligence her owners are liable. In the absence of evidence upon the jjoint, sucli contributory or additional negligence will not be inferred (/). Where the party relying upon the defence of conipulsor}- Course to ha j)ilotage is imwilling to call the pilot as a witness, the party^relyin^^ proper course appears to be for him to subpoena the pilot "po» dcfeure T T • T 1 J 1 -T T -ii •! of coiiip\il^ory to produce his licence, and to bo provided with evidence pilot is uu- from the licensing authority identifying him as the person "^^^li^J? ^o call to whom the licence produced was granted, and with witness. L. R. 1 P. C. 426, was dissented Ad. 17 : The Indm, 12 P. D. 4G. from ; the former case was followed (/) J'lr Lord Esher, M. R., Thr in Thr Jiaio:, [i Asix Mar. Law Lx/its, 12 P. D. 40, 49. Cas. 477: The Ma ruth on, 48 L. .1. {I) See The Winston, ii r.I>. 17G. 240 COMPl LSORY ]'ll.(/rAGE. Qualified pilot superseding unqualified pilot. Owners liable for fault of a waterman engaged at request of pilot. Exemption of owners in case of compulsory pilotage will not be ex- tended. e\ddence from the ship identifying him as the person who was in charge of her. The licence usually has to be renewed i)eriodically, and it must be proved that the licence produced had been renewed or was a valid licence at the date of the collision. The date of renewal appears upon the face of a Trinity House licence. A qualified pilot is empowered by law, in pilotage waters, to supersede an unqualified pilot who is acting in charge of a ship, whether the ship is subject to compulsory pilotage or not {m), and whether at the place where he meets her pilotage is compulsory or not(>?). It has not been decided whether the owners are liable for a collision caused by the fault of a qualified pilot, who has superseded an unqualified pilot, under such circumstances. The statu- tor}' exemption (o) probably does not apply to such a case ; but, apart from the statute, it seems doubtful Avhether owners could be held liable for the acts of a pilot who takes charge of their ship under the authority of the law, not by their choice or as their servant. Where the master of a French ship in the Thames, at the pilot's request, engaged a waterman to take the helm, and a collision occurred by the fault of the waterman in not carrying out tlie pilot's orders, it was held that the waterman was in the employment of the owners, and that they were liable (p). The rule that owners are not liable for damage done by their ship when in charge of a compulsory pilot, and by his fault, has been said to take away a remedy from the sufferer, and the Courts have shown some unwillingness in applying it (q). A defendant who succeeds only upon (w) 17 & 18 Vict. c. 104. _s. ;!60. It seems that the nifister of a tug employed to tow onlj% and not to pilot the ship, could not be super- seded by a qualified pilot under the former Act : see Bcilln/ v. Scott, 7 M. & W. 03, decided under C Geo. 4, c. 125. [n) .52 & 53 Vict. c. G8, s. 5. (o) 17 & 18 Viet. c. 104, s. 388. Ip) The General de Cain, Swab. Ad. 0. [q] In The IMleii. L. R. 2 A. & E. 3, 15, Sir R. Phillimore said that the law, by which owners of a wrong-doing ship are not liable for SHIPOWNERS LIAIUI.ITY IN VARIOUS CASES. 241 the defence of compulsory pilotage is required in some cases to bear his own costs (r). In a case (s) before tlie House of Lords the quos- WlHtlur fault tion was raised, but not decided, wliether the owner of a pHot is con- ship in tow and in char^o of a compulsory pilot is pre- ^"butory vented by the doctrine of contributory negligence from such as to recovering from the owners of the tug for damage to the o^ore from tow, caused partly by the fault of the pilot in charge of the recoveriug. tow, and partly by the fault of those in charge of the tug. It would seem that in such a case the negligence of the pilot, being that of a person for whose acts the owners are not responsible, is immaterial, and cannot prejudice the right of the shipowners to recover against the wrong- doer {t). The effect of the rule as to the non-liability of the ship- Liability owners for a collision caused by the fault of a compulsory under orders pilot, in the case of a collision between a tug or her tow of comimlsory and a third ship, is considered in another chapter (u). It of tow. "^ ^^° will be sufficient here to state that for a collision between the tow and a third ship, caused entirely by the fault of a compulsory pilot on board and in charge of the tow, the tow and her owners are free from liability (,r) . As regards a collision between the tug and a third ship, where the tow is in charge of a compulsory pilot, the law is not so clear. The general rule being, that those on board the tug are by the terms of the towage contract bound to obey the orders of the person in charge of the tow, it would seem that neither the tug nor the tow, nor the owners of either the fault of a compulsory pilot, is "fruitful in injustice"; but see the observations of the L.JJ., S. C. on app., L. R. 2 P. C. 193. Tho question rather is as to the justice of tho law which makes one man liable for the fault of another man. (/•) Sec below, p. 331. (.v) Spaight v. Teckastle, 6 App. Cas. 217. {t) See per Lord Blackburn, G M. App. Cas. 217, 222 ; questioning the decision in The Encrgt/, L. R. 3 A. & E. 48. See also The Hector, 8 P. D. 218, supra, p. 142. («) Supra, p. 193. (.r) The Ocean Wave, L. R. 3 P. C. 205. The law is the same as regards damage by a ship in tow to a pier or harbour works ; see 10 & 11 Vict. c. 17, s. 74, supra, p. 73. R 242 COMPULSORY PILOTAGE. Wliether as between tug and tow com- pulsory pilot's negligence may be con- tributory. Owners liable for deficiency of ship or equipment. of them, should be liable for a collision between the tug or the tow and a third ship caused by those on board either the tug or the tow carrying out an improper order given by a compulsory pilot in charge of the tow. But it has been held in Admu-alty that the tug is liable in such a case (//). And a ship in tow has been held liable for damage caused by her striking a pier in consequence of an improper alteration in the course of the tug made with- out orders from the com})ulsory pilot in charge of the tow, but under circumstances which required her to act without waiting for orders from the tow (z). In the case {a) in the House of Lords cited above, it seems to have been the opinion of Lords Selborne and Blackburn that the owners of a ship in tow and in charge of a com- pulsory pilot would not be prevented from recovering from the tug and her owners damages for injuries sustained by the tow in consequence of negligence on the part of those on board the tug, and also on the part of the pilot ; in other words, that the negligence of the pilot was not contributory negligence such as to prevent their recovering damages against the tug and her owners. If, through the owner's negligence, a ship is deficient in hull or equipment, and a collision occurs in conse- quence, her owners are liable although tlieir ship is in charge of a compulsory pilot {b). Thus, owners have been held liable for the insufficiency of ground tackle (c). So if the vessel does not carry the proper lights (c/), or will not steer (e), or if the crew is insufficient or incapable (/), (y) The Mary, 5 P. D. 14; supra, p. 189. (z) The Slnquasi, 5 P. D. 241 ; supra, p. 187. (a) Spaiijht V. Tedcaslle, 6 App. Cas. 217, supra, p. 241. Cf. The Bernina, 13 App. Cas. 1. [b) The Christiana, Hammond v. Rogers, 7 Moo. P. C. C. 160 ; infra, p. 244. {c) The Massachusetts, 1 W. Rob. 371. [d) The liipon, 10 P. D. 65. (e) The Livia, 1 Asp. Mar. Law Cas. 204 ; The Terxi, 1 Pritch. Ad. Dig. 3rd ed. p. 1412 ; The Wark- worth, 9 P. D. 20, 145. (/) The General de Caen, Swab. Ad. 9 ; The Hope, 1 W. Eob. 154 ; and see below, p. 246. DEFECTIVE SHir OR EQUIPMENT. 243 or if the tiig employed by tlie master is not of sufficient power {(j), " compulsory pilotage " would be no defence. But it is not necessary that the ship sliould be perfect in every respect, provided that, witli ordinary care, she can be navigated with safety to other vessels. Wliere a vessel in collision with another was not in the best of trim, it was argued that the owners were liable, although she was in charge of a compulsory pilot. It was held by Dr. Lushington that the owners were relieved from lia- bility {h). He said : " If she was in ordinary safe trim, then, although she might be in handier trim, and although the trim of the ship in fact contributed to the collision, they (the owners) are not responsible." In a case in Ireland where the vessel was unhandy owing to her being too much down by the stern, the owners were held liable, for that reason, and also, it seems, on the ground that the pilot was not informed of the state of the ship's trim (/). Having regard to the rule of law which throws the lia- Relative bility for a collision caused wholly or in part by the fault authority and of the master or crew upon the shipowner, and that for a duties of collision caused wholly by the fault of the pilot upon the pilot. pilot alone, it is of importance that their respective duties should be clearly defined. The primary rule is that the pilot supersedes the master in all matters connected with the command and navigation of the ship. His authority is supreme, his orders must be implicitly obeyed, and any negligence in carrying them out, or interference with liim in his duties, will make the owners liable in case of colli- sion. " The duties of the master and the pilot are in many respects clearly defined. Although the pilot has charge of the ship, the owners are most clearly responsible to third persons for the sufficiency of the ship and her equipments, the competency of the master and crew, and {g) The Ocean Wave, Marshall v. The Julia, Lush. 224. Moran, L. R. 3 P. C. 205 ; The {h) The Argo, Swab. 462. Belgic, 2 P. D. 57, note ; and sec (t) The Meteor, Ir. R., 9 Eq. 567. k2 244 COMPULSORY PILOTAGE. their obedience to the orders of the pilot in everjrthing that concerns his duty ; and under ordinary circumstances we think that his commands are to be implicitly obeyed. To him belongs the whole conduct of the navigation of the ship, to the safety of which it is important that the chief direction should be vested in one only" (k). Pilot's duties. There have been numerous decisions as to what are matters connected with the navigation of the ship to which it is the duty of the pilot to attend. It has been held to be the duty of the pilot in bad weather to decide whether to get imder way or to lay fast (/) ; to decide upon the time, place, and manner of turning a ship before going into dock (m) ; to give orders as to setting or taking in head sail when turning a ship in the river (;/) ; to regulate the ship's course and speed by check ropes and warps when docking (o). It is the exclusive duty of the pilot to give the orders to the helm {p) ; to decide whether to comply with the statutory rule of the road or not {q) ; to decide upon the proper time and place of bringing up (r) ; and as to the proper mode of carrying the anchor, before letting go (s) ; to see that the ship rides with a proper scope of cable out ; to tend her whilst swinging ; to let go a second anchor if necessary ; to manoeuvre her if she parts from her anchor (t) ; and to shift his berth when (k) Per Parke, P., in The Chris- [n) The Ocean Wave, tibi supra, tiana, Hammond v. Rogers, 7 Moo. (o) The Rigborgs Minde, 8 P. D. P. C. C. 160, 171 ; approved in The 132 ; but see The Cynthia, 2 P D. City of Cambridge, Wood v. 6'mith, 52 ; infra, p. 249. L. R. 5 P. C. 451, 457. {p) The Schwalbe, Lusli. 239 ; (/) The Carrier Love, Br. & Lush. The Winston, 8 P. D. 176 ; 9 P. D. 85. 113 ; The Lochlibo, 7 Moo. P. C. C. (7) The Argo, Swab. 462. , 427. There appears to be some (r) The Agricolo, 2 W. Rob. 10 ; doubt whether it is the exclusive The George, 4 Not. of Cas. 161 ; duty of the pilot to decide whether The Christiana, 7 Moo. P. C.C. 160, to get under way in bad weather or 172 ; The Lochlibo, ibid. 427 ; 3 W. not ; see The Girolamo, 3 Hag. 169 ; Rob. 310; The Rhosina, 10 P.D. 131. The Borussia, Swab. 94 ; The Ocean (.v) The Gipscy King, 2 W. Rob. Wave, L. R. 3 P. C. 205, 209 ; The 537 ; The Rigborgs Minde, 8 P. D. Oahfeld, 11 P. D. 34; and see 132, 136; but see infra, p. 246, as infra, pp. 245, 250, 255. to the duty of the ci-ew to see that {m) The Ocean Wave, L. R. 3 P. the anchor is clear. C. 205. (0 The City of Cambridge, Wood DTTIES OF THE IMI-OT. circumstaTices occur which make it necessary in order to avoid collision {u). He decides as to the rate of speed, and tlio canvas to carry (x) ; wliether to run througli a crowded roadstead at night or to bring up {■//). "Wlien brouglit up ho must keep an eye on the weather, and be ready for a change without relying entirely upon the look- out for a report (z) . It is for the pilot to decide upon the time, place, and manner of tiu'ning a ship, when docking (a). The omission to set some head sail, to help the ship round, was held by the Privy Council to be the fault of the pilot, and not of the master or crew {b). If a tug is in attendance and the safety of the ship requires it, it is the duty of the pilot to employ the tug (c) . And it seems that the pilot is respon- sible if the ship is got under way in weather when it is imjirudent to move (d). This however is not clear, for, in some cases, it has been said that the master is responsible for being under way in improper weather (f). "There might be such a fog as to make it a fault on (the master's) part to allow his vessel to be moved. If there was a clear and i^lain prospect of danger the master could not throw the whole blame on the pilot if he order the vessel to get imder way " (/). Though the pilot, it seems, has no power to engage a tug, it is his duty, when the situation is critical and the safety of the ship requires it, to advise the master to do V. Smith, L. R. 5 P. C. 451 ; lyic {a) The Ocean Wave, Marshall v. Northampton, 1 Sp. E. & A. 152 ; Moran, L. R. 3 P. C. 205. The FrincetoH, 3 P. D. 90. {b) The Ocean Wave, iibi supra. («) A.s where he has notice that [c) The Peerless, 13 Moo. P. C. C. he is in the way of a launch : The 484 ; and see The Julia, Lush. 224. Cachapool, 7 P. D. 217. [d) The Carrier Bore, Br. & [x) The Calabar, L. R. 2 P. C. Lush. 113; The Lochlibo, 7 Moo. 238 ; The Maria, 1 W. lloh. 95, P. C. C. 427. 110; The Julia, Lush. 224; TItc {e) Sec 'The Ociaii Jl'arr, ubi supra ; JIatavicr, 1 Sp. E. & A. 378, 383; TheGirola»w,3Hi\g.Ad.\6d;iii/ra, 9 Moo. P. C. C. 286 ; The Lochlibo, p. 250 ; The Jiorussia, Swab. Ad. tibi supra. 94 ; and .see supra, p. 244. (v) The I^ochlibo, ubi supra. (/) Per Sir J. Hanneu, The Oak- (z) The Princeton, 3 P. D. 90. feld, 11 P. D. 34, 35. 245 246 COMPULSORY PILOTAGE. Duties of master and crew. 60 {(J) . Wlien a tug is engaged it is Ms exclusive duty to give orders as to taking on board {h) and casting off {i) the tow-rope, and, under ordinary circumstances, to direct the coiu-se and regulate the speed of the tug as well as that of the ship in tow (/.•) . Although the pilot's authority is paramount, the master is not free from responsibility. In The Batavier {J),T)v. Lusliington said : " There are many cases in which I should hold that, notwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot ; but that there are certain duties he has to discharge, notwithstanding there is a pilot on board, for the benefit of the owners." The following are duties of the master and crew for which the owners are held resj^onsible, notwithstanding the presence on board of a compulsory pilot. The master and crew must keep a good look-out, and keep the pilot informed of the position, movements of, and possible danger to other ships {m) ; they must have the anchor clear, and ready to let go, when the pilot gives the order («) ; the master is responsible for the sufficiency and power of a tug employed for ordinary towage service (o), and for the employment of a tug where the assistance of a tug is necessary (^j) ; and although not bound to be always on deck {q), he is generally responsible for the [g) The Julia, Lush. 224. (/i) The Julia, uhi supra. \i) The Energy, L. R. 3 A. & E. 48 ; Sjmight v. Tedcastle, 6 App. Cas. 217 ; Clyde Navigation Co. v. Bar- clai/, 1 Ajjp. Cas. 790. (/.•) The Ocean Wave, L. R. 3 P. C. 205 ; The Julia, ubi supra ; The Energy, uhi supra. See, however, The iSinquasi, 5 P. D. 241 ; and see supra, p. 193. (/) 1 Sp. E. & A. 378, 383 ; S. C. on app. nom. Netherlands tSteamboat Co. V. styles, 9 Moo. P. C. C. 286. (;«) The Batavier, uhi supra ; The Liana, 1 W. Eob. 131 ; 4 Moo. P. C. C. 11 : The Velasquez, L. R. 1 P. C. 494 ; The Julia, Lush. 224 ; The Atlas, 2 W. Rob. 502 ; The Minna, L. R. 2 A. & E. 97 ; The Queen, ibid. 354 ; The Zona, L. R. 1 P. 0. 426. («) The Gmeral Farhhill and The Centurion, 1 Pritch. Ad. Dig. 172; and see The Beerless, 13 Moo. P. C. C. 484 ; The Righorgs Ilinde, 8 P. D. 132, 136 ; but see The Rhosina, 10 P. D. 24 ; ibid. p. 131. (o) The Ocean JFave, ubi supra. {})) The Julia, ubi supra. \q) Sec The Obey, L. R. 1 A. & E. 102; and see 'iSpaight v. Ted- castle, 6 App. Cas. 217, 226. DUTIES OF THE MASTER AND CREW, 247 ordinary work of tlie ship being properly carried on, and usual precautions being taken without express order from the pilot (/•). For the trim of the ship, and generally for her sufficiency as regards tackle and equipment for ordi- nary purposes of navigation, the owner or the master is responsible («). If the pilot is below, or for some other reason is not in charge of the deck at the time of collision, the owners would, it is conceived, be liable (/) . Wliere a ship is in tow of a tug, we have seen that, as a general rule, the tug is bound to obey the orders of the pilot in charge of the tow ; but in the absence of orders from the pilot, it is the duty of those in charge of the tug to keep clear of other ships, and for a collision between the tow and a third ship caused by an improper alteration in the course of the tug made without orders fi'om the pilot, the owners of the tow are Kable (ii). A tug in the Mersey got orders from the compulsory pilot in charge of the ship in tow to "slew the ship roimd" preparatory to docking. The tug executed the manoeuvre in an improper manner, by towing the ship across the bows and foul of anotlier at anchor. The owners of the sliip in tow were held liable (,r). A ship was in collision with another coming out of dock. The latter had not been reported by the look-out. It was held that the duty of the look-out being to watch for and rejiort vessels in the river, it was not negligence in them not to have reported the vessel in dock, and the vessel being in charge of a compulsory pilot, the owners were held free from liability (i/). A ship in chai"ge of a compulsory pilot, having been in (/■) TJie Christiana, infra; The {u) The Sinquasi, 5 F. D. 2il. Slnquasi, 5 P. D. 241 ; and see (.r) The Lockskij Hall, Ad. Div. cases cited infra, p. 246. 28th March, 1887. (s) Supra, p. 242. (y) The Calabar, L. R. 2 P. C. [t) Sec The Gordon, 18 Lower 238. Canada Jurist, 109. 248 COMPULSORY PILOTAGE. Not sending down yards in heavy weather. Owner liable for improper execution of pilot's orders. collision with another, drove foul of a third. It was held that the owners were liable in consequence of the negli- gence of the master and crew in the following particulars : in not veering out more chain to bring the ship up ; in not bending a line on to a tow-rope, so as to enable a tug, which came alongside the ship sued, to keep her clear of the other ship ; and in not getting sail on the ship (s). A ship in charge of a compidsory pilot was riding in the Downs in heavy weather, and drove from her anchors on board another ship. If some of her gear aloft had been sent down, she might have ridden in safety and escaped collision. It was held by the Privy Council that there was contributory negligence on the part of the master in not sending down the yards, and that the owners were liable. Parke, B., in delivering the judgment of the Court, said : — " The step being one which every master, according to ordinary rules of navigation, ought to have taken in every open roadstead, where many vessels were lying, and in blowing weather, that duty was not exclusively the pilot's, but that of the master also. And if the pilot had given express orders to the master not to send down top- masts, &c., we do not say that the owners might not have been excused from responsibility for the consequences of that omission " {fi). The owners are responsible for the pilot's orders being promptly and efficiently carried out. If the helm is not shifted {h), the anchor let go (c), the engines stoiiped(rf), or the tow-rope cast off (^^), promptly at the pilot's order, and a collision ensues, the owners are liable. It is the master's duty to repeat the pilot's orders (./'), and to see that they (z) The Annapolis and The Golden Light, Lush. 355. ia) The Christiana, Hammond v. Rogers, 7 Moo. P. C. C. 160, 173. (/;) The Lochlibo, 7 Moo. P. C. C. 427 ; The Julia, Lush. 224 ; The Indies, 12 P. D. 40, 48. ic) The Atlas, 2 W. Rob. 502; The Feerless, 13 Moo. P. C. C. 484 ; The liighorgs Mi>ide, 8 P. D. 132. [d) The Ripon, 6 Not. of Cas. 245. [e) The Energy, L. R. 3 A. & E. 48. {/) The Admiral Boxer, Swab. Ad. 193 ; The Lochlibo, 3 "W. Eob. 310, 328. INTERFERENCE WITH THE PILOT. 249 are carrietl out. If, in carrying tlicm out, ordinary pru- dence and seamanship require a particidar precaution to be taken, it will be held to be negligence in the master if the precaution is omitted. Tims, the omission to run out a warp or check lino when docking (^), or to cut a lanyard which holds two ships together when in collision (//), is held neg'lio'ence in the master or crew. In case of the pilot's intoxication or manifest incapacity, interference it is the duty of the master to take charge of the ship (/). ^^t™t^?pUot And if an emergency or sudden danger arises, when the pilot is not at hand, or which he does not foresee, the master would be justified in giving, and it seems that it would be his duty to give, an order necessary for the ship's safety (k). But interference with the pilot's duties is justified only by urgent necessity. "I have said on many occasions, and my ruling has been confirmed by the Judi- cial Committee in the case of IIammo)td v. liogers (/), that a master has no right to interfere with the pilot, except in cases of the j)ilot's intoxication or manifest incapacity, or in cases of danger which the pilot does not foresee, or in cases of great necessity" (w). Care must be taken not to interfere with the pilot unnecessarily ; for if a collision occurs in consequence of improper interference with the pilot, the owners \A\\ be liable. " It would be a most dangerous doctrine to hold, except under the most extra- ordinary circumstances, that the master could be justified in interfering with the pilot in his proper vocation. If the two authorities could so clash, the danger would be materially augmented, and the interests of the o^vner, {g) The Cynthia, 2 P. D. 52 ; see, The Lochlibo, Pollok v. McAIpin, ib. however, The Rigborgs Minde, 8 P. 427; The Hibernia, 4 Jiir. N. S. D. 132, where the duty to have a 1244. check line astern whilst warping [k) The City of Cambridge, Wood through a dock was held to lie on v. Smith, L. R. o P. C. 451, 459; the pilot. The Argo, Swab. Ad. 462. (A) The Massachusetts, 1 W. Rob. (/) The Christiana, 7 Moo. P. C. 371. C. 160, 171. (i) The Christiana, Hammond v. (;n) Per Dr. Lushington in The Rogers, 7 Moo. P. C. C. 100, 172 ; Argo, Swab. 462, 464. 250 COMPULSORY riLOTAGE. Whether master or pilot respon- sible for being under way in too dense fog. Navigating on ■wrong side of river. Suggestions to pilot. which are now protected by the general principles of law, and specific enactments, from liability for the acts of the pilot, would be most severely prejudiced" (w). In The GiroIamo{o), a ship, with a pilot on board, was under way in the Thames in a fog so dense that she could not proceed without danger to other craft. Sir J. Nicholl expressed an opinion that, under such circumstances, it was the .duty of the master to take the charge of the ship out of the pilot's hands, and to bring her up. In other cases, however, it has been doubted whether the master would be justified in exercising his own discretion in such a case ; and the better opinion seems to be that the pilot is alone responsible for bringing the ship up when necessary (/;) . It has been held that when the pilot was taking a ship on the wrong side of the river, in direct violation of the law, the master was not in fault for not interfering, and that he would not have been justified in doing so (q). In The Julia, Lord Kingsdown said that for a master to give to the man at the wheel a different order from that given by the pilot, while a tug was coming alongside to take the tow-line on board, was " misconduct in the master and disobedience to the orders of the pilot" (r). So, if the master, against the pilot's orders, takes on board and makes fast the tow-line, he and his employers, the shipowners, will be liable for a collision thereby occasioned («). It is not improper interference on the part of the master to make suggestions to the pilot or to offer him advice {t). And, in case of a manifest danger, it is the duty of the master to interfere to this extent. In a salvage case, where (w) Per Dr. Lushington in The Maria, 1 W. Rob. 95, 110. See also The Eibernia, 4 .Jur. N. S. 1244 ; The Peerless, Lush. 30; The Duke of Sussex, supra, p. 198, as to the danger of clashing authorities. (o) 3 Hag. Ad. 169. ( p) The North American and The Wild Rose, 2 Mar. Law Cas. 0. S. 319 ; The Lochlibo, 3 W. Rob. 310, 320 ; 7 Moo. P. C. C. 427 ; and see sujjra, p. 244. {q) The Argo, Swab. Ad. 462. But aliter as to lights ; The Eipon, 10 P. D. 65. (r) Lush. 224 ; and see The loch- libo, ubi supra. (s) The Julia, ubi supra. \t) The Lochlibo, ubi supra ; The Oakjield, 11 P. D. 34. DOCK OR HAUHOUR-MASTER IN CHARGE. 251 a ship in cliargo of a pilot was in tow, and the course given to the tug by the pilot was clearly dangerous and wrong, Lord Campbell, in delivering the opinion of the Privy Council, said : " The master of the tug, watching the course the licensed pilot pursues, if he finds that this course will lead the vessel into danger, is bound to interfere and make a communication to the master of the ship, instead of making himself instrumental to the destruction of life and property" (^^). And we have seen that, under some cir- cumstances, it is the duty of the master of a tug towing a ship which is in charge of a pilot, to alter his coui'se for the purpose of keeping clear of other craft, without waiting for orders from the pilot (x). In The Lochlibo {>/), Dr. Lushington discusses at length the question, what amount of interference with the pilot in the performance of his duties will make the owners liable. An order given by the master or crew to the helm, and repeated mechanically by the pilot, amounts to "illegal interference ; " but mere suggestion to, or consultation with, the pilot is not interference. Even a wrong order to the helm suggested by the master, and adopted advisedly by the pilot, is not interference on the part of the master such as to make the shipowner liable (;:). Where there is any peculiarity of the ship which makes Duty of her difficult for a stranger to handle, it is clearly the duty fY^\f^ ^i t of the master to offer his experience and advice to a pilot of siiip's who is a stranger to her (a) . ^^^^ ^'^" ^^^' In many ports the harbour or dock-master has power. Dock or liar- by Act of Parliament, to regulate the movements, mooring, ^^ char-^e*^"^ and berthing of ships. When a vessel is acting under the orders of such a person her o-vvners are, as regards liabihty for damage done by her, in the same position as when she («) The Duke of Manchester, (y) 3 W. Eob. 310 ; affd. onapp. Shersby v. Hibbert, 5 Not. of Cas. 7 Moo. P. C. C. 427. 470, 476. (;) The Oakficld, 11 P. D. 34. (j) The Shiquasi, supra, p. 187. («) Cf. The Meteor, Ir. Rep. 9 Eq. 567 ; supra, p. 243. 252 COMPULSORY PILOTAGE. is in charge of a compulsoiy pilot ; the dock-master is not their servant, and they are not liable for damage caused by liis negligence {b) . Thus it was held that a ship, wliich was damaged by another falling over against her at low water, was not entitled to recover damages against the other, the latter having been berthed under the directions of the dock-master (c). But in a place where vessels are required to take up their berths under the orders of a harbour-master, if, with- out any directions from him, a ship takes up a berth at which she is afterwards injured by another properly berthed, she cannot recover against the latter (r/). If ordered to do so by the dock authorities, a ship must send down her yards ; and she must shift her berth, even after she has been properly moored by their order, and though she is safer where she is (e). If, in carrying out the orders of the dock-master, ordi- nary prudence would suggest that a particular precaution should be taken, a vessel neglecting to take that precau- tion will be held to be in fault. Thus when a ship was being moved under the orders of a dock-master, and negligently omitted to use a check rope, her owners were held liable for damage she did to other craft in conse- quence (/). A ship going out of dock under the orders of a dock- master was offered, and accepted, the services of the dock company's tug. Through want of power in the tug a collision occurred. The owners were held liable, there being no obligation upon them to accept the services of the tug, or on the company to supply one {(j) . Liability of "Wlietlicr the dock or harbour authority is liable for dock or {b) Cf. The New York Packet, 4 {e) The Excchior,'L.n.2 K. k'E. Low. Canada Rep. 343. 268. (c) The Econonvj, 1 Pritch. Ad. (/) The Cynthia, 2 P. D. 52; Dig. 3rd ed. 286 ; aud see The Bilbao, see also The Excelsior, L. E.. 2 A. & Lush. 149. E. 268. {d) The Jacob, 1 Pr. Ad. Dig. 3rd {g) The Belgic, 2 P. D. 57, note. ed. 286. KELATIVE POSITIONS OF MASTER AND PILOT. 253 injury done by a ship whilst in charge and acting under harbour the orders of the dock or harbour-master, has not been ""n'/'fy ' collision expressly decided. In a case before tlie Adraii-alty caused by Division (//), it was assumed that they would be liable for mastor'a the negligence of the harbom* -master ; and such would negligence, seem to be the law, provided the harbour-master is acting within the scope of his employment by the harbour autho- rity (0. It will be convenient here to consider a subject closely Position, connected with the law relatingj to compulsory pilotage ; roljjfo'nsii'ility namely, the position, duty, and liability of the master, "f master when a pilot is taken voluntarily and not by compulsion is on board, of law. In considering the shipowner's liability for colli- sion where pilotage is compidsory, we have seen that the law assigns certain duties to the master and others to the pilot ; and that, if the master interferes with the pilot in his own province, he does so at the risk of making his owner liable in case of collision. Now it is frequently the duty of a master to take a pilot (A-) in waters where there is no compulsion of law to do so, and questions have arisen as to the scope of the master's authority and duty when a pilot is on board under such circumstances, and as to his liability, not only in respect of damages for collision, but for other matters connected with the navigation of the ship. It is important, therefore, to consider whether the position and responsibilities of the master, as defined by the Admiralty Courts in cases relating to compidsory pilotage, where the question is as to the shipow^ner's lia- bility for coUision, agree with the practice of seamen, and whether they are recognized by other tribunals. There is reason to think that outside the law courts nautical opinion (h) See above, p. 100. Cas. 4th Ser. 406 ; iShaw, Savill, (t) See on this question Mersey and Albion Co. v. Timarii Harbour Dock Trusties v. Gibbs, L. R. 1 H. Board, lHATpip. Cas. 429; TheJpoUo, L. 93 ; Metcalfe v. Ilethcrbujlcn, 11 6 Asp. M. C. 356, -102. Ex. 257 ; H. & N. 719 ; Ilulman {k) See i»fra, p. 257. V. Irvine Harbour Trustees, 4 Sess. 254 COMPULSORY PILOTAGE. is by no means unanimous in assigning to the master the subordinate position in which he is placed by the Admi- ralty decisions. In H.M. First, as to the responsibilities of the captain in H.M. ^^" Navy. In Eegulations of H.M. Service at Sea of the last centuiy (/), is contained an article which provides that the pilot shall " have the sole charge and command of the ship ;" he is to give orders for navigating the ship, which the captain is to see carried out. The captain is to remove him from his command " if he judges him to behave so ill as to bring the ship into danger." This Regulation differs considerably from that now in force. The Eegulations of 1879, following the language of previous Regulations of 1806, 1808, 1833, and 1862, contain the following descrip- tion of the duties and responsibilities of the captain, navi- gating officer, and pilot : — Art. 940. "The captain is to order everj'thiiig that relates to the navigation of the ship to be performed as the pilot shall require ; but nevertheless he, 'and the navigating officer, are to attend particularly to his conduct ; and if from his own or the navigating officer's observations, he shall have reason to beHeve the pilot not quahfied to conduct the ship, or that he is running her into danger, the captain is to remove him from charge, and take aU necessary measures for the safety of the ship, noting the time of the pilot being so removed in the ship's log-book ; and if the ship be at any time damaged through the ignorance or negligence of the pilot when a common degree of attention on the part of the captain and navigating officer would have prevented the disaster, those officers wiU be deemed to have neglected their duty. This Article is equally applicable to the case of a ship in charge of a Queen's harbour-master or the master attendant of a dockyard." Under this article it is held by the Lords of the Admi- ralty that, if a ship gets ashore on a well-known sand in (/) For 1790 ; see MSS. in the Admiralty Libraiy at Whitehall. RELATIVE POSITIONS S OF MASTER AND PILOT. 255 consequence of an obviously wrong course given by the pilot, the captain is responsible. Thus in the case of The Vif/ilaiif, which got ashore on the Gunfleet Sand on the 22n(l of October, 1862, with a pilot on board, the captain and the master were severely censui'ed by the Lords of the Admiralty (w). The opinion of the Elder Brethren of the Trinity Opinion of House upon the respective duties of master and pilot is Brethren of as follows : — " That in well-conducted ships the master ^^^ Trinity does not regard the presence of a duly licensed pilot in compidsory pilot waters as freeing him from every obliga- tion to attend to the safety of the vessel ; but that, while the master sees that his officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to m-ge upon the pilot to use every precaution, but to insist upon such being taken." And they add, that this is the view generally taken by shipowners {n). The opinion of the Board of Trade as to the respon- Opinion of the sibility of the master is that "he is bound to exercise a Trade °^ vigilant supervision, and that though the advice of the pilot is of the greatest value, the master is not bound to follow it implicitly, if it appears in his deliberate judg- ment to involve danger to the ship." In accordance with this opinion, the Board of Trade holds that it rests with the master to decide whether in bad weather he will get under way for sea, and to say whether, under thi'eatening circumstances, he will proceed or turn back (o). The Legislatiu'e has not defined the duties of the pilot ; Tlic :Merchant but it assimies that it is the pilot's duty to conduct the Acts!^^"° (m) See Report, «S:c., of the Tin- Association, 4th Oct. 1873,Unsea- seaworthy Ships' Commission, 1874, worthy Ships' Commission, 1874, vol. 2, p. 528. vol. 2, p. 527. As to the view taken (n) Ibid. by the Admiraltj- Coxirt on this (o) See a letter from T. Gray, point, see above, p. 244. Esq., to the Mercantile Marine 256 COMPULSORY PILOTAGE. In the Suez Canal. Necessity for pilot as regards insurance. navigation of the ship. In the Merchant Shipping Act, 1854, he is spoken of as " having the conduct," "having command or charge," " having charge," " taking charge," and " acting in charge " of the ship (p). In the Suez Canal there is a fixed and compulsory charge for pilotage, but the pilot does not supersede the master in the command and conduct of the ship. He is on board only as the adviser of the master ; the respon- sibility as regards the navigation of the ship remains with the master. It is believed that the position of the pilot is the same in France and in Spain (q). If a vessel sails from a port where there is an establish- ment of pilots, and the character of the navigation requires one, it has been held that the warranty of seaworthiness in a policy of insurance is not complied with if a pilot is not taken (r). And, according to an early case {s), if a pilot taken on board in pursuance of the statute leaves the ship before the voyage is completed, the policy is vitiated. Lau- V. IloJIingworth has, however, been frequently doubted, and it is not clear upon what the judgment is founded. So far as it decides that underwriters are not liable for the master's negligence in not taking and retaining a pilot at a port other than that from which the ship sailed, it must be considered as overruled by later cases [t). There [p) See 88. 2, 359, 362, 388 ; and per Brett, L. J. The Guy Mcuiner- ing, 7 P. D. 132, 134. See also The Clan Gordon, 7 P. D. 190, where it ■was held that the words " any per- son having the care of " a ship did not refer to or properly describe a compulsory pilot. {q) See the Suez Canal Regu- lations of 1st July, 1878, infra, p. 572 ; The Guy Mannering, 7 P. D. 52, 132. The Spanish Com- mercial Code, Arts. 676, 691, 693, places the pilot in the position of adviser to the captain, reserving the ultimate responsibility of the captain. Thetenn_pi/6/!(/in Art. 693 seems to apply to the pilot (pilofo praclico) as well as to the mate or navigating officer. In America pilots of passenger ships have a special authority ; 10 Stat, at Large, ch. 66, s. 28. It was held recently, in The Augusta, 6 Asp. M. C. 58, 161, that in France (Havre) the pilot advises and does not supersede the master. {r) rhillips V. Headlam, 2 B. & Ad. 280. (*) Law V. Hollingsworth, 7 T. E. 160. [t) Dixoti V. Sadler, 5 M. & W. at p. 415. INSUKAN'CE MASTKK AM; i'lUlV. 257 is, however, authority to the effect that, where at different stages of th(i voyage a different equipment is required, the warranty of seaworthiness in a policy is not complied with unless the sliip is properly equipped at each stage (/<)• Possibly this principle might be applied to imseaworthiness due to the absence of a pilot. And it is apprehended that, although there be no insur- ance, it is the duty of the master to take a pilot if he is unacquainted with the locality, and the nature of the navigation is such that a prudent seaman would not attempt to navigate without one. As regards the master's responsibility for collision whilst Master's 1 • 1 • • 1-1 p -1 j_ • • 11 xi i. responsibility his ship IS properly m charge oi a pilot, it is seldom that for collision any question can arise. For a collision caused by the fault ^^^^^7"^*^*^ ^"' of the pilot the master is not answerable in damages (v). in respect of The numerous cases upon compulsory pilotage which have damages. defined the duties of the pilot on the one hand, and of the master and crew on the other, would seem to assign those duties to pilot, master, and crew, for all purposes, and not only for the purpose of determining the owner's liability for damages in case of collision. Thus, in a matter which, upon the question of the shipowner's liability for damages, is held to be within the pilot's province, it would seem that the master could not properly be held responsible in respect In respect of of his certificate at a Board of Trade enquiry. But this ^' certificate. has not always been the view taken by courts of enquiry. "With regard to the ship's speed, a court of enquiiy has held it to be a matter for which the master is responsible (x) ; while the Adnm-alty Court, we have seen, holds the pilot answerable for speed. As to taking a ship to sea in bad weather, courts of enquiry, and the Board of Trade, tlu'ow («) Quebec Marine Insurance Co. The Octavia Stella, 6 Aep. M. C. V. Commercial Bank of Canada, L. 182. R. 3 P. C. 240. See further The {x) In The Ostrich and The Ben- William, 6 C.Roh. ^16; The Forts- bow, Mitch. Mar. Reg. 1878, a mouth, ibid. p. 317; Lowndes, master was held in fault for the Insurance, 2nd ed. 96. ship's speed at a Board of Trade (i) See 3 Kent's Ctimm. § 176 ; en'3, comj)ulsory pilotage General was continued in all districts and for all ships (,/') in and ^^'^'^^^S^^ "^^*^- for which pilotage was compulsory on the 1st of May, 1855, tlie date of that Act coming into operation. The extent to which pilotage is compulsory under tlie general Act of 1854 can, therefore, be ascertained only by reference to the general and local Acts relating to pilotage in operation on the 1st of May, 1855. The general Act of that date was 6 Geo. TV. c. 125(/) was a decision upon this section. It was there held that a vessel putting into Dartmouth on a voyage from New York to Newcastle, and taking on board twenty tons of bimker coals to complete her voyage, was subject to com})ulsory pilotage, and therefore was not liable for a collision which occurred by the fault of the pilot in charge of her as she was leaving the harbour. The word " loading " did not, it was held, refer to cargo alone. British or foreign (s) ships, of which the master or mate Masters' and has a pilotage certificate in accordance with the Merchant ™'^^'^'*' P^i"*' /■ o age certin- Shipping Acts, are exempt {a). cates. By the Customs Consolidation Act, 1876 [h), it is pro- Differential vided that no foreign ship on a voyage from any place in P^*^*'^o'^ "^^^^^s- the United Kingdom or the Channel Islands to any other such place shall be subject to any higher or other pilotage charge, or to any other rules as to the employment of pilots, than a British ship in tlie like case. The policy of the law, which seems formerly to have Poiicy of the inclined towards comiiulsory pilotage for the supposed layofcom- benefit of commerce and safety of seamen's lives (c), is inlotagc. {x) Sees?n, see The Killctnici/, iibi xupra ; («) See The KiUariicu,lMA\.-Vr,, IkUhy v. Rape; 3 B. & Ad. 284; 436. J)ock Compani/ of Hull v. Browne, 1 B. ic Ad. 43.' 268 COMPULSORY PILOTAGE. Sess. 1889; aud Orders iu Council of 31st July, 1858, llth January, 1859, 12th September, 18G8, 10th May, 1872, 25th June, 1857, 20th November, 1873, 26th October, 1876, 29th January, 1889, and 21st October, 1890. It has been held that under the Local Act (ss. 22, 89) pilot- age is not compulsory for a vessel being towed from one part of the port of Hull to another (^j). But it is compulsory for an inward-bound vessel whilst passing through one dock to her berth in another docli ; and not the less so because she has brought up in the river before reaching her berth ; and though one pilot brings her in from the sea, and another berths her (q). In The Killarneij {>•) it was held that pilotage is compulsory for a Goole vessel inward bound to Goolo. The compulsion is by virtue of 17 & 18 Vict. c. 104, s. 353, which continues 6 Geo. IV. c. 125, by which (s. 58) pilotage is compulsory in licensed waters, except (s. 59) (amongst other exceptions) where a ship is in her home port, being a port for which no "particular provision" as to pilotage had there been made by Act or charter. The exception of sect. 59 does not include Hull, for which provision was made by 52 Geo. III. c. 39. Pilotage certificates are granted to the masters and mates of foreign ships by the Trinity House of Hull. By the original charters the Hull Trinity House was enabled to grant licences to pilot vessels outward bound only. It was doubted by Dr. Lushington, in The Killarneij, whether the charters empowered the Hull Trinity House to make pilotage compulsory under penalty; but by 52 Geo. III. c. 39, s. 21, provision was made for granting licences for piloting vessels bound inwards. Kirkcaldy : Pilotage is compulsory for vessels inward bound under 12 & 13 Vict. c. 30 (Local), s. 31 ; 39 & 40 Vict. c. 179 (Local) ; for bye-laws, see Pari. Paper, No. 154, Sess. 1889. (p) The Maria, L. R. 1 A. & E. however, doubtful whether 6 Geo. 358 4, c. 125, ss. 58, 59, apply to Hull (q) The Itigborrjs Minde, 8 P. D. pilotage; see s«/;m, p. 259, note ((/). 132. As to 52 Geo. 3, c. 39, s. 34, apply- (r) Lush. 427 ; followed in The ing to Hull pilotage, see Usher v. Maria, uhi supra; The Rujhorrjs Zyow, 2 Price, 118. Minde, 8 P. D. 132. It seems, SUMMARY OF LOCAL PILOTAGE A(;TS. 269 Lancaster : Pilotage is compulsory in and out, 47 Geo. III. (Sess. 2) c. 37 (Local) ; for byc-luws, sen Pari. Papor, No. 154 (Sess. 188'J). Limerick : See infra, p. 277. Littlehampton : See Arundel. Liverpool: Pilotage is compulsory inwards and outwards, except for coasting vessels in ballast, coasting vessels under 100 tons, and, jierhaps, coasting- steamships outward Lound(s); 21 & 22 Vict. c. 92 (Local) ; for bye-laws, see Pari. Paper, No. 154 (Sess. 1889), and Orders in Council of 9th May, 18G6, 30th January, 1854, and 26th January, 1881 {t). The effect of the Act appears to be tliut vessels under 100 tons, not being coasters, are not exempt; see sects. 130 — 141. Llanelly : I'ilotago is comjiulsory for all vessels with cargo, and for all vessels above forty tons register in ballast, bound over the Bar of Burry inwards ; and for all vessels of thirty tons register Avith cargo, or of fifty tons register in ballast outward bound. See The Ruby {ii) ; see also 53 Geo. III. c. 183 (Local) ; 6 & 7 Vict. c. 88 (Local) ; 21 & 22 Vict. c. 72 (Local) ; 27 & 28 Vict. c. 203 (Local) ; and for bye-laws, see Pari. Paper, No. 154, Sess. 1889. London : The principal pilotage authority in the United Kingdom is the Trinity House of Deptford Strond {x). Its jurisdiction includes three districts, or classes of districts (y). They are, (1) The London District, extending from Orfordness, on tlie north, to Dungenness, on the south, and comprising the Thames and Medway up to London and Rochester Bridges ; (2) The English Channel District, extending from Dungenness to the Isle of Wight (~) ; (3) The Trinity Outport (s) This exemption is not ex- pressly repealed by the loeal Act, and seems to be .still in force under 17 & 18 Vict. 0. 104, s. 3o3. {t) For decisions under the Liver- Eooi Act, see The rriucetoii, 3 P. >. 90 ; T/if Citi/ ufCamhridge, L. R. 4 A. & E. 161 ; on app. th. 5 P. C. 451 ; The Ocean Jl'ntr, L. R. 3 P. C. 205; The Annapolis ixuiX The Johanna Stoll, Lush. 295 ; The Cachapool, 7 P. D. 217; and under the former Liverpool Act, Carnithers v. Side- hotham, 4 M. & S. 77 ; Attorney- General V. Case, 3 Price, 302 ; liod- riguiz V. Melhtiish, 10 Ex. 110 ; The Xorthatnpton, 1 Sp. E. & A. 152 ; The Agrieola, 2 W. Rob. 10. («) lo P. D. 139, 164. [x] Hereinafter called the Lon- don Trinity House. ((/) See 17 A: 18 Vict. c. 104. s. 370. [:) As to this district, see also Isle of Wight, Newhavcu, Shore- ham. 270 COMPULSORY PILOTAGE. Districts, comprising an}' pilotage district for the appointment of pilots within which no particular provision is made by any Act of Parliament or charter (o). At Bridgwater, Ipswich (b), and Neath, the London Trinity House is the pilotage authority, and compulsory pilotage is estabhshed by special Acts (c). Between Orfordness and the Nore the jurisdiction of the London Trinity House is exclu- sive. The Loith Trinity House, notwithstanding the terms of its charter, and of 1 Geo. IV. c. 37, has no authority to grant pilotage licences for that district {d). The bye-laws of the London Trinity House are set out in Pari. Paper, No. 154, Sess. 1889. The names of the Trinity Outport Districts are : Aberdovey, Beaumaris, Bridgwater (e), Bridport, Caernarvon, Carlisle, Colchester, Dartmouth {/), Exeter (y), Falmouth (A), Fleet- wood and Barrow, Fowey, Harwich, Holyhead, Ipswich («'), Isle of AVight, Lowestoft, Maldon, Milford, Neath {k), New- haven, Padstow, Penzance, Plymouth, Poole, Portmadoc, Rochester, Pye, St. Ives (Hayle), Scilly, Shoreham, South- ampton, Teignmouth, "Wells, Weymouth [1), Woodbridge and Yarmouth (m). Their limits are defined in Pari. Paper, No. 154, Sess. 1889 (n). It will be found that the districts extend, in many cases, far beyond the limits of the ports from which they are named. For example, the Falmouth and Fowey districts together include the whole of the coast and seas from Looe to the Lizard ; and the Yarmouth district in- cludes all harbours and roadsteads from Yarmouth to Orford- ness, thence across the Kentish Knock [i.e., on a line running {a) See Iladgraft v. Hewith, L. E.. 10 Q. B. 350. {h) lladr/raft v. Hewith, supra. [c) These Acts are specified in connection with the places to which they relate. [d) Hossack V. Gray, 12 L. T. N. S. 701. {e) See Ord. in Council of 17th May, 1867; 8 & 9 Vict. c. 89 (Local) . (/) See Ord. in CouneU of 12th Aug. 1859. [g] See Ord. in Council of 4th Nov. 1857. (A) See The Jtmo, 1 P. D. 135. (J) 15 Vict. c. 116 (Local), under which coasters under 50 tons are exempt ; and seeSadgraft v. Hewith, L. R. 10 Q. B. 350. (/■) 6 & 7 Vict. c. 71 (Local). {I) See Ord. in Council of 6th June, 1859. (;w) See The Earl of Auckland, Lush. 387. («) See also Maude & Pollock on Shipping, 4th ed. Ajip. pp. 110 — 125. LONDON 'IUIM^^ IlOrsK. 271 outside or .to tlie eastward of the Knock) to the Downs. Som(3 of tlie districts are non-exclusive and overlap ; the English Channel district, for example, appears to include the Newhaven and Shoreham districts. The production of evidence that the Trinity House was accustomed to license pilots for the district at and previous to the passing of 17 & 18 Vict. c. 104, is sufficient proof that the district is an outport district within sect. .370 of the same Act(r>). Orders in Council approving bye-laws of the London Trinity House, by which various classes of ships are exempted from compulsory pilotage, and providing for the granting of pilotage certificates to masters and mates, are of the following dates : 13th December, 1843; 3rd September, 1844; 8th August, 1845; 18th February, 1854(;;); two of 1st May, 1855; 21st November, 1855; two of the IGth July, 1857 (y); 25th July, 1861 ; 21st December, 1871 (r) ; two of 5th February, 1873 ; 20th November, 1873 ; two of 6th September, 1880; and 17th May, 1882. An attempt is made below to summarize the effect of these exemptions. In the London District and Outport Districts pilotage is expressly made compulsory by 17 & 18 Vict. c. 104, s. 376, In the English Channel District (except such parts of it as are within the Newhaven, Shoreham, and Isle of Wight districts) pilotage is free. There are, however, large classes of ships for which pilotage is free in the compulsory districts. Besides the ships free under the general exemjitions created by the Merchant Shipping Act, 1854, mentioned above, the following are exempt in the London district (.v) : — British ships on their (o) The Juno, 1 P. D. 135. At Fiilmouth the limits of the district have hcon extended so as to include the aiichorawo outside. It has been doubted whether compulsory pilot- age can be so extended : see n. [c), supru, p. 2C4. [p) Made under IG & 17 Vict. 0. 129, s. 21. [q) These Orders in Council will be found set out in Maude & Pollock on Shipping, 4th ed. App. pp. GO scq. (r) In the case of a line of steamers running from London to Japan, back to Loudon, thence to European ports north of Boulogne, and so back to London, it was held that pilotage is free for the voyage with a crew of runners from Lon- don to Holland: Court »eij v. Cole, 1!> Q. P.. D. 447. (.<) All these exemptions must be taken to be subject to 17 & 18 Vict, c. 104, s. 3o4. which imposes com- pulsoiy pilotage on ships carrying 272 COMI'ULSORY PILOTAGE. inward or outward voyage from or to the Cattegat or AVliite Sea, or any place in or between them, whether using the north or south channels of the Thames ; British ships being constant traders to or from ports between Boulogne (inclusive) and the Baltic ; British ships passing on their voyage through any pilotage district, and not anchoring therein ; ships sailing from Dover, Deal, or the Isle of Thanet, up or down the Thames or Medway or into or out of any place within the jurisdiction of the Cinque Ports, and owned wholly or in part by master or mate residing in Dover, Deal, or the Isle of Thanet. All these are exempt under 17 & 18 Vict. c. 104, s. 353 (which continues G Greo. IV. c. 125, ss. 59, 62), and an Order in Council of the 18th of February, 1854( Pilotage in Foreign and Colonial Waters. Compulsoiy pilotage exists in many foreign countries, including the United States of America, France, Germany,. Belgium, Holland, Spain, Portugal, Russia, and the Argen- tine Pepublic. But, except in Germany (see Allgemeines Deutsche Handelsgesetzbnch, Art. 740), the doctrine that the shipowner is not liable for the fault of a compulsory pilot does not prevail abroad : see, as to America, Tlie China, 7 Wall. 53, and observations 2 Stuart's Vice Ad. Rep. (Canada) 231 ; T/ir Jlrrriinac, 14 Wall. 199 ; Smith V. The Creole, 2 Wall, (jun.) 48o ; 2 Parsons on Ship, (ed. 1869) 117; Smith v. Coiidnj, 1 How. 28 : as to France, Caumont, Abordage Maritime, §§ 191 — 194 ; Codes Anno- tees, Sirey et Gilbert, Code Commerc. Ai"t. 21G, § 9 ; Sibille, Abordage, 280 : as to Spain, Codigo de Commercio, Arts. 676, 691, 693 : as to Belgium, see The Ifallei/, L. R. 2 P. C. 193 : and generally as to foreign law on the subject, see Reports of Pilotage Committees of 1870 and 1888. The following is a summary of pilotage laws in force in some of the British colonies and dependencies : — Australia, South : Pilotage compulsory ; 44 & 45 Yict. No. 237, s. 282. Australia. Western: Pilotage compulsory ; 18 Vict. No. 15, s. 7. Bermuda: Pilotage compulsory ; Law No. 2 of 1843 con- tiuued by subsequent laws. Bombay : See Muhammad Yustif v. Pe7iinsular S^- Oriental Steam Navigation Co., 6 Bombay L. 11. 98. Canada : 36 Vict. c. 54, makes the pa3'mcnt of pilotage charges compulsory ; but expressly provides that no ship need be placed in charge of a pilot (ss. 56, 69) ; and that nothing in the Act shall be deemed to exempt owners from liability for the faidt of a compulsory pilot (s. 69) : See I'he Quebec, 19 Low. Canada Jur. 197. 31 Vict. c. 58, and 27 & 28 Vict, c. 13, s. 14, are {semble) repealed by the later CanacUan law. 280 COMPULSORY PILOTAGE. Jamaica: Pilotage compulsory; Law 35 of 1873; Law 29 of 1879 ; Law 19 of 1881 ; Law 36 of 1889. 3Iaur>tins : Ordinance No. 26 of 1881. New South Wales : 35 Vict. No. 7. Netv Zealand: Pilotage compulsory; 31 Vict. No. 32; 33 Vict. No. 42. Newfoundland : St. John's; pilotage compulsory for inward- bound ships, except coasters; Ch. 100, Consolidated Statutes of Newfoundland. Nova Scotia : Pilotage compulsory ; Revised Statutes, Third Series, Ch. 79; 33 Viet. c. 17. Prince EdicarcVs Island : Pilotage compulsory (with excep- tions) ; 7 WiU. 4, c. 19. Queensland: Pilotage compulsory; 46 Vict. No. 12, s. 113. South Australia : See Australia^ South. Straits Settlet)ients : Pilotage compidsory ; Ordinance No. 8 of 1869; Pilotage Ordinance, 1868. Tasmania : Pilutage compulsory ; 21 Vict. No. 16, ss. 73, 74. Victoria: Pilotage compidsory; 28 Vict. No. 255, ss. 73, 74. Western Australia : See Australia, Western. ( 281 ) CIIArTER XI. COLLISION -WITII KEFERENCE TO — (1) THE SHIPOWNER'S LIAHILITY AS CARRIER — (2) THE CONTRACT OF IN- SURANCE. — CRIMINAL AND OTHER CONSEQUENCES OF COLLISION. The liability of tlie shipowner for loss by collision of goods on board his ship may be considered under two heads : (1) his liability at common law by the custom of the realm ; (2) his liability upon the contract of carriage. A conmion hoyman(cr), the owner of barges, fiats, or lighters, who lets them out for hire {h) , the owner of a general ship trading between places within the reahn or to foreign lands (c), are subject to the liability of a common carrier. Whether the owner of a shij) that is not a general "WTiether ship, and trades to foreign lands, is a common carrier, or a^coinmon ^ liable as such, is doubtful {d) . Again, whether the o"\\Tier carrier. of a general ship is liable as a common carrier, except so far as he is protected by the contract, wliere he carries goods under a bill of lading, was, imtil of late years, a question much disputed (c). It appears to be now decided that he is not (./'). («) Forward v. F'Utard, 1 T. K. Mercantile Bank of India, London, 27. and China v. Kcthcrlanda India {b) Bale V. EaJl, 1 Wils. 281 ; Steam Kavifjation Co., 10 Q. B. D. Lymi V. McUs, 5 East, 428 ; Liver 521. Alkali Co. v. Johnson, L. R. 9 Ex. (e) Sec 1 Parsous on Shippin2f, 338. pp. 245 seq. ed. 1869, where tho (c) Morse v. Slue, 1 Ventr. 190, writer states that he is not so 238 ; see on this case per Black- liable. burn, J., L. R. 9 Ex. 341; per (/) Ntnjent \. Smith, 1 C. T. D. Cockbuni, C. J., 1 C. P. D. 430 ; 19, 423 ; but see per Pollock, B., Barclaij v. Cnculla y Gana, 3 Bougl. Chartered Mereantile Hank of India, 389. London, and China v. Netherlands {d) See Liver Alkali Co. v. John- India Steam Xavigation Co., 9 Q. B. son, uhi supra ; Xiir/ent v. Smith. D. 118; Haijn v. Culliford, 4 C. P. 1 C. P. D. 19 ; ib. 423 ; Chartered D. 182. 282 SHIPOWNER S LIABILITY AS CARRIER. Shipowner's liability at common law. Shipowner's liability on the contract of carria'^c. At common law, where the shiiDOwner is subject to the liability of a common carrier, he is liable as insurer against loss or damage from any cause except the act of God and the Queen's enemies {(/). For injury to passengers on board his ship he is liable only Avhere it is caused by the negligence of himself or his agents, the officers or crew (h) . To passengers, therefore, he is liable for injury in a collision caused by the fault of his own ship, or by the fault of both ships. To cargo-owners he is liable at common law for loss or damage in a collision by the fault of his own, or of both ships, or where it is an inevitable accident. It is possible that a collision might occur by act of Grod, in which case he would not be liable. But the ordinary so- called case of collision by inevitable accident, as where it is caused by stress of weather, fog, or latent defect in gear, would not be held to be an act of Grod (?) . It has been held in America that owners of a tug towing craft with goods on board are not liable as common carriers for the safety of the goods (A:) . In practice the shipowner carrying goods usually con- tracts himself out of the onerous liability imposed on him by the common law. By the charter-party or bill of lading it is usually agreed that the goods shall be carried and delivered in good order, unless loss or damage shall arise from certain specified causes. These causes, technically called " exceptions, " commonly include " perils, dangers, and accidents of the sea, rivers, land, carriage, and steam navigation, of Avhatsoever nature and kind. " Under a bill of lading so framed the sliipowner is not liable for a collision which occurs Avithout negligence in either ship (/), (17) Knrjent v. >inutli, 1 C. P. D. 19; ih. 423. (A) See Redhead v. Midland Hail. Co., L. R. 2 Q. B. 412 ; on app. \li. 4 Q. B. 1579, and the cases there cited. (j) See Kugcnt v. Smith, 1 C. P. ]). 19, 34, as to what i« an act of God. (/i) Caton V. Rumncy, 13 Wend. 387. This seems to be the general rule, but thei-e are contrary de- cisions ; see 1 Parsons on Shipping (cd. 1869), 247, note. (/) Bulky V. Fisher, 3 Esp. 67 ; Chartered Mercantile Bank of India, BILL OF LADING EXCEPTIONS. 283 or for a collision caused wliolly by tlio fault of the other ship {m) ; hut ho is liable where there is negligcuee in his own sliip. tSomctimes in the bill of lading there is con- Exception of taiued an exception of " collision." In that case the ship- J^'^^'JJ'or " owner is not liable for a collision caused by the fault of lading, the other ship (ii) ; but lie remains liable for a collision caused by the fault of his own ship. The reason for his liability for a collision, caused wholly or in part by the fault of his own ship, is tliat " underlying the contract implied or involved in it (the bill of lading) is ... an engagement on his part to use due care and skill in navi- gating the ship and carrying the goods " (o). To cover loss by the fault of the carrying ship the other ex- following exception is sometimes added : — " Accidents, ^^I"^^^^^- loss, or damage, from any act, neglect, or default whatso- ever, of the pilot, master, or mariners, or other servants of the shipowner in navigating the ship." These words cover loss in a collision caused by the fault of the carrying ship (p) ; but they do not cover loss by a collision with another ship of the same owners caused entirely by the fault of such ship {q) . An exception of " dangers or accidents of navigation " in a bill of lading covers loss of cargo by collision caused by the fault of the other ship (r). Loiido)), (Old China v. Xdhcrlands (o) Per Lord Macnap-htcn, The India Steam Xavigation Co., Limited, Xantho, 12 App. Cas. 503, 515. 10 Q. B. D. 521. As to American {p) Chartered Mercantile JJank,^-c. law on the point, sec Angell on v. Xetherlands India Steam Xaviga- Camers, oth ed. 513. tion Co., 10 Q. B. D. 521. Except, (m) Wilson, Sons i\- Co. v. Oicncrs perhaps, where there is negligence of Cargo per Xantho, The Xantho, on the part of the owner in ap- 12 App. Cas. 503, overruling pointing an incompetent master or Woodleg V. Michell, 11 Q. B. D. 47. crew ; see per Brett, M. E., 10 Q. («) Lloyd V. General Iron Screw B. D. 532. Collier Co., 3 H. & C. 284 ; Grill v. {q) Chartered Mercantile Bank, S;c. General Iron Screw Collier Co., L. R. v. Xetherlands India Steam Xaiiga- 1 C. P. 000 ; on app. ib. 3 C. P. tion Co., ubi sitpru. 476: lI'oGdlci/ \. Michell, II Q. B. ()■) Sailing Ship Garsion Co. v. D. 47 ; Chartered Mercantile Bank, Hickic, Bormltn ^- Co., IS Q. B. D. (^•c. V. India Steam Xavigation Co., 17. 10 Q. B. D. 521,531. 284 shipowner's LlABlIilTY AS CARRIER. Collision be- tween ships of the same owner. The Bernina was in collision partly by her own fault. Goods on board were in consequence of tbe collision tran- shipped to another ship, and whilst being carried on to their destination were lost by the fault of those on board the carrj'ing ship. It was held that an exception in the original bill of lading of " act of God, Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation," did not cover the loss (.s). In the case of a collision between the carrying sliip and another belonging to the same owners, the effect of the exception last mentioned, together with the statutory rule as to division of loss where both ships are in fault (36 & 37 Vict. c. C6, s. 25, sub-sect. 9), is to relieve the shipowner from making good to the cargo-owner more than half his loss. He is liable as carrier for half, and for half only, of the loss on the goods {t). The case {u) which decided these points was as follows : — A collision occuiTcd between The Croini Prince and The Afjeh, a ship belonging to the owners of The Crown Prince^ by the fault of both ships. The question arose whether the shipowners were liable to the owners of cargo shipped on board The Croivn Prince under a bill of lading containing exceptions of, amongst other things, " colli- sion," and " accidents, loss, or damage from any act, neglect, or default whatsoever of the pilots, master, or mariners, or other servants of the company in navigating the ship." It was held that the shipo'wners were not liable upon the contract of carriage. Baggallay and Lindley, L.J J., were of opinion that the exception of " collision," although it did not cover the negligence of The Crown Prince {x), did cover that of The Afjeh ; and further, that the negligence of Tlie Croivn Prince was (a) The liernina (No. 2), 12 P. D. 36. {t) Chartered Mercantile Hank, ifr. \. Netherlands, ^-c. Co., 10 Q. B. D. 621. («) Ibid. [x) Lloyd V. General Iron ScreiO Collier Co., 3 H. & C. 284 ; Grill v. General Iron Screiv CMicr Co., L. R. 1 C. P. GOO ; lb. 3 C. P. 476, COI,LISTOX HETWKKN STITPS OF SAMi; (JWNKR. 285 covered hy the otlier exception stated above. lu I ho Court below (//), Pollock, B., and Manisty and Stephen, J.J., considered that the shipowners were not protected by the exception of " collision," on the ground that, since liability for loss by collision caused by the fault of the carrj'ing ship is not excluded by that exception, neither is loss by collision caused by the fault of the carrying ship and another belonging to the same owners. Pollock, B., and Stephen, J., liold that, though the second exception would have protected the shipowners, if the collision had been caused entirely by the fault of T//e Croini Prince, it had no application to a ease where both ships were in fault. Manisty, J., held that the contract in the bill of lading was express, to carry and deliver the goods safelj', subject to certain exceptions, which did not include negligence of those on board The AfjeJi. Pollock, B., appears to have held the shipowners were liable as common carriers, being unprotected by the terms of their bill of lading. As stated above, the Court of Appeal reversed the deci- sion of the Court below as to the liability of the ship- owners on the bill of lading. But the shipowners were held liable in tort (~) for the negligence of their servants on board The Afjeh, though, by reason of the rule as to di\dsion of loss, for only half the loss. The rule as to division of loss where both ships are in Rule as to fault does not affect the right of a cargo-owner to recover iogs"^'^^ full damages for breach of the contract of carriage aa-ainst the owner of the carrying ship, though the other ship was also in fault for the collision. But it abridges his common law right, as against the owner of the other ship, by limit- ing the liability of the wrong- doer to one-half the loss («) ; (y) 9 Q. B. D. 118. {a) The Milan, Lush. 388 ; Chap- [z) Astotheliability of tlieship- man v. Roi/al Netherlands Steam owner in tort as well as ujion the JS'avii/ation Co., 4 P. D. 157, 165; contract, sec Monjan v. I'cvaz, ti II. Chartered Mercantile Bank of India Scia. 2Gb ; Fontife.vx. Midland liaiL v. Netherlands India Steam Xavi- Co., 3 Q. B.D. 23. (/ation Co., 10 Q. B. D. 521. The 286 shipowner's liability as caukier. Exception of " barratry" does not cover negli- gence of carrying ship. Whether ex- ception of ' ' perils of the sea " covers infring'ement of the Regu- lations. and tliis is tlie case even where the two ships belong to the same owner (b). If part of the loss on cargo is recovered against tlie owner of the carrying ship, the residne, up to one-half the loss, may he recovered against the other ship (r). Damage to goods in a collision caused by the negligence of those on board is not covered by an exception of barratry in the bill of lading (d). Shipowners contracted with a passenger that they should not be responsible for any loss or damage arising from perils of the sea .... or from any act, neglect, or de- fault whatsoever of the pilot, master, or mariners. It was held that no damages could be recovered for the death of the passenger, who was killed in a collision for which the carrying ship was in fault (c). Where the collision is caused by an unnecessary, but not negligent, breach of the Regulations for preventing collisions at sea, so as to cause the ship to be deemed to be in fault under 36 & 37 Yict. c. 80, s. 17, it seems to have been considered by Brett, M. R., in Woodley v. Michell (/) , that the shipowner would be liable for damage to cargo, notwithstanding an exception in the bill of lading of " perils of the sea." Sed qu. Milan, iihl supra, so far as it de- cides that the innocent cargo-owner can recover no more than half his loss against the other shiji, has nut been followed in America. It has been held by the Supreme Court that the innocent cai-go-owner is entitled to a decree for the whole of his loss against either of the wrong-doing shijis if one only is sued ; if both are sued he is en- titled to a decree for half his loss against each ; and if a moiety of his loss exceeds in amovint the statutoiy liability of either of them, or if, for any other reason, he fails to obtain half his total loss from either of them, he is entitled to a further decree a gainst the other for the difference ; see The Alabama and The Gampcock, 2 Otto, 6!).j ; TIic Jdiilatri, ;] Otto, 337; The Atlas, ib. 302 ; The Vir'/iaia EJirmaii, 7 Otto, 309 ; The C'iii/ of Jfartford and The Unit, ib. 323 ; The City of Far is, 14 Blatchf. 531 ; The Civilta and The Jiesttcss, 13 Otto, G99 ; The FJco)wra, 17 Blatchf. S8. {b) Chartered Mercantile Bank of India v. Netherlands India Steam Navlqation Co., uhi supra. {e) The Demetrius, L. R. 3 A. & E. 523. (d) Grill V. General Iron Screw Collier Co., L. R. 3 C. P. 47G. (e) Ilaig v. Eoi/al Mail Steam racket Co., 52 L. J! Q,. B. 395, G40. (/) 11 Q. B. I). 117. RAILWAY COMPANY — CHAIITERER — MASTER. 287 A railway company carrying passengers by land and Effect of sea attempted to free themselves from liability for the carrier will negligence of their servants by repudiating such liability "°* ^^ ^[^^^^ . for nei^li'*"euc6 in public notices and advertisements. AVhere, after pub- of sen-ants, lication of such a notice, a collision occurred between a ship employed by the railway company, with cargo and passengers on board, and anotlier ship, by the fault of the former, it was held that, under the Acts res'ulatino- their steamship traffic {(/), the company were liable to the passengers and cargo-owners, notwithstanding the notice (//). Whether the shipowners are liable to the charterer for Shipowners' loss sustained by the latter in consequence of a collision eh)^rtf7 *f for which the chartered ship is in fault, will depend upon 'p':'^ by col- the terms of the charter-party. Where such liability exists, it will extend to expenses of salving the cargo which have been paid by the charterers or their underwriters (/). In a case (/«•) where the officers and crew were the servants of the owner, though by the terms of the charter- party the ship was " placed under the direction of " the charterer, it was held that the owners were liable to the charterer for loss sustained by the latter in consequence of the ship getting ashore by the negligence of her crew. The master, as well as the owner, is liable for the loss Liability of of goods taken on board by him as a common earner (/). "arrier''^ And it is said that he is liable for the negligence and mis- feasance of his officers and crew (m) . In America, it was (ff) The Railway and Canal the Court as establisliincr flmt the Traffic Act, 1854 (17 & 18 Vict. owners would bo liable to third c. 31) ; 2G & 27 Vict. c. 92, s. 31 ; j^arties for the nee-li>,^cnce of the 34 & 35 Vict. c. 119, s. 12. crew. Cf. T/ie Ta^niania, 13 P. D. (A) Boolan v. Midland Rail. Co., 110. 2 App. Cas. 792. (/) Morse y. Slew (or Slue), 3 Keb. (t) Scaramanqa v. Marquand, 5 72, 112, 135 (best report) ; Raym. Asp. M. C. 410, 506. 220 ; 1 Mod. 85 : 1 Ventris, 2*38 ; (/••) Onioa and Clelaiid Coal and Jioucher v. Lawson, Cas. t. Hardw. Iron Co. V. Hiaitkij, 2 C. P. D. 404. 85, 194. Amongst other cases, Fletcher v. («;) Story on Agency, §^ 314 — Braddkk, 2 B. & P. (N. R.) 182, 317; 3 Kent's Comra. 218 ; MoUoy, seems to have been roliod on by 1. 2, c. 2, s. 13. 288 SPIirOWNETl S LIABILITY AS CARRIER. Jurisdiction in Admiralty in case of damage to cargo. held that the master was liable to a passenger on board liis ship who was injured by a collision caused bj the fault of the pilot, and not by the fault of the master {ii). There is jmisdiction in Admiralty in respect of a claim by the owner, consignee, or assignee of the bill of lading of goods carried into any port in England or Wales (o) , for damage to the goods by the negligence or breach of con- tract by the owner, master, or crew of the carrying ship, provided no owner or i:)art owner of the ship is at the time of the institution of the action resident in England or Wales (;;). To enable him to sue, it seems to be necessary that the property in the goods should have passed to him ((/). Though the statute gives a right to proceed against the ship in Admiralty, there is no maritime lien for damage in such a case (r). The right of the shipowner to recover against the cargo- owner general average contribution for the expenses of raising his ship sunk in collision, is considered else- where («). The application of the Act limiting the liability of shipowners upon the contract of carriage to an amount depending upon the tonnage of their slup, is considered above in connection with the subject of limitation of liability (f) . It may be here noticed that railway com- panies carrying by sea in ships not owned by themselves are entitled to the benefit of this Act in some cases in which other carriers by sea are not {>i). {)i) Denison V. Sei/monr, dWend. 9. (o) As to tlic meaning of this term, see T/ie Bahia, Br. & L. 61 ; The Fieve Supcriore, L. R. 5 P. C. 482 ; The Dantzic, Br. & L. 102. {p) 2-1 Vict. c. 10, s. 6; 36 & 37 Vict. c. 66, s. 16. {({) See The Freedom, L. R. 3 A & E. 495, following The St. Cloud Br. & L. 4 ; The Nortmy, Br. & L 377. Tlic coiitraiy has been held by Sir R. rhilliniore, though the facts did not render a decision upon the point necessary. See The Tiglia Mafigiore, L. R. 2 A. & E. 106 ; The Xepoter, ibid. 375. It does not appear that these cases were cited in The Freedom. (/•) TJie Fieve Siqicriore, L. R. 5 P. C.482. (.y) Fnfra, p. 302. {t) Supra, pp. 161 seq. {«) See supra, p. 178. INSTRAXCE. 289 Collision with reference to the Contract of Insurance. Loss by a collisiou wliick occurs witlifjut fault in either insurer'ts lia- sliip is a loss by peril of the sea within tlie meaning of ^(j/i^^i^^j -^J^^ that term in an ordinary policy of insurance on ship (.r). withont fault And loss by collision caused by the negligence of the -^YTierc it is bv other ship is a peril of the sea for which underwriters are the fault of liable (?/). Where the collision is caused by the fault of „^" '*'.'^'^. . , Where it is both ships, or of the insured ship alone, it seems that the by the fault imderwriters are liable for the loss on the insured ship (z). orof^iusured The principle is that, where the loss is caused by a peril ship alone. insured against, the insurers are liable, although the loss was also caused by the negligence of the insured or his servants (a). In such cases the loss is said to be caused proximately by the peril specified, and remotely by the negligence, and the maxim caiisa proximn non remota spec- tatiir applies {h). Expenses arising from delay caused by collision are not Demurrage recoverable under the ordinary Lloyd's policy (c). nm^^"'*^^ {x) In Buller v. Fisher, 3 Esp. 284 ; Davidson v. BurnamI, L. R. 67, it was held to be within the 4 C. P. 117, 121. exception of " perils of the sea " in (i) See further as to this subject, a charter-party ; iVfj/^ijOS V. i/«<7/Jc, Park on Insurance, Sth ed. 139; 3 Dougl. 374. Aruould on Insiu-auc(\ otli ed. 744 (//) Smith \. /, 1 T. R. 252. If a ship which is insured is injured in collision and is repaired, and afterwards becomes a total loss, the insurers arc liable as well for the expense of the repairs as for the loss. But they are not liable for damage caused by the collision be- yond the expense actually incurred in repairing such damage : Ulctvart V. Sttelr, 5 8cott, N. K. 927. (.<,) 15 Q. B. 649, 667. See also Lidgett v. Secretan, L. R. 5 (J. P. 190. {t) As to what is salvage, see liuniaiid V. liodocanachi, Q. B. D. 633 ; 7 App. Cas. 333. (m) See BarreJl v. Tibbits, 5 Q. B. D. 500, a case of fire insurance. (.'■) As, for example, the expense of raising her, if she is an obstruc- tion in a harbour, under 10 & 11 Vict. c. 27, s. 56; Eglington v. Xor- mnii, 46 L. J. Ex. 557. (y) Yates v. lllnjte, 4 Bing. N. C. 272, 283; 5 Scott, 640; White v. JJobinsoii, 14 Sim. 373 ; Jiaiidal v. Cochrane, 1 Yes. 98 ; Blaanpot v. J)a Costa, 1 Eden, 130; Brooks \. MclJonneU, 1 Y. & C. Ex. 500 ; Mid- land Insurance Co. v. Smith, 6 Q. B. D. 561 ; Scaramanga v. Jfiinjiiand, 5 Asp. M. C. 410, 506. As to what evidence is required of the right of the insurer to sue in the name of the insured, see 'The John Bellamy, L. R. 3 A. & E. 129. (z) 2\orth of England, ^^-c. Assurance Association v. Armstrong, L. R. 5 Q. B. 244. 294 COLLISION WITH REFERENCE TO INSURANCE. collision, and the underwriters paid the owners 6,000/., as for a total loss. Afterwards, the underwriters, in the name of the shipowners, instituted a damage suit in the Admi- ralty Court against the other ship. It was held that the last-mentioned ship was solely in fault for the collision, and judgment was given against her owners for 5,683/. U.S. 7d., the amount of their statutory liability. The true value of the shijD insured was 9,000/. ; and her owners claimed so much of the damages recovered in the Admi- ralty action as would make up the difference between the sum paid to them by the underwriters and the value of their ship. It was held that, as between the shipowner and the underwriters, the value named in the policy was conclusive, and that the underwriters were entitled to the whole of the damages, just as they would have been entitled to the ship if she had been sunk and afterwards recovered {a) . A vessel being insured by valued policies to the extent of two-thirds of her valuation, the assured agreed to assign to the insurers all right to recover damages for any loss paid for by them, and that the insm-ers should be entitled to such proj)ortion of the damages recovered as the amount insured should bear to the valuation in the policies. The insurers paid to the assured two-thirds of the loss sufPered by them in a collision for which both ships were in fault, and they released and assigned to the owners of the other shi^D their riglit to damages growing out of the collision. In an action by the owners of the insured ship against the owners of the other shij:) for damages from the collision, it was held by the Supreme Court of the United States that one-half of the two-thirds must be deducted from the sum recoverable by the owners of the insm-ed ship against the other ship. In the Courts below it had been held, (1) that the whole, (2) no part, of the amount paid by the insurers should be deducted from the amount of damages recover- able against the other vessel (/>) . This conclusion was (a) North of England, 6;c.AHSurance Q. B. 2-14. Association v. Armsironr/, L. R. 6 {b) The Potomac, 15 Otto, 030. RECOVERY HY ASSURED AFTER PAYMENT IJY ASSURERS. 205 arrived iit hy the Supreme Court upon the following con- siderations : — tliat the right of the owner of tlie sliip sued was that which lin had taken by assignment from the in- surers, namely, the right to recover one-half the loss on the sliij) insured, and to retain such proportion of the damages recovered as the amount insured bore to the valuation in tlie ])olieies, /. r., two-thu'ds thereof. 13ut the insurance applied to all injuries caused by any collision, whether inevitable, or by the fault of one, or of both ships. One- half of the sum paid by the insurers was therefore appli- cable to that half of the assured's loss for which he could recover from the other ship, and the other half to the half for which he could not recover. Therefore one-half, and one-half only, of the two-thirds of the sum paid by the insurers was to be deducted from the sum recoverable in damages from the other ship. If the assui'ed, after receiving the amount of his loss Assured is from his insiu-ers, recovers damages from the wrong-doer l^^^^j. ^l in the collision, he is a trustee of such damages for the damages underwriter (r) . But the fact that the plaintiff in a respect of the collision action has been compensated for his loss by his collision. insurers is no answer to his claim for damages against the recover ^'^^ wrong-doer (d) . against The defendants insured theii- ship. The Queen of the East, notwrthst/md- for 1,0U0/. with the plaintiffs ; and insured the freight else- i^^g payment ' J^ ' , . "Y insurers. where. The ship, while proceeding to a port of loading imder a charter-party, was rim into and damaged by The Cassaiidi'd. The defendants abandoned their sliip to the plaintiffs, who settled with the defendants as for a total loss. The defendants afterwards recovered in the Admi- ralty Division against the owner of The Cassandra damages in respect of the loss of their ship and also in respect of loss of freight. It was held that the plaintiffs were not (c) Yates v. Win/te, uhi supra. Taylor v. Bncar, 4 B. & E. 58 ; [d) Mason V. ^aiushiri/, 3 Dougl. and see Bradbunt v. Great lf'tsti:rn 61; Yates v. Whi/le, iibi supra; Rail. Co., L. R. 10 Ex. 1. 293 COLLISION WITH REFERENCE TO INSURANCE. Insurers can- not recover ■where insured could not have re- covered. Eights of imder writers in case of collision be- tween ships of the same owner. No general average con- tribution for damage in collision. entitled to recover against the defendants the damages recovered by them for loss of freight. The money had been paid by the defendants to the insurers on freight, and, in the opinion of the Court of Appeal, rightly so paid (e). In an action in which the insured could not have re- covered damages, neither can the underwriters. They have no right of action apart from him (/) ; and in a case in Admiralty before the Judicature Act it was held that they must sue in his name {(/) . Where a collision occurred between two ships belonging to the same owner, and one of them, with cargo on board not belonging to the shipowner, was sunk by the fault of the other ship, the shipowner paid into Court, under the Merchant Shipping Acts, the amount to which his liability, as owner of the wrong-doing ship, was limited. It was held, that as against the cargo-owners, underwriters upon the innocent ship, who had paid the insm-ance upon her, were entitled to no part of the money paid into Court {h) . The decision would, it seems, be the same in the case of a collision between two ships owned in part by the same persons. In Simpson v. Thorn j)son the members of the House of Lords who addressed the House declined to express an opinion whether the ordinary marine policy covers a loss by collision with another ship belonging to the assured. Damage to ship or goods by collision is not the subject of general average contribution ; and insurers will not ordinarily be liable to contribute in such case. But for loss voluntarily incurred in consequence of collision, as (e) Sea Insurance Co v. Hadden, 53 L. J. Q. B. 252 ; 13 Q. B. D. 706. (/) Simpson v. Thompson, 3 App. Cas. 279. {{/) The Regina del Mare, Br. & L. 315 ; The John Bellamy, Xi. R. 3 A. & E. 129 ; Midland Insurance Co. v. Smith, 6 Q. B. D. 561. (/<) Simpson v. Thompson, 3 Aj^p. Cas. 279. The rights and liabi- lities of underwriters were very fully discussed in tliis case. CRIMINAL LIAHILITY FOR COLLISION. 297 where f^ear and ANrcckuge is cut away for tin; i^ufetj of tlio ship, tlie shipowner has recovered hy way of general average contribution (/). In such a case tlie underwriter would be liable. A collision between a barque and a steamship being inevitable, without fault on the part of the l)ar(|ue, the barque altered her course so as to strike the steamship stem on, and thereby probably saved herself from being sunk with her cargo. In consequence of the collision she had to go into a Danish port for repairs. She was arrested at the suit of the steamer, and by a decree of the Danish Court her owners were compelled to pay half the dilference of the losses on the two ships. They sought to recover this sum, together with the cost of the repairs to their own ship, and of the proceedings in the Danish Court, as general average contribution from the owners of cargo. It was held by a Massachusetts Court that they could not recover (/•). Incidental Rights and Liabilities arising out of Collision. Beyond incurring the civil liability for damages, the Criminal person guilty of reckless or negligent navigation, whereby co]^^!-*^ ^?^ "" a collision occurs in which life is lost, or bodily injury (/) suffered, may be prosecuted criminally. " Those who navigate improperly, either by too mucli speed, or by negligent conduct, are as much liable, if death ensues, as those who cause it on a public highway, either by furious dri\dng or negligent conduct" {>//). The criminal liability (t) Fliiminer v. WUdman, 3 M. & {k) Emery v. IIi(ntingdo)i, 12 S. 482. See also The Ettnck, 6 P. Amcr. Rep. 725. D. 127, as to the right of the ship- (/) As to bodily injury, see Mr. owner to general average coutribu- Justice Stephen's Digest of Cri- tion from cargo-owner whose goods miiial Law. Art. 211. were sunk in collision and raised (w/) I'er Parke, B., in Eey. v. with the ship. Taijhr, 9 C. & P. 672, 674. 298 INCIDENTAL RIGHTS AND LIABILITIES. Infringement of the Regu- lations. attaches only to those hy whose personal misconduct or negligence the collision occurs (m). But where a foreign ship, in charge of an English pilot in the Thames, ran down a boat and drowned a man, and the collision was caused by the man at the helm, a foreigner, not under- standing and carrying out the pilot's orders, it was held that the pilot was guilty of manslaughter, if by his own negligence he failed to make his orders understood (o). The master, pilot, or any seaman of a British ship, who wilfully or negligently endangers the life of any person on board such ship, or endangers the ship herself, is guilty of a misdemeanour (j)). Malicious injury to a boat used for the guidance of sea- men or for purposes of navigation is felony {q) . If a pilot when in charge of a ship negligently causes her to suffer damage, he is guilty of a misdemeanour ; and if a qualified pilot, he is liable to suspension and dismissal by the authority by which he is licensed (>■). Where an unnecessary infringement of the Statutory Regulations for Preventing Collisions at Sea causes damage, the person in charge of the deck is guilty of a misdemeanour («). Wilful infringement of the Regulations by a master or owner is a misdemeanour punishable by fine or imprison- ment. In case of damage arising from such infringement, the person in charge of the deck is liable to these penalties, imless it is proved that departure from the Regulatious was necessary {f). And although the master or person in (n) Eex V. AUai, 7 C. & P. 153 ; JiexY. Green, ibid. 156 : Reg. v. Bar- rett, 2 C. & K. 393 ; E. v. Haines, ibid. 368 ; and see Oakley v. Speedy, 40 L. T. N. S. 881. (rt) Reg. V. Spcnee, 1 Cox, C. C. 352 ; see London School Board v. Lardner, infra, p. 420. {p) 17 & 18 Vict. c. 104, ss. 239, 366. This Act is more lenient than some of the mediseval codes. De- capitation at the windlass, or keel- hauling, was the punishment pro- vided for negligent and incompetent Ijilots. {q) 24 & 25 Vict. c. 97, s. 48. (r) 17 & IS Vict. c. 104, s. 366. (s) 25 & 26 Vict. c. 63, ss. 27, 28; 17 & 18 Viot. c. 104, s. 518. (0 25 & 26 Vict. c. 63, ss. 27 and 28; 17 & 18 Vict. c. 104, s. 518. As to the meaning of " master" CRIMINAL I-IAUII.ri'Y FOR COLLISION. 299 charge of thu t^liip is liable criniiiuilly, the owner is answer- able in a civil action for damage caused by his officer's negligence {«). In the case of a collision caused by the criminal fault of Criimnal lia- a foreigner, or when; the collision occurs abroad, if it is ^y^^ ^^jp ^^ sought to punish the offender in this country, questions of the ..tJi'mler difficulty arise as to his liability to the criminal law of the colTision England, and the jui-isdiction of our Courts (:r). The occurs abroad liability and jurisdiction depend upon (1) the offender's nationality ; (2) the flag of the ship on board which the offence was committed ; and (3) the place of collision. In the case of a person killed or injured on board one ship in a collision caused by the fault of a person on board another, the offence, if intentional, would probably be held to have been committed on board the latter ; if not intentional, as where it consists in negligence, on board the former (//) . The criminal liability for reckless or negligent navigation seems to be as follows : — If the ship is British, tlie offender is liable, whether a British subject or a foreigner, and wherever the collision occurs {z). If it oeciu's in the United Kingdom, or in British territory or waters, he is liable, whether a British subject or a foreigner, and whether the ship is Britisli or foreign {a) ; if he is a British subject, and probably also if he is a foreigner (6), and "owner," see s. 2 and s. 100 judji-ments of Denman, J., and of the Act of 1854. As to whether Lord Coleridge, C. J., iOid. pp. 101, an infiingcment of local regula- 158 ; and per Mellish, L.J., The tious is within the penaltj- t)f these J/. Moj/kidi, 1 P. D. 107, 112. Acts, see T/w J.aih/ Jjuiviishin; 4 (r) Iteg. v. S'llt/er, D. & B. C. C. P. D. 26 ; 'The ISwansea and 'The b'lb ; Eeg. v. Anderson, L. R. 1 C. Condor, 4 P. D. 115; supra, p. 58. C. R. 161 ; lleg. v. Carr, 10 Q. B. (h) See Grill v. General Iron D. 76 ; Rex v. Jernot, Russell oa Serew Collier Co., L. R. 3 C. P. Crimes, 5th ed. p. 11, note. As to 476, where it was held that wilful what is sufficient evidence of the infringement of the Regulations ship being British, see lleg. v. He- was not barratry within the mean- berg, L. R. 1 C. C. R. 264. ing of a bill of lading. {a) Cunniiighaui's Case, Bell's C. (.r) As to criminal negligence C 220, 234 ; 4 Pliillimorc's luter- causing collision, see supra, p. 297. national Law, 2ud ed. 767. (v) See the judgment of Cock- [b) See Jleg. v. Anderson, ubi biu-u, C. J., in Teg. v. Keijn, 2 Ex. supra ; lleg. v. Menham, I F. & F. D. 03, 232 seq. But see also the 3o9. 300 INCIDENTAL RIGHTS AND LIABILITIES, Officer's cer- tificate may- be cancelled. Salvage after collision. wlietlier lie is a memljer of the ship's company or not (f), and the ship British, or if within three months of the offence he has been employed on board a British ship, he is liable wherever the collision occurs (f/) ; if he is a British subject, and the ship British, he is liable if the collision occurs in a foreign port or harbour {c) ; if he is a foreigner, and the ship British, he is liable if the collision occurs on the high seas ; if he is a British subject, and the ship British or foreign, and also, perhaps, if he is a foreigner, and the ship British, he is liable if the collision occurs out of, and the injured person dies within, England or Ireland (/) ; if he is a British subject, and the ship a foreign shij) to which he does not belong, he is liable if the collision occurs elsewhere than in the Uueen's do- minions (ff) ; and lastly, if he is a foreigner and the ship foreign, he is liable if the collision occurs within three miles of low-water mark on the shores of the United Kingdom (//). If a collision involving loss of life or serious damage to either ship is caused by the wrongful act or default of an officer holding a Board of Trade certificate, his certificate may be cancelled or suspended at a Board of Trade inquiry (?). One of the consequences of negligence causing collision is that the wrong-doer cannot recover salvage remuneration for service rendered to the ship with which he has been in collision, although the latter is also in fault for the colli- {c) See my. V. C'rirr, 10 Q. B. D. 76. (d) 17 & 18 Vict. c. 104, s. 2G7. {(') 18 & li) Vict. c. 91, .s. 21. (/) 24 & 2.5 Vict. o. 100, s. 10. This Act does not aj)i)ly to foreigners on board foreign ships: see Hef/. v. Zeuis, 1 D. &"B. C. C. 182, decided upon 9 Geo. 4, c. 31 ; and per Cockburn, C. J., in Itcff. v. A'^). And it seems that, upon the same prin- ciple, a vessel would be entitled to salvage remuneration for holding one ship off another towards which she is driving. A salvor damaged, without negligence on her own part. Tug or salvor by collision with the vessel she is assisting, may recover ^^j^jj ^j^^ against the latter [o) ; and a vessel engaged in rendering vessel she is a salvage service to another does not forfeit her right to salvage by going into collision with the other, even though there was negligence on her part such as to make her Hable in damages for the collision ( ;;) . Where two vessels were in collision, and entangled together in a position dangerous to ooth, the propeller of one being foul of the chain cabh^s of the other, a tug {/.■) Cargo ex CapeUa, L. R. 1 A. [p) The C. S. Butler and The & E. 356, followed iu T/ie Castle Baltic, L. R. 4 A. & E. 178. In liisUifi, Ad. Div. March, 1886; The Diana, 2 Asp. M. L. C. 366, 'The Ettrick, 6 P. D. 127 ; and see the owners of a ship which had The Glen(/aber, L. R. 3 A. & E. 534. been found to blame for collisian The rule is the same in America : with another ship whereby injury The Clarita, 23 Wall. 1 ; 'The Samp- was occasioned to the latter, were son, 4 Blatchf. 28. allowed to intervene for their own {I) The (Jlengaber, ubi supra. protection in a salvagre suit insti- {m) The Retriever and The Queen, tuted by third parties aifainst 2 Mar. Law Cas. O. S. 555. the iujm-ed ship, and to put iu bail (;/) 'The Va>uli/ck, 7 P. D. 42. and have the conduct of the de- (o) The Mud' Hopper, 40 L. T. fence. N. S. 462. 302 INCIDENTAL RIGHTS AND LIABILITIES. ColliHion with tow by fault of tug is breach of towage contract. General average con- tribution. whicli, by towing aliead the vessel at anchor, enabled her to slip from her anchors, and so get clear from the vessel which was foul of her, was held to be entitled to recover salvage reward from both vessels {q) . The fact that some of the owners of a ship that rendered salvage ser\dce to another were also owners of the ship whose negligence had done the mischief, and rendered the service necessary, was held not to deprive the salving ship of the right to salvage remuneration (r). Sir R. Philli- more said : — " I know of no authority for the proposition that a vessel wholly unconnected with the act of mischief is disentitled to salvage reward simply because she belongs to the same owners as the vessel that has done the mischief." If by the negligence of those on board a tug in the performance of the towage the ship in tow is damaged by collision with a third ship, or damages a third ship, and is comj)elled to make such damage good, there is a breach of the towage contract, and the tug can recover nothing in respect of the towage service (s) . And we have seen (t) that, beyond forfeiting their right to remuneration, the owners of the tug and the tug lierself, are liable to the owners of the tow for the loss. Wliere a vessel in tow is injm-ed in a collision, and has to stop and repair her damages, the tug is not entitled in a towage action to further remuneration beyond the sum agreed for towage, because she voluntarily stands by whilst the repairs are being effected, and then completes the towage («). Damage received in a colhsion by a sliip or cargo is not the subject of general average contribution ; and this is so whether the ship was in fault for the collision or not. But loss voluntarily incuiTcd for the benefit of all concerned {q) The Vandi/ck, 7 P. D.42. (r) The Gknyaher, L. R. 3 A. & E. 534. (a) The Christina, 3 W. Rob. 27. Semble, aliter where the contract is for salvage service : The C. S. Butler, L. R. 4 A. & E. 178. {t) Swpra, p. 201. [ii) The Iljemmett, 4 Asp. Mar. Law Cas. 274 ; 6 P. D. 227. INCIDENTAL RIGHTS AND 1,1 ABILITIES. 303 after and iii ooiisequonce of a collision for wliicli the ship was not in fault {x), and salvage expenses incmred under the same circumstances {//), may be recovered as general average. The owners of a ship sunk in a collision by her own fault cannot recover by way of general average con- tribution from cargo owners any part of the expense of raising the cargo (~). If a ship after collision sinks, her owners are in some Expense of places liable under local Acts to tlu; harbour authority or gunjfi^j^^^^ other public body for the expense of raising her ; and colliaion, such expense may sometimes be recovered by the autho- rities by sale of the ship and cargo {a). If a vessel wilfull}" or negligently injures a lightship, Penalty for she incurs, in addition to her liability for damages, a lil^htship penalty of 50/. (i). As to the right of the holder of a bottomry bond on Rights of freight to share in the amount of the wrong-doing ship- bottomr owner's statutory liability, see above, p. 180. bond freight. (.r) See Tlionmer v. Wildman, 3 M. k S. 482. This case was much discussed in Attuood v. Sellar, 5 Q. B. D. 286. (y) See per Brett, M. R., in The nitric/.; 6 P. D. 127; A'cmp t. Halliday, L. R. 1 Q. B. 520. But see Greer v. I'oule, o Q. B. D. 272. (2} The Ettriek; 6 P. D. 127 ; cp. Scaramanga v. Marquand, 5 Asp. M. C. 410, 506, as to the rights of the cargo o\NTier and his under- writers, supra, p. 293. («) As to the Thames, see The Ettrick, .supra; 40 & 41 Vict. c. 16 ; 20 & 21 Vict. c. 147 (Local). {h) 17 & 18 Vict. c. 104, 8. 414. The risk of collision in frecjuented waters is shown by the fact that in five years ending 31st Dec, 1881, forty-eight lightships were injured by collision ; seventy-nine were injured in the six and a-half years preceding 1887 ; an average of twelve are run down every year. Some of these collisions occur in fine weather and daylight from mere inattention. See Naut. Mag. 1882, p. 199 ; evidence before Committee on Electrical Com- munication between Lightships and the Shore (1887). ( 304 ) CHAPTER XII. PRACTICE. Service of writ out of the jiirisdic- tion. Address of writ. By whom to be served. Nphther in the Admiralty (a) nor in the Queen's Bench Division {b) can a personal action for damages, in respect of a collision occurring below low-water mark of the United Kingdom, be brought against a person not domi- ciled or ordinarily resident within the jmisdiction {c), unless the writ of summons be served within the juris- diction. In such a case, service of the writ out of the jurisdiction will not be ordered. A writ addressed to a person resident abroad, and intended to be served upon his coming Avithin the juris- diction, will not be set aside merely because it describes him as having an English address (d). A writ addressed to a foreign corporation without any further description than the style of the corporation, will be set aside {c). In an action in rem, the writ of summons was served in the manner provided by Ord. IX. r. 12. No appearance was entered, and the action came on for judgment by default under Ord. XIII. rr. 12, 13. The writ had been served by the solicitor's clerk, who made the affidavit of service. It was held that the service was valid, and that service by the marshal or his substitute was not neces- sary (/). («) Iti re Smith, 1 P. D. 300; The Vimr, 2 P. D. 29 ; The Helms- lea, 7 P. D. 57. {b) Harris v. Owners of the Fran- conia, 2 C. P. D. 173. [c) Ord. XI. r. 1, sub-s. (c). id) The Hclenslea, ubi supra. \c) The W. A. Scholten, 13 P. D. 8. (/) The Solis, 10 P. D. 62. IM.I'.ADINGS. 305 Ord. XIX. r. 28, of the Rules of the Supreme Court, 1883, is as follows : — "In actions in any Division for damage by collision (^) Preliminary between vessels, unless the Court or a judge shall otherwise order, the solicitor for the plaintiff shall, within seven days after the comniencement of the action, and the solicitor for the defendant shall, within seven days after appearance and before any pleading is delivered, file with the registrar, master, or other pi-oper officer, as the case may be, a document, to be called a preliminary act, which shall be sealed up, and shall not be opened until ordered by the Court or a judge, and which shall contain a statement of the following par- ticulars: — (a) The names of the vessels which came into colHsion, and the names of their masters ; (b) The time of the collision ; (c) The place of the collision; (d) The direction and force of the wind ; (e) The state of the weather ; (f ) The state and force of the tide ; (g) The course and sjieed of the vessel when the other was first seen ; (h) The lights (if any) carried by her; (i) The distance and bearing of the other vessel when first seen (A) ; (k) The Hghts (if any) of the other vessel which were first seen ; (1) AVTiether any Hghts of the other vessel, other than those first seen, came into view before the collision; (m) What measures were taken, and when, to avoid the colHsion; (n) The parts of each vessel which first came into contact. The Court or a judge may order the preliminary act to be opened, and the evidence to be taken thereon without its being necessary to deliver any pleadings ; but in such case, {(/) Under the former practice Rules, 1859, rr. 62 — 64. preliminary acts wito required in {h) In T/ie Goifiva, 11 P. D. 20, ''all cases of daniagi'." Ad. Ct. this was iusufticiently stated. M. X 306 PRACTICE. if eitlier j)arty intends to rely on the defence of compulsory pilotage, lie may do so, and shall give notice thereof in writing to the other party Avithin two days from the opening of the preliminary act." This enactment applies to actions for loss of life by collision under Lord Camjibell's Act ; in sucli an action preliminary acts must be filed {k) . But no preliminary act is required in an action by the owner of a ship in tow against the owner of her tug for negligent towage, whereby a collision was caused between the tow and a third ship (/). Though, in the absence of evidence that it was impossible to file a preliminary act, it was held necessary in an action by the owner of cargo on board a barge against a ship with which the barge was in collision {m) . In an action by the owners of cargo against the carrying ship for damage to cargo by collision caused by the fault of the carrying ship, no preliminary act is necessary (n) . It has been said that it will be required in an action by the owner of a ship in tow against the owner of the tug for negligent towage whereby a colKsion occurs between tug and tow (o). Object of The object of the preliminary act was explained by acts. ^'^^ Dr. Lushington in The Vortigern [p). " Preliminary acts were instituted for two reasons — to get a statement from the parties of the circumstances rccenti facto, and to j^revent the defendant from shaping his case to meet facts put forward by the plaintiff." Consequently, the Court will not allow a party before {q) or at (>•) the hearing to depart from or amend {q) his preliminary act. {k) Webster v. Manchester, Shef- Huddleston, B., in Armstrong v. Jield, and Lincolnshire Itail. Co., Gaselcc, 22 Q. B. D. 252. W. N. 1884, p. 1. («) The John Boi/nc, 3 Asp. M. [l) Armstroncj v. Gasclec, 22 Q. L. C. 341. B. D. 250. (o) Per Wills, J., iu Armstrong [m) Secretarij of State for India y. v. Gaselec, 22 Q. B. D. 250, 253. Hewctt, 6 Asp. M. C. 384. There {p) Sw. 518. had been au action in Admiralty [q] 'The Miranda, 7 P. D. 185. between the barge and the ship. (r) The Fninkland, L. R. 3 A. & This is the case referred to by E. 511 ; The J'ort if/em, Sw. 518. PLEADINGS. 307 It was 11 rule of the Admiralty Court, and tlu; rule is Proof must ijc still enforced by the Admiralty Division, that a plaintiff \aiegata. in framine: his statement of claim must state the circum- stances of the collision, so far as they are known to him (.9), with sufficient clearness and accm-aey to enable his adversary to know the case which he has to meet (;'). Where the l)laintifi''s allegations have been such as to mislead the defendant upon essential points, it was, before the Judi- cature Act, and doubtless woidd still be, held that the plaintiff is not entitled to recover. The particular acts of negligence which caused the collision must be stated in specific terms. If the plaintiff alleges that the collision was caused by tlie starboarding of the helm of the defendant ship, and the proof be that the helm was never starboarded, the plain! iff would probably fail to recover, although it is proved that his adversary's ship was in fact alone to blame (»). But the rule that proof must be secunduni allegata is enforced onh'so far as the allegata are material {x) ; in other words, so far as the non-observance of the rule has made it impossible for the defendant to meet the case brought against him. If any of the Regulations for Preventing Collisions at Sea Infringement have been infringed, it is the practice, and it would seem ^^^^^ ^^^^ i^e to be necessary (//), for the plaintiff to specify which they specifically are. In the absence of such an allegation in his pleadings it is conceived that evidence of the infringement would not be admitted [z) . But it is not essential that the plaintiff (s) As to when they are not See also The Uochung and The Lap- known, see The Srhwalhe, Sw. 521; u-ingi, 7 App. Gas. 512. The England, 5 Not. of Ca. 174. {x) The Alice and liosita, L. E. (0 The whole subject is ex- 2 P. C. 214. haustively dealt with in Williams (y) The Ebenezev, 2 W. Rob. 206, & Bruce, Admiralty Practice. 2nd 211 ; The Bothnia, Lush. 52, 54. ed. pp. 338 seq., and seeOrd. XIX. (;) In The Perim, Ad. Div. 10th r. 4. Nov., 1880, Sir J. Hannen allowed (?/) It was so held before the an amendment of the statement of Judicature Acts: The Ann, Lush. claim at the trial by inserting a 55; The Marpesia, L. R. 4 P. C. charge of breach of the " starboard 212; The J^'orih American, Sw. side"rule. Cp.77(('7-(/(/'/-/«",7Not. 358; The Jlasucll, Br. & L. 247. of Ca. 3(34, 370, where under special X2 308 PRACTICE. Defence. Judgment at law : whether it can be pleaded in Admiralty. should prove all the allegations made in his statement of claim ; if he proves the material j^art of the case alleged, it will be sufficient («). An allegation that the defendant ship was alone in fault does not prevent the plaintiff from obtaining a judgment for half his loss upon proof that both ships were in fault {b). The defendant in his defence, besides traversing all the allegations of the plaintiff he intends to deny, should state the circumstances of the collision (r) . Thus, if the defence is that the plaintiff gave him a foul berth, he must so plead. Before the Judicature Acts it was held that it was not sufficient for him simply to traverse the plaintiff's statements (d). But the plaintiff must prove his case, and where he fails to do so, he will not succeed merely because the defendant has in his defence told a story of the colli- sion which he fails to prove (c) . Where the defence is *' ine\itable accident," it is usual in terms so to plead ; but it is conceived that this is not necessary (_/). If the defence is " compulsory pilot," it is the practice, and it would seem to be necessary, for the defendant to plead it {g). Prior to the Judicature Acts it was held that a verdict and judgment in an action at law that one of two ships, B., was in fault for the collision, and that the defendants, her owners, were liable to the plaintiffs for the amount of their loss, were no bar to subsequent proceedings in Admi- ralty in rem against the ship A. by the defendants in the circumstances the defendant ship was found to blame for a failure to port which was not alleged in the pleadings. (a) The Amalia, Br. & L. 311, 314. See also The Lespatch, Lush. 98 : The Lady Ann, 7 Not. of Ca. 370 ; The Unr/land, 5 Not. of Ca. 170 ; The East Lothian, Lush. 241, 248. [h) The Aurora and The Robert Ltgram, Lush. 327, 329. [c) For the old practice, see The Virgil, 2 W. Rob. 204 ; The Iron- master, 6 Jur. N. S. 782. {d) The Whij Not, L. R. 2 A. & E. 265. [e] See The East Lothian, Lush. 241. (/) See The E. Z., 33 L. J. Ad. 200 ; The England, 5 Not. of Ca. 170, 174. [g) For the old practice, see The Canadian, 1 W. Rob. 343; The Northampton, 1 Sp. E. & A. 155, n. ; The Alhambra, Br. & L. 286 ; The European, Williams and Bruce, 2nd ed. 352, noto [t). PLEADINGS EVIDENCE. 309 comniou luw action ; and tliat tlie judgment at laAV could not be pleaded or n-iven in evidence in the Admiralty action (//). It is diilicult to reconcile this decision Avitli the principle that a decision in the presence of the parties upon the merits is ren judicata ; a principle which seems to ap]»ly whether the judgment is at law or in Admiralty pro- ceedings /;/ foti. Where a defendant at law pleaded a decree of the Admiralty Court upon the merits in his favour, it was held that the plea was bad, because it did not show tliat the Admiralty Court had jurisdiction (/). As to the effect in the Coui'ts of this country of a Forei^m foreign judgment in action relating to the collision, see ""^ °'"^"" ' above, p. 224. The following points have been decided with regard to Evidence, evidence admissible in collision actions. Notwithstanding the terms of 17 & 18 Viet. c. 104, L"&-'*- ss. 282, 285, the official log is not evidence for the ship (A*), nor is the shiji's log, though the mate Avho wrote it is dead(/). But both these documents often afford valuable evideuce against the ship {in) . The result of proceedings at an inquiry under the Mer- Result of pro- chant Shipping Acts {ji) ; at a naval com-t martial (o) ; at inquiry* &c. an inquuy by a pilotage authority {p) ; or at a coroner's inquest [cj)^ — is ii'relevant in a collision action. (A) The Clarence, 1 Sp. E. & A. jecited to, appears to have been 200 ; but see per Kniji:ht-Bruue, used as evidence for the sliip. L. J., 1 Sp. E. & A. "iO!), n. ; and [m) See observations by West- see The Ann and Mur;/, 2 W. Rob. bury, C, in The Singapore, 189 ; semble, the case referred to in supra, as to tlie value of the ship's The Clarence. See also The Si/lph, log- as evidence against the ship, L. R. 2 A. & E. 24 ; The Antelope, and as to alterations discrediting L. R. 4 A. & E. 33; The Due the loy. ■'o- Chccchi, L. R. 4 A. & E. 3o, n. {n) The Mumjertun, S\v. 120 ; The (J) Harris v. Jf'il/is, 15 C. B. Citi/ of Londun, '$,\\. 'lAh. 710. (o) II. M.S. Swallou; Sw. 30; (k) The Europa, 13 Jiu-. 8')G ; the report of a naval officer to the The Malta, 2 Hag-. 158, note ; The Lords of the Admiralty is privi- Earl of Dumfries (engineer's log), leged as a State document, and no 10 P. D. 31. order to produce it will be made. (0 The Uenni Coxon, 3P. D. loG. [p) The Lord Seaton, 2 W. Rob. In The Singapore, L. R. 1 P. C. 391. 378. the ship's log, though ob- (//) The Mangerlon, Sw. 120. 310 PllACTICE. Protest ; deposition before receiver of -n-reck. Coastguard and lightship logs. Statements by master ; by seamen, and others. Letter by master to owner. A protest {)•), and a deposition made before a receiver of wreck, though the master has died since making it (-s'), are not admissible in evidence, except in cross-examination for the purpose of contradicting a witness w^ho denies or does not admit liaving made them. It seems that the original depositions taken before the receiver must be produced, and that copies cannot be put in {f). Copies of entries in the official journals kept by coastguardsmen, and copies of entries in lighthouse and lightship logs relating to the weather, are usually admitted in the Admiralty Division uj)on production of an affidavit by the proper officer {u). Statements by the master as to matters in issue are admitted to prove the facts stated against the owner (x) ; but not statements by other officers, by seamen (//), or by the pilot (z) , though statements by seamen and others on board, made at the moment of collision, have in some cases been admitted as part of the res gestce (a) . In an action by cargo-owner against shipowner for loss of cargo by stranding, a letter written by the master to (;•) Christian v. Coonibe, 2 Esp. 489 ; T/te Ljndica, 23 L. T. N. S. 474 ; The Emma, 2 W. Rob. 315 ; The Meclwig, 1 Sp. E. & A. 19. As to the value of such evidence, see The Osmanli, 7 Not. of Cas. 507, 510. (.s) The Liltle Lizzie, L. R. 3 A. & E. 56; Nothanl v. Temper, 17 C. B. N. S. 39 ; The Henry Coxon, ubi sup. As to inspection of copies of these depositions furnished to the adverse party by the Board of Trade : The Palermo, 9 P. D. 6. [t) It was so held by Butt, J., in The liisca, 25th March, 1886; The Benayo, 29th March, 1886; and {semblc) by Dr. Lnshington in The Emperor and The Zephyr, 12 W. R. 890; The Oscar, 12 W. R. 872 ; but sec The Oscar, 10 L. T. N. S. 789, differently reported. See also^^r Tindal, C. J., Bastard V. Smith, 10 A. k E. 213, 214; Davies v. Lavies, 9 C. & P. 252 Hiyhfield v. Peake, M. & M. 109 Burnand v. Nerot, 1 C. & P. 578 Ewer V. Ambrose, 4 B. & C. 25 ; 1 Roscoe, N. P. 15th ed. 168, 169. («) An examined copy is suffi- cient : The Maria des Lores, Br. & L. 27 ; The Catherina Maria, L. R. 1 A. & E. 53. [x) The Midhlhian, 15 Jur. 806; The Manchester, 1 W. Rob. 63 ; The Europe, 13 Jur. 856; The Actceon, 1 Sp. E. & A. 176 ; The Sohvay, 10 P D. 137. And so in America : The Potomac, 8 "Wall, 590. (y) The Lord Seaton, 2 W. Rob. 391, 393; The Eoyle, Lush. 10; and see The Great Eastern, Holt, 169. [z) The Lord Seaton, 2 W. Rob. 391, 393 ; The Schwalbe, Sw. 521. («) The Schivalbc, Sw. 521 ; The Mellona, 10 Jur. 992. EVIDENCi: — TXTKRROf; ATORTEi?. ;ui the shipowner, detailing the facts of the stranding, was admitted as evidence of those facts (b) . Evidence in a previous action for the same collision, but Evidence in between different parties, is not admissible in the subse- a^tillu"** quent action (c). But where, after judgment in an action by the owner of ship A. against the owner of ship B., the latter sued the former in a fresh action for the same colli- sion, evidence in the first action was allowed to be read in the subsequent action {d) . As to the mode of provmg the Kegulations for Pre- Regulations; venting Collisions at Sea, see 25 & 26 Vict. c. 63, s. 26 ^"^^ P^"^''^'i- {i»fra, p. 341). AVhere the defence raised is that of " compulsory pilot," Proof of and the defendant has reason to think that the pilot will pSg^'''^ be a hostile witness upon the facts of the collision, the )vhere pilot proper com-se for him to take is to subpoena the pilot to * produce his Kcence, and to be pro\dded with evidence iden- tifying him with the person named in the licence (e) . There was at one time a doubt whether, in a collision Interroga- action, interrogatories with respect to matters stated in the *°"^^- preliminary acts and the other circumstances of the colli- sion, could be administered. It w'as decided that such interrogatories are admissible (./'). They are, however, seldom used in practice. In answering interrogatories, a defendant in a colKsiou Answering action must answer as to matters touching the collision "it^frroga- ° tones, which are in the knowledge of their servants or agents, the master and crew (g). It was formerly the practice, in the Court of Admiralt}', "WTio to'begin where the plaintiff's ship was at anchor, or where the sole action. ^^°^ (A) T/ie Solway, 10 P. D. 137 see The Neptune the Second, 1 Dods 467, 469. (c) The William Eittt, Lush. 25 The Demetrius, L. R. 3 A. & E 523. [d) The North American, Lush 80 ; The lioscndale, 2 Pritch. Ad Dig. (cd. 1865) 591; see Ord. XXXVII. r. 3, and notes in An- nual Practice. (e) See above, p. 239. (/) The Biola, 34 L. T. N.S. 135. \(j) The Radnorshire, 5 P. D. 172; The Isle of Cyprus, 15 P. D. 134 (crew of plaintiff's ship drowned). 312 PRACTICE. Order to inspect. Nautical assessors : evidence of experts not admissible. Function of assessors. defence was inevitable accident, for tlie defendant to begin. This practice has been changed, and the rule now is that plaintiff shall in all cases begin {h) ; or, at least, in all cases where (as, semhie, is always the case) the onus of proof is upon him (/). Power is given to any party to an Admu^alty action to apply for an order for inspection of any ship or other personal or real property, the inspection of which may be material to the issue of the action (A-). This power was exercised, in The Magnet, with reference to ships' lights (/); also in The Germania {m). In a recent case (w), it was held that the order will not be made where the party appl^dng has an opportiuiity of proving the facts by evi- dence in the ordinary way. In the Court of Appeal and in the Admiralty Division, nautical assessors advise the Court upon questions of sea- manship. In the Queen's Bench Division, assessors are not, in practice, but may be (o), called in. In the Queen's Bench Division, matters of seamanship) may be proved by experts ; in Admiralty, and, it seems, in any Court where assessors are present to advise the Com't, such evidence is not admissible {p). In a recent case, evidence directed to show what was the usual mode of navigating ships in the entrance to the Mersey was held to be inadmissible in the Admiralty Division {q). The function of the assessors is not to decide questions of (70 See The Otter, L. R. 4 A. & E. 203 ; The Benmore, L. R., 4 A. & E. 132. (i) See supra, p. 30, as to onus of proof. {k) 24 Vict. c. 10, s. 18; and see now Ord. L. r. 3, of the R. S. C. 1883. {I) L. E. 4 A. &E. 417, 428. \m) 3 M. L. C. 0. S. 140, 269. (w) The Victor Covacevilch, 10 P. D. 40. (o) 36 & 37 Vict. c. 6(), s. 5G. [p) The Gazelle, 1 W. Rob. 471 ; The Ann and Mary, 2 W.Rob. 189, 196 ; The Nu, 1 Sp. E. & A. 184 ; The Sir Robert Peel, 4 Asp. M. L. C. 321 ; The Earl Spencer, L. R. 4 A. & E. 431 ; The Assyrian, 63 L. T. N. S. 91. ((?) The Kirhi Rail, 8 P. D. 71. But in The Velocity, L. R. 3 P. C. 44, such evidence (with reference to the Thames) was admitted. See also The Andalnsian, 2 P. D. 231, as to proof of usual precautions at a launch in the Mersey. It seems that the Court will take the opinion of the assessors upon such points : 'llic Cambria, infra, 467. ASSESSORS SUCCESSIAK ACTIONS. 31 3 fact arisiiif^ in tlio case, but to advise the Court upon nautical matters (r). The decision of the case rests entirely with th(; judge. Even in purely nautical matters he is not boimd to follow tlie advice of his assessors, if it does not agree with his own opinion (s), though their advice will be rarely questioned (f). The advice of the Trinity Brethren in the Admiralty Division upon a question of pure seaman- ship does not conclude the case, and may give rise to an appeal (ii). If the Trinity Brethren differ in opinion, the Court has on more than one occasion obtained the opinion of one or more of the other Brethren {v). In a case where the judge differed in opinion from the Trinity Brethren, and they reduced their views and the reasons for them to writing, and at his request preseiwed them in case the Court of Apj)eal should call for them, that Court refused to order the Admiralty registrar to deliver to the appel- . lants a copy of those reasons (x) . A plaintiff who has been unsuccessful in an action at Plaintiff un- law tried upon the merits (//), or who has received pay- successful at '■ \.' / 7 ^ ^ s. J law, or whose ment of the sum for which he obtained judgment (s), judu-meutls cannot afterwards proceed against the ship in Admiralty cannot a'fter- for the same collision ; nor would he be allowed to sue at wards sue in law and in Admiralty at the same time for the same -^ ' ' ^ He cannot sue collision {a) . at law and in Admiralty at ()•) See The Hunmbal, L. R. 2 {u) See The Falkland, Br. & L. ^^°^^ '^™'^- A. k E. 56, as to the practice of 204. the judge in taking the oi)iuiou of (r) The Magna Charta, 1 Asp. his assessors. M. L. C. 153 ; 'The Frieuds' Good- (.v) See The Magna Charta, 1 Asp. will and The Peggy, mtpra, p. 151. M. L. C. 153; The Aid, 6 P. D. (.<) The Banshee, 6 Asp. M. C. 84; The Ben/l, 9 P. D. 137, 141. 130. Both Dr. Liishington {7 Not. of (y) See The Griefsuald, Sw. 430, Cas. 354), and a present judge of 435. the Admiralty Division, have taken {£) The Orient, L. R. 3 P. C. 696. this view. [a) The John ami Mary, Sw. 471. [t) " It would be impertinent in a In this respect the rights of a person judge not to consider as almost entitled to a maritime lien differs binding upon him the opinion of from those of a mortgagee, who the nautical gentlemen who, having may pursue all his remedies at ten times his own skill, are called once: Fisher on Mortgages, 3rd cd. in to assist him." iV>- Brett, M.R., 321. The Ilnyl, 9 P. P. 137, 141. 314 PRACTICE. Consolidation of actions : cross actions. Consolida- tion : actions by different plaintiffs against the same defen- dant. In order to avoid multiplicity of actions, where the owners of two ships that have been in collision institute separate or cross actions against each other, the Court will consolidate the two actions {b), or by consent the two actions may be heard upon the same evidence. Actions by different plaintiffs in respect of the same collision against the same ship or the same defendants may be consolidated in Admiralty, even as against an unwilling defendant, or at the instance of the defendant as against an unwilling plaintiff {c) . And where two ships belonging to the same owners, one being disabled and in tow of the other, fouled a third ship, several actions by the owners and by the master and crew of the third ship against the two ships that fouled her were consolidated (d). This practice of consolidating actions, which appears to have been peculiar to the Court of Admiralty, has been continued since the Judicature Acts by the Admiralty Division. Thus, recently an action by the owner of ship A. and an action by the owner of cargo on board A. against the owner of ship B., with which A. had been in collision, were consolidated {e). Where the actions are in jjcrsonani and in one of them service of the writ has not been effected, consolidation will not be ordered (/'). Although it has the power to force consolidation upon imwilling parties, the present practice of the Admiralty Division is not to exercise that power {g) ; but a plaintiff who unreasonably objected to consolidation and afterwards {b) Jud.Act, 1873,8. 24, sub-8.7. See Thomson v. 8. £. Rail. Co., 9 Q. B. D. 320. So 24 Vict. c. 10, s. 34, gave the Admiralty Court the same power. [c) The William Hnti, Lush. 25 ; The Melpomene, L. E.. 4 A. & E. 129 ; The Falk, 4 Asp. M. L. C. 592. The Cumberland, 5 L. T. N. S. 496. {d) The American and The Syria, L. R. 4 A. &E. 226. [e) The Hector, 8 P. D As to the effect of 24 Vict, s. 34, see The Demetrius, L A. & E. 523. (/) The Helenslea, 7 P. D. ... {(j) The Jacob Landstrom, 4 P. D. 191 ; The Vildosala, 4 Asp. M. L. C. 228 ; The Tasithea, 5 P. D. 5 ; and see The William Jfutt, tibi supra. 218. c. 10, R. 3 57. COXSOT.IDVTION I.VINO BY STAY. 315 succeeded in his action, has been ordered to bear the costs occasioned by his objecting to consolidation {//). Tlie power of consolidating actions above referred to is wider than that conferred upon the several Divisions of the High Court of Judicature by Ord. XLIX. r. S, wliich is exerciseable only at the instance of defendants (/). The practice which is adopted in other Divisions of trying one of several actions by different plaintiffs against the same defendants as a test action (/r) does not appear to have been ever in use in Admiralty. Where the rights and liabilities of the parties can bo Plaintiff lying fairly settled in the usual way upon claim and counterclaim, iudf'me^riu a party who, before bringing his action, awaits the decision other action. of an action in respect of the same collision in which he is defendant, does so at the risk of having to pay costs (/). Where cross actions were tried, before juries in a common law court, with the result that contradictory verdicts were obtained, and each party applied for a new trial, it was said by the Privy Council that if the evidence in each action was such that a jury might reasonably find either way, the two actions ought to be tried again, not separately, but together (in) . Where there are cross actions or action and counterclaim, Cross actions: and the defendant ship in the principal action is an-ested, arrestl'J the if the plaintiff ship has been lost or for some other reason o'^^"- not : cannot be arrested, her owner will not be permitted to ceedim'-s. prosecute his action until he gives security for the amount claimed against him in the cross action {ii), or counter- claim (o). This rule has been applied where the parties (k) The Lord Strathnairn, cited (/) The Calijpno, Sw. 28 ; The Williams & Bruce, 2nd cd. 3S 7; and Bmidalbunc, 7 P. D. 186; The see The Xicolina, 2 W. Hob. 17o ; Julia Fisher, 2 P. D. 11-5. The liartlrij, Sw. 19S. (in) AvHraHan Steam Navigation (i) Annual Practice, Ord. XLIX. Co. v. Smith ^- Sons, The Birksgate r. 8, note ; Archb. Pr. 407 sf(7 ; 2 and 77ie.B«?rrtAoo/, 14App.Cas. 321, Chitty, Pr. 1085 seq. 324. (/•)'See ./wos V. Chadwick,^ Ch. («) 24 Vict. c. 10, s. 34; The T). 867 ; JUii/ictt V. Lord Bun/, b Charkieh, L. R. 4 A. & E. 120. C. P. I). 339. ■ [o) The Breadalhanc, 7 P. D. 186 ; 316 PRACTICE. Cross actions : one in Coimty Court, the other in Supreme Court : trans- fer of County Court action. Separate actions for damage to property, and for injury to person. Action in personam against pilot. are foreigners resident abroad (;>), against a British subject resident in England (q), and against a foreign sovereign whose slii}) was privileged from arrest (r). The Act 24 Yict. c. 10, s. 34, which enables the Court to stay pro- ceedings in this case applies only to actions in rem ; the Avording of the section shows that it has no application to actions hi persoinon (.s). ^Vliere actions in respect of the same collision are pending in the Admiralty Division and in a County Court at the same time, the practice is for the latter Court upon application in that behalf being made to it under 31 & 32 Yict. c. 71, s. 6 (County Courts Admiralty Jm-isdiction Act, 1808), to order that the County Court action be transferred to the Admiralty Division. The conduct of the consolidated action will usually be given to the plaintiff in the action which was first instituted (/). Damage to ship or goods and injury to person may be sued for in separate actions though caused by the same negligent act, in the same collision, at the same time, and to the same person (?r). Before the Judicature Acts, the Court of Admiralty refused to entertain an action i)i personam against a pilot (.r) ; but since the passing of those Acts, there is no objection on the ground of jurisdiction to bringing such an action in the Admiralty Division. Accordingly the Court has, in the absence of objection by the defendant, entertained an action in rem in which the pilot has been added as a de- fendant {y). But it has been held (c), that the Court will The Julia Fisher, 2 P. D. 11.5 ; The NewbatUe, 10 P. D. 33. Cf. The Carnarvon Cantle, 3 Asp. M. C. 607, and disting. The Alne Holme ('2nd action), 4 ibid. .')92. (/;) The (Jharkieli, ubi nupra ; The Julia Fisher, ubi nupra. {/j) The Cameo, Lusli. 408. \r] The Newballle, 10 P. D. 33. (s) See Tlie Amazon, 36 L. J. Ad. 4. {t) The Never Despair, 9 P. D. 34 ; The Lnmaeolata Concezione, 8 P. D. 34. See also The Cosmopolitan, ibid. 3o ; 'The Jijorn, ib. 36, n. {a) Mrunsden v. Ilunifreij, 11 Q. B. D. 712; 14 Q. B. D. 141. (.r) The Urania, 10 W. R. 97 ; The Alexandria, L. R. 3 A. & E. 574 ; Fluu-cr v. Bradley, 44 L. J. Ex. 1. {y) See Williams & Bruce, Ad. Pr. 2nd ed. 94, 95, note(r). (z) The Bowe-sfeld, 5 Asp. M. L. C. 265. TRANSFER — SUPPLEMENTAL ACTION. 317 not, under Ord. XVI. r. 11, add parties so as to turn an action in rem into an action in personam ; and it does not appear that the pilot has ever been added as a defendant except by consent. It appears, however, from the records of the Court, that in tlie last century the master was commonly sued together with the ship. By 6 & 7 Will. IV. c. 100 (local and personal), s. 8, it Action apainst is provided that no action in any of His Majesty's Courts pj[|^^^.t n *^^^™ of Law shall be brought against the Dublin Steam Packet notice. Company unless a month's notice in writing shall have been given to the company. It was held in The Long- ford {a) , ihoi this enactment did not apply to an action in rem. Where proceedings had been taken in ron in Admiralty Action at law and the amount realized by the sale of the ship was not bTroS.^*^ sufficient to recompense the plaintiff, it was held, pre- i"o'^ «f' rem, viously to the Judicature Acts, that he could bring his action at law for the residue of the loss (6). It would seem that he can now bring such supplemental action against the shipowner in person either in the Admiralty or in the Queen's Bench Division. Vice versa an action may be brought in rem for damages which owing to the insol- vency of the defendant, could not be recovered at law (c). But to an action in rem, proceedings in personam against the shipowner for the like purpose cannot be engrafted (r/) . Nor, if the ship has been released on bail which proves to be insufficient, can a subsequent action in personam be instituted in the Admiralty Division (e). (a) 14 P. D. 34, following The metrius, 41 L. J. Ad. 69; The Mullim/ar, 1 Asp. M. L. C. 2.52. S:/fp/t, L. R. 2 A. & E. 24 ; The [h) Xelson V. Cotich, 15 C. B. N. Cvlla, 13 P. D. 82. S. 99; The B(Ad Bttcckiujh, 7 Moo. {d) The Hope. 1 W. Eob. 154; P. C. C. 267 ; The Orient, L. R. 3 The Bowe^Jield, 5 Awp. M. L. C. P. C. 696, 702 ; The Fet, 20 L. T. 265. In the last century the ship N. S. 961; The Zephyr, 11 L. T. and her master were commonly N. S. 351. See also The Sylph, sued together. See Assignation L. R. 2 A. & E. 24. Books of the Admiralty Court. (c) The John and Mary, Sw. Ad. («) The Kalamazoo, 15 Jur. 885. 471 ; The Bengal, ib. 468 ; The Be- 318 PRACTICE. Re -arrest cf ship to secure costs. Owners resi- dent abroad ; no service of ■writ. Action for loss of life, &c., none before Board of Trade inquiry. Damages for loss of life, no action in rem. Where the shipowner appeared and defended the action, it was held that he could, by re-arrest of the ship, be com- pelled to j)ay costs (_/'), beyond the value of the ship and freight and the amount of his bail bond. Whether an excess of damages can be so recovered is doubtful {g). Against owners resident abroad, where the collision occiu's beyond British jurisdiction, and service of the writ cannot be efPected within the jurisdiction, no personal action for damages can be entertained (//). Where a collision is accompanied by loss of life or per- sonal injury, no action can be brought against the owner of a British ship in resjoect of such loss of life or personal injury (/) until the Board of Trade has either completed or refused to hold an inquiry under the provisions of the Merchant Shipping Act, 1854. Where no inquiry has been instituted within one month after service on the Board of Trade by the plaintiii of his desire to bring such action, the Board shall be deemed to have refused to hold an inquiry. It appears that this enactment does not apply to foreign ships (k) . No action can be brought in rem for loss of life under Lord Campbell's Act. The conflict of authority (/) which existed for many years upon this point has been lately set at rest by the decision of the House of Lords in T//e Vera Cruz (No. 2) {m). (/) The John L hmn, 1 W. Rob. 159; The Freedom. , L. R . 3 A. & E. 495. {9) See The Kalamazoo, 15 Jur. 885; The Zephyr, 11 L. T. N. S. 351 ; The Fi'eedom, L. R. 3 A. &E. 495. (A) See above p. 211. (i) This appears to be the mean- ing of 17 & 18 Vict. c. 104, s. 512, ' ' no person shall be entitled to bring any action or institute any suit or other legal proceeding." But the words are wide enough to inchide actions for damage to pro- perty. (/■) Sec The Vera Cruz (No. 1), 9 P. D. 88. (0 See The Sylph, L. R. 2 A. & E. 24 ; The Guldfaxe, ib. 325 ; The Beta, L. R. 2 P. C. 447 ; The Boro- dino, 5 L. T. N. S. 291 ; and contra, Smith V. Broivn, L. R. 6 Q. B. 729 ; Simpson V. Blues, L. R. 7 C. P. 290. In The Franconia, 2 P. D. 163, the Court of Appeal was equally divided. See also Tajflor V. Lewar, 5 B. & S. 58, and the observations of Sir R. Pliillimore on that case, L. R. 2 A. & E, 329. [m) 9P. D.9G; 10 App. Cas. 59. LOSS OF LIKE THIRD PARTY — WRONG ARRK^'r. 319 Wliere the defendant, in a collision uetion, claims to be Tliird party- entitled to recover from a thii-d party the damages for ^^^^'' which judgment may be given against him, attempts have been made to bring into the action such third party under Ord. XVI. rr. 48 ef seq., of the Eules of the Supreme Court. Thus, a ship in tow sued by a ship at anchor which she had fouled, sought to bring in the tug-owners as third parties, against whom they were entitled to in- demnity {)/). The judge refused to entertain the question of the liability of the tug-owners. The Rules in question apply only where the right to contribution or indemnity is founded upon contract, express or implied ; they do not apply wliere the right of the defendant is to recover against a person, not a party to the principal action, dam- ages to the same amount as the damages awarded in the action (o) . It has occurred in some cases that the plaintiff has Arrest of _ failed to identify the ship sued with the ship with which his own has been in collision. So, where, in consequence of a collision between A. and 13., a third ship, C, is injured, C. may be in a difTiculty as to which ship to sue. It seems that if the wrong ship is arrested, she would, except in special circumstances, be entitled to costs, and, in flagrant cases, to damages and costs {p), or to her expense of procuring bail (q). In the absence, however, of malice and gross negligence on the part of the plaintiff, damages and even costs have not in all cases been given to the ship wrongly arrested (r). wrong ship- Thc law in Canada seems to be the same, .see Monaghan v. Horn, The Garland, 7 Duval's Sup. Ct. Rep. Canada, 409 ; 40 Vict. c. 21 (Canada); 26 & 27 Vict. c. 10 (Vice Ad. Ct. Act), ss. 7. 13. («) The Bianca, 8 P. D. 91 ; see also The Cart.sbtmi, 5 P. D. 35. ('j) Spe/liT\. Bristol Sleam Xavi- gation Co., 13 Q. B. D. 96 ; Carshore V. Xurlh Eastern Rail. Co., 29 Ch. D. 344. [p) The Evaiigelismos, Sw. 378 ; 12 Moo. P. C. C. 3.52; The Aetivc, 5 L. T. N. S. 773 ; The Strathnaver, 1 App. Cas. 58 ; The Cheshire Witch, Br. & L. 362 ; The Catheart, L. R. 1 A. & E. 314, 333; The I'olant, Br. &: L. 321 ; The Glasgow, Sw. 145 ; The Victor Lush, 72 ; The F.gerateia, 38 L. J. Ad. 4 0. '{q) The Colling rove, 10 P. D. 158. (/•) The Evangelismos, Sw. 378 ; The Strathnaver, 1 App. Cas. 58. 320 PRACTICE. Actions for Bj 14 & 15 Yict. c. 107, s. 514 (.s), jurisdiction was given liability. ^0 the High Court of Chancery in England or Ireland, and to the Court of Session in Scotland, and in any British possession to any competent Court, in proceedings by a shipowner to limit his liability under the Act, to determine the amount of such liability, and to distribute the sum representiog the amount of such liability amongst the several claimants ; and further, to stay actions pending in respect of the collision. By 24 Yict. c. 10, s. 13, the same jurisdiction was conferred upon the Court of Ad- miralty, but only where the ship or the proceeds thereof are under arrest. Under the last-mentioned Act, it was held, that where the sbip had sunk, and a sum of money had, after action brought, been paid into Court in lieu of bail, the Court of Admiralty had no jurisdiction to enter- tain the action for limitation of liability (/) . By subse- quent statutes, 23 & 24 Vict. c. 126, s. 35 ; 36 & 37 Yict. c. 66, ss. 16, 76 ; 30 & 31 Yict. c. 114, s. 36 (Ireland), the jurisdiction of the High Court of Chancery touching actions for limitation of liability has been vested in the High Court of Justice, and the Admu-alty Division now entertains actions for limitation of liability, whether the ship or its proceeds are under arrest or not, its jurisdiction being co-extensive with that of the Court of Chancery, and not limited to that of the Court of Admiralty (u). The benefit of the enactment limiting the shipowner's liability is ordinarily obtained by instituting an action in which the plaintiff claims a declaration by the Court to the effect that the plaintiff and his vessel are not answer- able in damages to an amount exceeding, as the case may be, 8/. or 15/. per ton of the ship's tonnage. Upon pay- ment into Court of the 8/. per ton and interest at 41. per (s) The previous enactment on app. tii^;?. 287. See also The North- the subject was 53 Geo. 3, c. 159, umhria, L. E.. 3 A. & E. 24. s. 7. {u) T/icFo.scolino, 5 Aap. M.li.C. {t) James v. London and S. TF. 420. Jiail. Co., L. II. 7 Ex. 187 ; on ACTION FOR LIMITATION OF LIABILITY. 321 cent, from tlio date of tlio collision ; and in case of loss of life or personal injury, upon payment into Court, or bail being given, for the additional amount up to 15/. per ton, or such smaller sum as the Court specifies ; and upon payment into Court also of the costs of actions already instituted against the plaintiff in respect of the collision, the Court will make the declaration claimed, and there- upon all actions in respect of the collision for loss of life or injury to ship, cargo, or persons on ])oard, will be stayed (./•) . The benefit of the statutory limitation of liability may Limited also be claimed by way of defence or counterclaim in the ^'g claimed in collision action {>/). defence. The plaintiff, in an action for limitation of liability, is Costs of required to pay the costs of the action, other than costs action, occasioned by disputes between rival claimants to the fund, and also the costs of actions stayed at liis request (s). Where the defendant raises and fails upon special issues, he will have to bear the costs of such issues {a) . The practice of the Admiralty Division in actions for Evidence in limitation of liability, where no special defence is raised, is actions by for the e\ddence to be taken by affidavit. affidavit. There was formerly doubt as to whether, in an action for limitation of liability, the plaintiff must admit that his vessel was in fault (/>). By the present practice of the Admiralty Division it appears that such an admission is not necessary (c) , though it is usual. (.r) For details of practice in these actions, see Williams «k Bruce, Adm-Pr. 2nded. pp. 37'2-83. ((/) See T/if Chitlia, 4o L. J. Ad. 108 ; Vahlbcrg v. Yoiwy, 45 L. J. C. P. 783. But see James v. Lon- don S; S. 77'. E>j. Co., L. R. 7 Ex. 187 ; lb. 287. (;) African Steamship Co. v. Swanzij, 2 K. & J. 660 ; The Em- pusa, P. D. 6. («) 27te Empusa, o P. D. 6 ; The V'arkicorth, 9 P. D. 20, 145. M. {b) The Amalia, Br. & L. 151 ; mil V. Andiis, 1 K. & J. 263; James v. London iSi- S. TF. Jii/. Co., L. R. 7 Ex. 187: ^7^. 287. In Bill V. Andtis the bill was not dis- missed for want of jurisdiction, but the injunction to restrain a particular action was refused ; see per Willes and Blackburn, JJ., L. R. 7 Ex. 291, 295. (f) The Sisters, 1 P. D. 281 ; and see The Amalia, Br. k. L. lol. The latter decision was, however, Y 322 TRACTICE. Cargo-owiier All agreement between the shipowners that both ships, tiou aetiou ' A. and B., were in fault for the collision does not prevent raise question ^]^g owner of carffo Oil board one of them, B., from alleg-ing, -whether one , _ o ' ' . . " or both ships ill ail action by the owner of the other, A., to limit his liability, that A. was alone in fault ; and he is entitled to an issue to decide that question {(/). Transfer of Where the owners of a ship found alone to blame for a Queen's collision had obtained in the Admiralty Division a judg- Be_nchto nient limiting their liability, an action pending in the Division, after Queen's Bench Division for damages for personal injuries limifin^^ Sustained in the collision was transferred to the Admiralty liability. Division (e) . Proof against In an action (A) and counterclaim for a collision between 1 1 -PI. ' estopiDel.' ^^"' BeUcairn and Britannia, a judgment by consent was made dismissing action and counterclaim. Subsequently owners of cargo on board TJie Britannia brought their action (B) against TJie Bellcairn. In this action both ships were found to be in faidt. The Britannia owners then instituted an action (C) for limitation of their liability, and obtained the usual judgment. Thereupon the owners of The Bellcairn, having, with the consent of The Britannia owners, induced the assistant registrar to rescind the judgment by consent in action (A), sought to claim for damage to The Bellcairn against the fund paid into Court in tlie limitation action (C) in competition with the cargo owners. It was held that the rescission of the judgment in action (A) was ultra tires, that The Bellcairn owners were estopped from bringing any further action against The Britannia, and that they could not claim against the fund in Court (/), But the case is different where the agreement entered into as to the first action (A) results in a discontinuance of that action. In such a case one of the parties is not estopped from asserting a claim doubted in 77bject of the plaintiff in the second action was to share pan' prmii with the cargo owners in the fund to which the shipowners' lial^ility was limited. There are contained in the Merchant Shipping Act, Proceedings T i T- i. 1 W Board ot 1854 (/), elaborate provisions as to proceedings to be taken Xrade for loss by the Board of Trade for the recovery of a limited amount of life. of damages for loss of life and personal injiirt/ suffered in a collision. This enactment, which was intended for the pro- tection of emigrants and the poorer class of passengers in crowded ships, is seldom made use of (A-), as it has not been found to work satisfactorily (/). It is the practice in Admiralty to refer all questions as Damaovs to the amount of damages to the registrar, assisted by rejtiarand merchants ()ii) ; but where the question is raised by the merchants ; pleadings, it is in the discretion of the Court to decide at consequential the hearing of the action whether a particular item of loss J^Xfided'a^ arising after the collision is recoverable as damages in the the hearing. action. {ff) The AfdamViu, Owners of the after the passing of the Act. Carffo of The Kronprinz v. Oxoiers {I) As to the amoimt recoverable of the Kronprinz, 11 P. T). 40; 12 in these proceedings, see above App. Cas. 250. p. 175. (/() The A I >w irolme {first &ci\ozi), {»i) This is the practice in ae- 4 Asp. M. C. 593. tions for damage to cargo under {i) 17 & 18 Vict. c. 104, ss. 507 24 Vict. c. 10, s. G, as well as in 513. damage actions: The tSt. Cloud, (/■) It has been used once only, Br. & L. 4. in the case of The John, shortly y2 324 PRACTICE. Lord Camp- bell's Act : assessment of damages by jury. Surety in Admiralty bond may re- cover against co-owner. Master's lia- bility on bond to prevent arrest of sliip abroad. lu exercising its discretion, the Court will be guided bj the consideration whether the matter is one which involves questions of nautical skill, and can be dealt with better by the Court and its nautical assessors than hy the registrar and merchants {)i). Where an action under Lord Campbell's Act for damages was instituted in the Admiralty Division, and no application for a transfer of the action to the Queen's Bench Division having been made, judgment was given for the plaintiffs upon default of pleading by the defen- dants, it was held, by Sir J. Hannen, that the plaintiffs were entitled to have the amount of the damages assessed by a jury in accordance with the terms of Lord Campbell's Act(o). Where a part owner, without the knowledge of his co-owner, executed a bond to obtain the release of his ship from arrest in a damage action, and subsequently became bankrupt, it was held that a surety who had been compelled to pay the amount of the bond could recover against the co-owner (p). The master of a vessel which, by the master's fault, had been in collision with another in a foreign port, in order to prevent her arrest, and in the interest of her owners, gave a bond in the names of himself and the shipowners to cover the damage to the other ship. In an action by the master against the ship for wages and disbursements, he claimed the amount of the penalty of the bond, and ■also the sum paid by him for repairs to his ship rendered necessary by the collision. It was held that he was not entitled, as against mortgagees of the ship, to have paid into Court the amount of the penalty of the bond so as to meet claims against him in respect thereof {q). («) ne Maid of Kent, G P. D. 178. (o) The Onrell, 13 P. D. 80. \p) Barker v. llUjldey, 11 W. R. 968. {q) The limerick, 1 P. D. 411, reversing the Court below, S. C, 1 P. D. 292. ADMIRAT,TY .lURISmCTlON OF IITOTI fOURT. -32- of Justice. The jurisdiction of the Coiu-ts of this country in respect Collisions of collisions on the high seas, and in the territorial waters y^ety^'eeu of foreign countries, and also where one or both the ships foreigTi Hhips. are foreign, is considered in a former chapter {>•). The Admiralty jurisdiction of the High Court of Justice Admiralty is co-extensive, geograpliically, with that of the late High Hif^h Court Coui't of Admiralty ; the jurisdiction of the latter Coui't having, by the Judicature Act, 1873, been transferred to the High Court of Justice (-s). The jurisdiction of the Court of Admiralty extended to all collisions upon the high seas [t], and upon tidal waters not within the body of a county (/^). By 3 Sc 4 Vict. c. GO, s. 6, its jurisdiction was extended to (amongst other things) claims for damage received by " any ship or sea-going vessel" within the body of a county ; and by 24 Vict. c. 10, ss. 2, 7, it was further extended to claims for damage done by " any description of vessel used in navigation not propelled by oars." It appears that these statutes covered every case of collision between craft of all sorts, except a collision within the body of a county between lighters or other craft both of which are propelled by oars only. Thus, it was held that where the collision was within the body of a county, and the damage was done by a steamship to a barge, the case was covered by 24 Vict. c. 10, s. 7 (.r) ; and where the collision was within the body of a county, and the damage was done by a barge to a steamship, the case was covered by 3 & 4 Vict. c. 65, s. 6 (y). But where the collision was within the body of a county, and the damage Avas done by one Thames lighter (propelled by oars only) to another similar craft, the Admiralty Court had no jurisdiction (z). Con- sequently, in the last-mentioned case, though the Admiralty Division has jurisdiction as a Division of the High Court (/■) Sitpra, p. 'i08 scq. Avithiu 3 ^: 4 Vict. c. 65, s. 6 ; The (s) 36 & 37 Vict. c. 66, s. 16. Bilbao, Lush. 149. \t) The Sarah, Lush. 549. (v) rurkis v. Flouer, L. E. 9 (k) 13 Hie. 2, St. 1, CO ; 15 Ric. Q. B. 114. 2, 0. 3. (:;) Evcranl v. Kvudall, L. R. 5 {.}■) r/it'J/rt/i///fr, Lush. 493; Br. C. V. 428. But see ou this caso &; Lush. 5". This case was uot The Rona, 7 1'. D. 247. 326 . PRACTICE. of Justice, there is no damage lien. The Acts above men- tioned gave the Admiralty Court jurisdiction in the case of damage by any craft not propelled by oars to property ashore {a) , and also to any sort of craft or other property afloat {b). The High Court of Admiralty had inherent jm-isdiction over every sort of collision and damage to property occur- ring on the high seas (c), and this jurisdiction is now possessed by the High Court of Justice. The Acts above mentioned, which alternately restricted and enlarged the jurisdiction of the Court of Admiralty, are now of importance only in connection with questions of maritime lien, and questions touching the jurisdiction of County Courts. Jurisdiction By the County Courts Admu^alty Jm-iscliction Act, Court^mcasc 1^68 (ol & 32 Yict. c. 71), s. 3, sub-s. 3, and an Act of collision. amending it (32 & 33 Yict. c. 51), s. 4 (d), certain County Com-ts therein referred to have Admiralty jurisdiction in actions for collision occurring within the limits of their local jurisdiction, where the amount claimed does not exceed 300/. ; also in actions for damage to ships, whether by collision or otherwise, up to the same amount (e). Where the collision was in the body of a county between two Thames lighters (propelled by oars only), it was held that the County Cornet had no jurisdiction (,/') ; nor where (rt) See above, p. 81. which was cut by the warp of (b) For the meaning of " .ship " in another trawler : The JFarwiek, 15 s. 458 of 17 & 18 Vict. c. 104, see P. D. 189. In this case both T/w Mar, 7 P. D. 38 ; on app. if>. trawlers were insured in a colli- p. 126 ; and elsewhere in the same sion club, upon the terms infer alia Act, 7'he C. S. Butler, L. R. 4 A. that " in the event of a collision be- & E. 238; Ex parte Ferguson, L. R. tween two vessels insured" in the G Q. B. 280 ; of "vessel" in 10 & club, "or their respective . . . gear 11 Vict. c. 27, s. 3, see Hedges v. . . .the directors should have power London and St. Kntherine'' s Bocks to arbitrate on the matter, and their Co., 16 Q. B. D. 597. decision shoiild be final." Thede- (c) The Sarah, Lush. 549. fendant denied that his vessel or \d) As to County Court Admi- gear had been in collision, and it ralty jurisdiction and practice, see was held that the directors had no Williams & Bruce, Ad. Pr. 2ud ed. power to determine this question, p. 227 scti. and consequently that their award (c) These sections have been licld was not binding. See also 'Hie to give juri.sdi(.'tioii in a case of Siran, 89 L. T. IjS damage to the warj) of a trawler, (/') Evcrard v. Kendall, L. E.. 5 COUNTY COURT ADMIRALTY JURISDICTION. 32 < the damage was to property aslioro by a sliip afloat {g) ; but damage to a barge by a steamsliip (/a), and damage by a barge to a steamship (/), is withiu the jurisdiction ; and it matters not wlietlier the collision occurs on tidal water or in a dock or channels leading thereto (/.•). The con- struction jjlaced ujion the Acts by the Com-ts limits the jurisdiction, in the case of damage to craft propelled by oars only within the body of a county, to damage caused by col- lision with a craft propelled otherwise than by oars. By the above-mentioned Acts, the legislatm-e appears to have conferred upon the County Com'ts a jurisdiction in resi^ect of collision which is the same (but limited as to locality and amount) as that which the Court of Admiralty possessed at the date of the passing of 31 & 32 Vict. c. 71. Service of the. writ of summons by a clerk in the high City of bailiff's office was held not to be good service in the case Qo,"J?^?^ of a warrant of arrest addressed by the City of London service of Coiu't to the high bailiff, and others the bailiffs thereof {I), an-est. A County Court has jmisdiction to entertain an action for breach of the towage contract {)n) . A right of ajipeal from the County Court is conferred imder certain circumstances by 31 & 32 Vict. c. 71, s. 20, and folloAving sections {n). C. P. 428. But see as to this case, 15 P. D. 121. A mere misappre- The Bona, 7 P. D. 247. hcnsion as to the ctt'ect of euact- ((7) 7i. (/., a pile-driving machine: mcnts is not "sufficient cause" JiobsoH V. T/ic Owner of the Kate, 21 for allowing an appeal to be pro- Q. B. D. 13. secuted wliich is not brought within {h) The Malvi>ia, J^ush. 493; Br. the time prescribed by 31 & 32 & L. 57 ; The Cpithia, 2 P. D. 52. Vict. c. 71, s. 27. There must be (i) Furkis v. Flower, L. R. 9 some special circumstance in addi- Q. B. 114. tion; The Irwin, 90 L. T. 172. (/.•) Jieff. V. Judge of City of London Absence from England of the party Court, 8 Q. B. D. GOO. desiring to appeal may bo such a (/) The I'alomarcs, 10 P. 1). 3G ; special circumstance. The llionber, see 31 & 32 Vict. c. 71, s. 23. 9 P. D. 18. In The Irwin, a ques- (w) The Isea, 12 P. D. 34. tion was raised whether the aiipli- («) Sec I'he Humber, 9 P. D. 12. cation for extension of time could Notwithstanding 51 ^; 52 Vict. c. 43, be entertained by a single judge, 8. 120 (County Courts Act, 1888), and a divisional Court was formed no api)i'al lies from an intcrlocu- for the purpose of hearing it. Sed tory order of the County Court in qu(ere, whether this course was ne- uu Admiralty action, except by cessary. Sec 0. LIX. r. 4. leave of the judge; The Cashmere, ( 328 ) CHAPTER XIII. COSTS, General rule : costs follow event. Both ships in fault. The general riile as to costs in a collision action, in which, the owners of the two ships are plaintiff and defendant, is that costs follow the event of the action. If the collision is found to have been caused by the fault of the defendant ship alone, the plaintiff is entitled to the costs of the action ; if his ship was alone in fault, or he fails to prove fault in the defendant ship, he will be condemned in costs. But the rule is not invariable. The Court has a discre- tion (''/) ; and in a recent case an unsuccessful plaintiff was not condemned in costs, although the only special circumstance was the difficulty of proof, owing to the collision having occurred in a dense fog (b). Where both ships are in fault, the rule is that each party, whether the plaintiff sues as shipowner, cargo owner, or otherwise {(■), bears his own costs (d). This rules applies whether there is or is not a counterclaim (e) ; also where the fault of one of the ships is the fault of her [a) Ord. XLV. r. 1 ; as to the limit of this discretion, see Ec 3filVs Estate, '.'A Ch. D. 24. {b) The Sardinian, Ad. Div. 9th Dec. 1886. (c) The City of Manchester, 5 P. D. 221 ; The Vera Cruz, 9 P. D. 88. {(l) The jrashinqton, 5 Jur. 10G7; The Telegraph, 1 Sp. E. & A. 427 ; Wilson V. Canada Shipping Co., The Lake St. Clair, and The Underwriter, 2 App. Cas. 389 ; 2'he Ayra and The Elizabeth Jenkins, L. R. 1 P. C. 501 ; The Lorchird, 6 P. D. SO. The rule fonncrly was that the costs of the action were divided, and one half borne by each party. The present practice is said to have been introduced by Lord Stowell {per Lord Blackburn, 7 App. Cas. 818 ; sed vide 1 W. Eob. 21), in order to avoid the cost of appor- tionment [per James, L. J., The City of Manchester, _ h P. D. 221), or as part of the diKcipline of the seas, so that neither of two -wi-ong-doinf^ ships should gain anything by the litigation. {Tcr Brett, L. J., The Hector, 8 P. D. 218, sed qii.) (c) The Ri(jhorfjs Mindc, 8 P. D. 132. COSTS. 329 compulsoiy pilot (./'). Wliere a defendant, before state- ment of claim delivered, admitted that his vessel was in fault, and pleaded the admission in his statement of defence, and the Com-t found that both ships were in fault, the plaintiff was ordered to pay the costs incurred after the defendant's admission {{/). And so, where the plaintiffs, in their statement of claim, admitted that they were to blame, but alleged that the defendants were also to blame, which the Court found to be the fact, the plain- tiffs were held entitled to costs (//). It was formerly a rule (/) of the Admiralty Court that. Inevitable where the collision occurred without fault in either ship — ^'^'^I'ient. the so-called case of inevitable accident — provided the plaintiff was not unduly rash in bringing- his action (/•), no costs were given on either side. In a case decided by Sir R. riiillimore since the Judlcatui-e Acts, where the collision was held to have occurred without fault in the defendant, no order was made as to costs. One ground of the decision was that the defendant ship had unavoidably a riding light exhibited, though she was not at anchor (/). The Court of Appeal, however, has since held that there should be an uniform practice as to costs in all the Divi- ■ sions of the High Court, and that, in the absence of special circumstances, costs will in future follow the event of the action in cases of collision by " inevitable accident," as in other cases {»/). Where the plaintiffs, in their rcpl}-, admitted that the collision was an inevitable accident, the defendants, upon motion for judgment, obtained judgment with costs {)i). (/) The Riqborrjs Mindc, 8 P. D. by the Privy Council in The Mar- 132 ; The Hector, 8 P. T). 218. pesia. L. R. 4 P. C. 212. («7) T/ie Ebor, 1 1 P. D. 25 ; cited (/.) For an instance, see The on this point Williams k Bruce, Thurnlcy, 7 Jur. 659. Ad. Pr. 2nd ed. p. 88. (/) The Buckhurst, G P. D. 152. (A) The Gnicrnl Gordon, G3 L. T. (w) The Monkseaton, 14 P. ]X 51, • N. S. 117; reversed on the facts, followed in The Batavier, 15 P. D. Fob. 18th, 1891. 37. (i) The Itinerant, 2 W. Rob. 2;;C : («) The Xaphs, 11 P. D. 124. The Loudon, Br. & L. 82, followed 330 COSTS. Arrest of wrong shi}!. Costs refused violence of crew. Cargo -owner claiming' defendant's shiji to be alone iia fault where both are in fault. Where the plaintiff failed to identify the ship arrested as the ship with which his own had been in collision, the action was dismissed with costs (o). It seems that, to entitle the defendant in such a case to damages for the wrongful arrest of his ship, gross negligence, equivalent to malice, must be proved against the plaintiff (p) . Tlie decisions in Admiralty in which a successful defen- dant has been required to bear his own costs, so far as they conflict with the practice of the other Divisions of the Hig-li Coiu-t, would probably not now be followed {q). The ship that succeeded in the collision action was in one case deprived of her right to costs by reason of the violence of her crew to those on board the other ship at the time of the collision (r) ; and in another case (before the statutory rule as to standing by was in force), a vessel was deprived of her costs by reason of her failui'e to stand by and assist the other ship (.s) . The owner of cargo who sues the ship with which the carrying ship has been in collision will not get his costs if he claims that the ship sued is alone in fault, and it is held that botli ships are in fault ((). It has been said that the strict course in such a case is to give the plaintiffs the costs of the issue upon which they succeed, and to make them pay the costs of the issue on which they fail. But, to avoid the expense of such an apportionment, it was held in T//e Cif// of Manchester that no order should be made as to costs {u). (o) The Evangelismos, Sw. 378 ; 12 Moo. P. C. C. 352 ; The Active, 6 L. T. N. S. 773 ; The Strnihnaver, 1 Ajjp. Cas. 58 ; see also The I'cri, 32 L. J. Ad. 46. {p) See cases cited in last note, and p. 319, atiie. {q) Tlie General Steam Xavigation Co. v. London if- Edinhuiyih SJiipphir/ ■ Co. ,2 Ex. D. 4G7 ; The 'Monksratou, 14 P. D. 51 ; and sec per Eutt, J., The Naples, 11 P. I). 124; The Jiatavier, 15 P. D. 37. {r) The Catalina, 1 Sp. 23. (a) The Celt, 3 Hag. Ad. 321. [t) The CUij of Manchester, 5 P. D. 221, reversing the decision of the Court below ; The Hlbernia, 2 Asp. Mar. Law Cas. 454. The Milan, Lush. 388, would not, it seems, now be followed on this point. [n) See2)er James, L..T., 5 P. D. at p. 223. Baggallay, L. J., in the same case thought that neither party should get any costs. COSTS. ;}3i 111 an action Ly the owners of a Large against her tug and a steamslii}) with which she liad been in collision, the owners of the steamship having attempted to cast the whole blame on the tug, their vessel was found alone to blame, and they were ordered to pay the costs, both of their co-defendants and of the plaintiffs {x). In the case of a collision with a Queen's ship, the Crown Costs in case usually conforms to the practice of the Com-t as to payment ^^^^ oncoi of costs (//), but no order for payment can be made against Her Majesty's the Crown (~) . A defendant who, admitting tliat his ship was in fault Defence of for the collision, raises and succeeds upon the defence of pXtage?^^ compulsory pilotage, will obtain his costs {a) ; and costs were given to a defendant who in his pleadings alleged that his sliip was not in fault, but at the trial abandoned this defence and relied solely upon his alternative plea of compulsory pilotage {b) ; but where, defending the case • upon the merits, he fails, though he raises also, and suc- ceeds upon, the defence of compulsory pilotage, he will neither get, nor will be ordered to pay, costs. Each party, in such a case, is left to bear his owii costs of the action (c) ; but if the defendant, in addition to defending the case on its merits, has set uj) a counterclaim, it mil be dismissed with costs (d). So, before the Judicature Acts, where there were cross actions, and the collision was held to have been caused by the compulsory pilot of the plaintiff's ship, the plaintiff's action was dismissed with costs, and the defendant's cross action without costs {c). (x) The Eiicr Layan, 6 Asp. M. C. 281. {ij) H.M.S. Su-aUow, Swab. 30. (z) The Lcda, Br. & Lush. 19. \u) The Ruyal Charter, L. R. 2 A. & E. 3G2 ; The Schwann, L. K. 4 A. & E. 187 ; The Juno, 1 P. D. 13o ; The ll'iihstoii, 8 P. D. 176. (A) The (hkjhld, 11 P. D. 34. • (r) The Schwann, L. R. 4 A. & E. 187 ; The Beta, Br. k. L. 328. {cl) So held, after re.ser\-ing the point for inquiry, in TJic Jtulu/, 15 P. D. 13'J. In The Trinceton, 3 P. D. 90 ; and The Mercurins, Ad. Div. June, 1887, no costs were given, either of action or counter- claim ; but the point does not ap- pear to have been argued, at least in the former ease. (() The Annapolis, Lush. 295, 313. 332 COSTS. Costs of reference to registrar. The above was formerly the practice in the Admiralty Court and Privy Council (,/') ; it has been followed since the Judicature Acts by the Court of Appeal and the Admu^alty Division (r/). But in the Exchequer Division this practice was on one occasion not followed, and the plaintiff was ordered to pay the defendant's costs (//) . In The Hanliow ii) the uncertainty of the law as to compulsory pilotage was assigned as a reason for not giving costs. Where, upon the defendant delivering his defence alleging that the collision was caused by the faidt of the compul- sory pilot in charge of his ship, the plaintiff discontinued his action, Butt, J., held that the plaintiff must pay the defendant's costs, upon the ground that there were no facts before him upon which he could exercise a discre- tion (/•). The rule as to no costs being given where both ships are in fault applies where the fault is that of a compulsory pilot (/). The costs of a reference as to damages do not follow the costs of the action {in) . The investigation before the regis- trar is in the natm-e of a new litigation, and the costs of it are in the discretion of the judge {)i). The general rule, before the Judicature Acts, was that the claimant is en- titled to his costs of establishing his claim before the registrar, provided not more than one-fourth of the claim is disallowed (o). And this appears still to be the prac- ( /) The Innisfail, 3 Asp. Mar. Law Cas. 337 ; 35 L. T. N. S. 819 ; The I'rincetoii, 3 P. D. 90. (^r) The Matthew Cay, L. K. ;5 P. D. 49 ; The Daio::, 3 Asp. Mar. Law Cas. 477 ; Thellh/borqs Miiide, 8 P. D. 132 ; The Alti/rr, Ad. Div. 27th Feb. 1885, where there was a counterclaim. (A) General Steam 'Navigation Co. V. London and lulinhurgJi Sliipping Co., 2 Ex. 1). 467. [i) 4 P. D. 197. [k) The J. ]{. Hcnkes, 1 2 P. D. 1 Ofi. Butt, J., expressed an opinion that the practice as to costs should be unif onn in all Divisions of the High Court. [1) The Rigborgs Minde, 8 P. D. 132 ; The Oakfcld, 11 P. D. 34. (;«) Formerly a different practice prevailed : see Tlie Peerless, 6 L. T. N. S. 107. («) The Consett, 5 P. D. 52, 77 ; followed in The Savcrnakc, 5 P. T>. 1G6 ; The 3Iar>/, 48 L. T. N, S. 28; 7 P. D, 201. (o) The Amelia, 23 L. T. N. S. 544 ; The Empress Eugenie, Lush, 138. I COSTS. ticc (j)). If more than ono-foui-tli and less than one-third of the claim is disallowed, no order is made as to costs (q). If more than one-thu'd of the claim is disallowed, the claimant will he ordered to pay the costs of the refer- ence (>•) ; and this rule will not Le relaxed merely because the claimant fails to prove the required amount of his claim upon a point of law (s). The rule is the same whether one or both ships are in fault {t) ; whether the claim is by an owner of ship or of cargo (u) ; whether the claimant is plaintiff or defendant claiming upon a counter- claim {j') ; and whether, both ships being in fault, proceed- ings upon the reference have been taken with respect to the damage to one or both ships (//) . Under special circumstances, the general rules above stated have been departed from. Thus, in a case where nearly half the claim was disallowed, the costs of proving certain items were allowed, and no order made as to the residue of the costs (~). So a claimant has obtained his costs where more than three-fiftlis of his claim was dis- allowed, because of the difficulty of determining how much of the damage was due to the collision (a). AVhere the claim was for loss of a fishing voyage, and for loss of gear, and the sum claimed for gear was paid into Court, the claimant obtained part of his costs of proving the rest of his claim, though more than one-third was struck off {b). 333 (p) In TJic SavemaJce, ') P. D. 1G6, about one-ninth ; in T/ic Man/, 7 P. D. -JOl, less than one -fifth Vas disuUowed. Tlio claimants got their costs of the reference in both cases. (ly) The Amelia, uhi supra; The -Winiamina, 3 P. D. 97; The Em- press Eiiginie, iibi supra. ()•) 'The Empress Eitgcnte, Lush. 138 ; The Xaomi, 32 L. T. N. S. 836 ; The EiigUshman, 38 L. T. X. S. 756 ; The Oleam-r, 38 L. T. N. S. 650. («) The Empress Eitghiie, itbi supra; The Comett, 5 P. D. 229 (the shipowner's claim). (/) In The C'oiiseK, The Savernake and 'J'he Mary, both wore in fault. {)() In The'Comett, 5 P. D. .J2, 77, the claim was bv cargo-owner. (.(•) In The Mary both plaintiff and defendant got their costs. {y) In 'The Savernake it did not appear that before the reference any proceedings had been taken by one of the ships. {•) The Consett, 5 P. D. 229. {a) 'TheEUna, 5 P. D. 237, note. (A) The Gleaner, 38 L. T. N. S. 6.')0 ; and see The Parana, 1 P. D. 452, 4GI; 2 P. D. 118. 334 COSTS. Where a claimant, after withdi-awing at the reference a large part of his claim which he had persisted in up to the reference, succeeded in proving two-thirds of his claim as diminished, though less than two-thirds of his original claim, it was held that he must pay the costs of the refer- ence {('). The rule that each party pays his own costs of the reference, where more than one-fourth and less than one- third has been struck off the claim at the reference, does not apply where the registrar's report has been appealed from and overruled, though by the ultimate decision of the Court the above-mentioned part of the claim is al- lowed (,/'). In The Frivdeherg the Court of Appeal, apparently under tlie impression that the practice in Admiralty as to allowing and disallowing costs of a reference was a hard and fast rule, said that it was contrary to Ord. LXV., r. 1, and threw doubt upon the justice and validity of the prac- tice. The attention of the Court does not appear to have been called to the cases above cited, which show that there is not, and never was, a hard and fast rule which would fetter a judge's discretion in each case (r/). Notwith- standing the remarks of the Court of Appeal (which were obiter), the established practice as to allowing or dis- allowing costs of a reference according as a definite part of the claim is established or not, will probably be main- tained. Report of The registrar is empowered to report whether any and what part of the costs shoidd be allowed, and to whom (//). His report is seldom disturbed (/). Where there is no report, an order as to the costs will be made upon motion by the Court (,/). {€) The Eilecm Buhh, 49 L. T. {h) Ord. LVI., r. 8 ; see The N. S. 444. Eilea7i Diibh, 49 L. T. N. S. 444. (/) The Blachrrincc, infra. («) The Consett, 5 F. B. 77; The (^) 10 P. D. 112. Savermke, 5 P. D. 166. (/) The Mary, 7 P. D. 201. registrar as to costs. COSTS. 335 The costs of an appeal from the registrar, as a general Costs of nile, follow the result of the appeal (/.•) . registrar. AVlioro the decision of the Court below is reversed or Costs in Court varied, and the Court of A])peal holds the collision to have *^* •'^PP*^'^'" been caused by the fault of Lotli shii)S, no order will be made as to costs, either of the Court below or of the appeal; each i>avty being left to bear his own costs (/). Thus, where in the Admiralty Division it had been held that the collision was caused entirely by the fault of one ship, and the Court of Appeal found that it had been caused by fault in both ships, no costs were given in either Court. " Tiie Admiralty Court, which always exercised a very wide jurisdiction with regard to the discipline of the seas, laid down tliis rule : If both vessels are to blame neither of them shall gain by any litigation in the matter. The Privy Council, I think, adopted that view of the matter, and carried out the rule on appeal, save under exceptional cii'cumstanees. These exceptional circum- stances are where the judgment of the Court below has been that both vessels were to blame, and that judgment is affirmed" (m). In T//C Ann («) the Privy Coimcil dismissed the appeal, but without costs, because, althougli the appellant's ship had been found solely in fault in the Court beloAv, whereas in the opinion of the Privy Council she was free fi-om blame, the appellant had in his pleadings alleged that the collision was caused by his adversary's shij) starboarding, the fact being that she had caused the collision by not porting in time. It appears to be now settled (o) that where the Court of Appeal, reversing the decision of the Court below, finds (A-) T/ie Blade Prince, Lush. 568 ; {»,) Per Brett, M. R., T/ie Jlcdor, The Fara/ia, 1 P. D. 452 ; 2 T. 3). 8 P. D. 218. 118. («) Lush. 55. (/) The JTecior,^^.!). 218; The {o) l^iotwithstanding The Sivamea Rigbonjs Mindc, 8 P. D. 132; The and The Condor, 4 P. D. 115, and Arratoon Apcur, 15 App. Cas. 37. The Milanese, 4 Asp. M. L. C. 318. 336 COSTS. the coUifsion to have occurred without fault in either ship, the sued is entitled to her costs both of the appeal and in the Court below. It has been so held where there was no counterclaim alleging negligence in the plaintiff's ship (;;). "Where in the Admiralty Court one ship was held in fault, and upon appeal to the Privy Council both ships were held in fault, the order of the Privy Council was that each party should bear his costs both of the appeal and in the Court below (q). The Court of Appeal does not always follow the practice of the Privy Council as to costs (r) . The rule, that no costs of the appeal or in the Court below will be given where both ships are in fault, applies where the fault of one of the ships is the fault of her com- pulsory pilot (.s). Where both ships are held in fault in the Court below, and upon the appeal by one of the parties the other party applies to have the judgment varied or reversed, and the Court of Appeal affirms the decision of the Court below, the appellant will be ordered to pay the costs of the appeal, except so far as they have been augmented by the notice given by the respondent (/) . Where in the Court below both ships are held in fault, and one only of them appeals, and the appeal is dismissed, the appellant will be ordered to pay tlie costs of the appeal {u). Where, upon a claim and counter-claim, ship A. is held solely in fault, and upon appeal the decision is reversed, (p) The Jfonkseaton, 14 P. D. 51 ; (r) The CUi/ of Berlin, 2 P. D. see also The ilarpesia, L. R. 4 187; The Monkscatoii, \4:'P. H. b\. P. C. 212; The (Mil of Vambridge, («) The ItUjhorgs Minde, 8 P. D. 3 Asp. M. L. C. ;507 ; The Curlmia, 132. ibid. {() The Lauretta, 4 P. D. 25. {(/) The Agra, and The Elizabeth {u) The Milanese, 4 Asp. Mar. Jenkins, L. R. 1 P, C. 501. Law Cas. 438 ; and see per Brett, L. J., in The Hector, 8 P. D. 218. COSTS, 337 and ship B. hold solely in fault, the appellant \vill get his costs both of tlie appeal and in the Court below (.r). A plaintiff, or a defendant liaving a counter-claim, who Security f jr is resident out of the jurisdiction elsewhere than in Scot- ^^^ **" land or Ireland (//), may be required to give security for costs (z) ; but he will not be required to give security for damages that may be awarded against him (a). The general rule as to the costs of an action for limit a- Costs of O 4.' £ tion of liability is that they shall be borne by the plaintiff, limitation of But if the defendant raises issues which are decided liability, against him, as where he disputes- the right of the plaintiff on the ground that the loss was by and with the actual fault and privity of the owners (i'^), or was not caused by improper navigation (r) , or that there is a separate liability in respect of each of two collisions (d), he will be com- jielled to pay tlie extra costs occasioned to the plaintiff by such issues. Nor will the plaintiff in the limitation action have to pay the costs of litigation between the claimants upon the fund representing tlie amount of their statu- tory liability as to their respective rights to share in the f imd (e) . Costs are now in all cases in the discretion (/) of the Costs of Court ((7). The provisions of the County Courts Admi- for amount ralty Jimsdiction Act, 1868 (31 & 32 Yict. c. 71), ss. 3, 9, ^^^^^'^ }J;|;'_*y as to costs, are no longer in force, and a plaintiff who (x) The Glannihanta, 1 P. D. 283 1 A. & E. 335. (1876). See further, as to costs {h) African Steamship Co. v. on appeal, The Saxonia, and The Sivaitzij, 2K. &J. 660; The Citi/ of JCc/ipse, hutih. 410; The Te/cr/niph, Buenos Aijres, 1 Asp. Mar. Law 1 Sp. E. & A. 427 ; The Florence Cas. 169; The Empiisa, 5 P. D. 6. Nightingale, Br. & L. 29 ; The (c) The Jl'arkworth, 9 P. D. 20. Ulster, 1 Moo. P. C. C. N. S. 31 ; (cl) The Creadon, 5 Asp. M. C. The Dumfries, Sw. 125 ; 'The North 585. American, Sw. 358. (<) African Steamship Co. v. {ij) See 31 & 32 Vict. c. 56; Swanzg, ubi supra; The City of 36 & 37 Vict. c. 66, s. 76 ; 'The llnenos Ayrcs, ubi supra; The Em- Felaw, cited Williams and Bruce, pusa, ubi supra. Ad. Pr. 2nd ed. 482, note (.r). (/) For the limits of this discre- {z) The CoHstantine, 4 P. D. 156 ; tion, see Itc Mills' Estate, 34 Ch. D. The Newbattte, 10 P. D. 33 ; The 24. Julia Fisher, 2 P. D. 115. {g) Rules of Sup. Court. 1883, («) 'The Marg, or ^llrxa)idra,'L.'R. Orel. LXV. r. 1. M. Z 338 COSTS. Costs of appeal from Comity Court. Costs of ex- cessive bail. Costs upo:i higher scale. Costs of pay- ing freight into Court. Costs : expense of sureties. Costs : expense of retaining seamen ■witnesses. briugs liis action in the Supreme Court may receive his costs, though tlie amount of his damages are less than the County Court limit {//.) ; but in practice, he will not get them unless there are si^ecial circumstances justifying his proceeding in the High Court (/). Upon appeal from a County Court, 31 & 32 Vict. c. 71, s. 30, provides that an unsuccessful appellant shall pay the costs of the ajjpeal, unless the Appellate Court otherwise directs. This enactment, if not repealed, is subject to the discretion vested in Divisional Courts by Ord. XLV. r. 1. If a plaintiff arrests the defendant ship, and requii-es bail for an exorbitant sum, he will be ordered to pay all the costs and expenses to which the defendants have been put in finding bail. Such an order was made in a salvage action, where 3,000/, was claimed, and bail for that sum required, and only 450/. was awarded {k). As to the principles upon which costs upon the higher scale will be awarded, see Ord. LXV. rr. 9, 10 (/). The owner of cargo arrested for freight, upon paying into Court the amount of freight, may deduct the cost of paying it in {ni). Money paid to sureties on a bail bond in consideration of their suretyship will not be allowed as costs (>/). The expense of retaining seamen witnesses until the trial is allowed as costs (o) . (A) Garnctt v. Bradlnj, L. E,. 3 App. Cas. 944 ; TodhiiU 6,- Co. v. Ellis ^- Co., 6 Q. B. D. 46 ; The Camellia, 9 P. D. 27 ; Snelling v. Fulling, 29 Ch. D. 85 ; Farur'll v. Mori, Liddell^ Co., ih. 325. (i) The Herald, 63 L. T. N. S. 324 ; The ylsin, [1891] P. 121. {k) The George Gordon, 9 P. D. 46 ; and see The Earl Grey, 1 Sp. 180 ; The Eleonore, Br. & L. 185. As to moderation of bail, see supra, p. 87. (/) See also The Horace, 9 P. D. 87 ; The Raisby, 5 Asp. M. C. 473 (both salvage cases). As to an appeal upon the question of higher or lower scale, see Be Terrell, 22 Ch. D. 473. As to the scale of counsel's fees, see The City of Lurknow, 5 Asp. M. C. 340. {m) The Leo, Lush. 414 ; see Ord. XXIX. r. 4. («) The Collingrove, 10 P. D. 158; The Nunrida, ibid. (o) The Karla, Br. & L. 367. ( 3119 ) CHAPTER XIV. THE REGULATIONS FOR PREVENTING COLLISIONS AT SEA. Many years before the rule of the road at sea was regu- Legislation as lated by Act of Parliament, the i)ractice of seamen had the road^^*^ "^ established rides to enable approaching ships to keep clear of each other. These rides, which are the foundation of those now in force, were well established by custom, and formed part of the general maritime law administered by the Admiralty Court {a). In the year 1840 a rule (6) as (a) A mle of the road for ships on opposite tacks existed at least as early as the latter part of the last century. In Admiralty Reg'ula- tions of that date, to be observed bj' ships under convoy, there ap- pears a mle to the ett'cct that a ship on the larboard tack shall bear up for another on the starboard tack. But it is doubtful whether this rule existed a century earlier. In the Duko of York's Sailin). But, except in waters where local rules, incon- (ff) See per Lord Watson in T/ie Vooricaurts and The Khedive, 5 Apj:). Cas. 876, 903, 904 ; and see Mac- laren v. Coinpaf/tiie Francaise de Navigation a Vapeur, 9 App. Cas. 640, Gol, 652. {It) See per Brett, L.J., in The Franeonia, 2 P. D. 8. The dicfuin of the Lord Justice in this case to the effect that the regulations of 1863 are inapplicable in a winding river, cannot mean that they are never applicable in such waters. It must be taken to mean that they are not always ajiplicable in a winding river to ships in such IN WHAT WATERS THEY APPT,Y. 343 sistent witli the soa Regulations, are in force, it would probably be held that vessels are required to navigate in accordance with the sea Regulations in rivers and harbours, as well as at sea. Many cases have been decided upon the assumption that they apply in rivers and narrow waters (i). The words of Ai-t. 25 seem to imply that, except in the cases tliere mentioned, they apply everywhere. The operation of Art. 21 (the starboard side rule) is certainly not confined to naiTOw cliannels "at sea" (/.•). On the sea, everywhere, except where inconsistent (/) local rides are in force, they are directly applicable {>/i). Tlieir appli- cation in winding rivers and in waters wliere local rules are in force is considered below under Arts. 21 and 25 (pp. 4G2, 465). In a recent case in Scotland the Regulations were held to apply in the river Clyde. Notwithstanding the exist- ence of local rules of navigation applicable to the Clyde, a steamship was held in fault for disobedience to Arts. 13 and 18 of the Regulations of 1863 (;/). From this deci- sion it appears that in Scotland the Regidations are held to be applicable in rivers, as well as at sea, and that where positions that they would he bound cited 1 Maude & Pollock on Ship- by them if at sea. The Adniii-alty piug, 60G, note {i) ; The Lcvcring- Kulcs of 1851 as to ship's lights to)i, 11 P. D. 117. In America were held to apply in the Thames : the Act of Congress embodying the Morrison \. Gc/ural Ulcam Xav'tfia- Regulations of 1863 is expressed to tion Co., 8 Ex. 733. The Order in be for preventing collisions "on Council applying the regulations water." By the Canadian Statute of 1863 to American iuLiud waters, 31 Vict. c. 58, the regulations are assumes that their operation is not api)licablo over all the inland and confined to the sea. The Wash- other navigable waters of the Do- ington Conference Regulations are minion. to be applicable to "all vessels (/.•) ^qc The Leverington,\W.'D. upon the high seas, and in all 117. waters connected therewith, navig- (/) 43 Vict. c. 29 (Canada), s. 4, able by seagoing vessels." makes void local rules wliich are (i) The Concordia, L. R. 1 A. & inconsLstent with the regulations. E. 93 ; The Velocity, L. R. 3 P. C. (;«) See The Saxonia, Lush. 410, 44 ; The Co/offnc and The Hanger, as to the application of a former ibid. 4 P. C. 519 ; The Owen Trallis, Act to foreign ships in the Solent. L. R. 4 A. & E. 175 ; and see («) Litt/e v. JJiirns, The Owl and 'The Fyenoord, Swab. Ad. 374 ; The The Ariadne, 9 Sess. Ca. 4th ser. Gcrmania, P. C. 17th Jime, 1875, 118. 344 THE KEGULATIOKS. To what ships they apply. Their inter- national character. local rules are in force they are to be construed and applied in conjunction with the general Eegulations. The Eegulations apply to all seagoing ships and craft, whether large or small, and whether propelled by oars, sails, or steam (o). Whether they apply in rivers and harbours to craft intended never to go to sea, as hulks, harbour lighters, and such craft, seems doubtful {p). As to their application to her Majesty's ships, ships of foreign governments, and ships sailing under convoy, see Art. 26, infra, p. 527. The Eegulations apply to British ships everywhere ('?) . To foreign ships within British jurisdiction they apply directly, as forming part of the municipal law of this country (r). They are also applicable to foreign ships out of British jurisdiction, and, in the case of a colhsion on the high seas, or in foreign waters, are applied to such ships by British Courts by virtue of the statute above mentioned (s) . The Eegulations of 1863 formed part of the municipal law of this country and of some foreign countries (t) . They have also been enacted by the legislatures of several British Colonies {it) . In the United States it has been held that, having been adopted by all maritime nations, the Eegidations are of universal application, and form part Vict. c. 63, s. 57. («) See 25 & 26 Vict. c. 63, s. 58, supra, p. 340. (t) Amongst others, the United States Act of Congress of Srd May, 1885, Public Act, No. 100 (Art. 24 being omitted) : see The Belgenland, 7 Davis, 355 ; France, Decrets of 25th Oct., 1862; 26 Mai, 1869, and 28th Oct., 1873; Germany- Penal Code, Art. 145 ; Reichge- fetzbuch, 127. [u) See Canada, 43 Vict. c. 29 ; Queensland, 46 Vict. No. 12; South Australia, 44 & 45 Vict. No. 237 ; Victoria, 28 Vict. No. 255 {scmble, Regulations of 1863); New South Walfs, .'jo Vict. No. 7; New Zea- land, 41 Vict. No. 54. (o) Ex parte Tcr(jnf,on and Hutch- inson, L. R. 6 Q. B. 280 ; and see 25 & 26 Vict. c. 63, ss. 25, 27, and 28, where the regulations, includ- ing those for fishing boats, are spoken of as regulations for ships. As to electric ships, see infra, p. 359. {p) The C. S. Butler, L. R. 4 A. & E. 238. A hulk was held not to be a ship within 17 & 18 Vict. 0. 104, s. 55 ; European, ^c, Mail. Co. V. T. &; 0. Steam Naviga- tion Co., 14 L. T. N. S. 704. (q) Subject, it seems, to local rales, and in colonial and foreign waters to colonial and municipal laws. [r) And expressly by 25 & 26 TO WHAT SHU'S THEY APPLY — INTERNATIONAL CHARACTER. 345 of tlie int('niatif)niil or general maritiiiio law of the world (;r) . The international character of the Ilegulations, and the Uniform safety of navigation requires that they sliould he under- ^f^ho Re^u- stood by the seamen of different nations in the same sense, lations de- It is therefore of importance that the construction placed upon them by the courts of difPerent countries sh(juld he uniform. This has been distinctly recognised in America. The following observations occur in a judgment of a Cir- cuit Court of the United States : " The paramount impor- tance of having international rides, which are intended to become part of the law of nations, understood alike by all maritime powers, is manifest ; and the adoption of any reasonable construction of them by the maritime powers named affords sufficient ground for the adoption of a simi- lar construction of our statute by the courts of this country "(y). In the com'ts of this country tlie ships of a foreign country to which the Regulations have been applied by Order in Council under 25 & 26 Yict. c. 63, s. 58, will, it is conceived, be bound by the English version of the Eegu- lations. The foreign versions of the Regulations of 1<563 were not, in all cases, exactly equivalent to the English version. An important Article of the Portuguese Regu- lations was open to a construction which was entirely different to that borne by the English version (~) . (.(•) The Scotia and The Berkshire, 14 Wall. 140 ; The Behjenhincl, 7 Davis, 355 ; and see per Sir R. Pliillimore in The Magnet, L. E,. 4 A. & E. 417, 426, as to their international character. There being in America no law corre- spondiDf": to 25 & 26 Vict. c. 63, 8. 58, the question arose in this case whether the rejriilations as to li^-hts applied in the case of a collision between an American and a British ship on the high seas. It was held that they did apply, and that the American ship was in fault for having- sho-ft-n a light other than that required by the regula- tions. (//) Ter Benedict, J., in The Syl- vester Hale, 6 Bened. 523 ; and a similar opinion was expressed by the Court in 'The Free State, BrowTi, Ad. 251, 261. {z) See correspondence relating to the collision between The Lisiihnw and The Citi/ of Mecca, Pari. Pap. C. 3443, Sess. 1882; infra, Art. 16. 346 THE REGULATIONS. Rule for The following observations of Jessel, M.R., upon the them. ° construction of the Thames Rules appear to supply the rule for construing all Statutory Regulations for preventing collisions. In T/ie Libra («) the late Master of the Rolls said : "It must be remembered what these rules are. They are issued for the guidance of masters of vessels ; and, therefore, the proper mode of construing them is to read them literally. . . . Certainly rules issued as these are should be construed literally, if they can be construed at all." In T//C Dunehn {b), Brett, M.R., with reference to Art. 9 of the Regulations of 1863, said : " My view of an Act of Parliament — and this article is equivalent to an Act of Parliament — which is made applicable to a large trade or business is, that it should be construed, if possible, not according to the strictest and nicest interpretation of language, but according to a reasonable and business inter- pretation of it with regard to the trade or business with which it is dealing." And in another case the same learned judge said : " I take it that the basis of the Regu- lations for Preventing Collisions at Sea is, that they are instructions to those in charge of ships as to their conduct ; and the legislatm-e has not thought it enough to say, ' We will give you rules which shall prevent a collision ;' they have gone further and said that, for the safety of naviga- tion, we will give you rules which shall prevent risk of collision " (r). The true rule as to their construction is probably that of Jessel, M.R., namely, that they are to be construed literally ; but in this sense, that their true meaning is that which the words express and is in accordance with the pro- bable intention of the legislature in framing a code for (a) 6 P. D. 139, 142. See al.so {c) Fer Brett, M.R., The Beryl, per Brett, M.R., iu The Margaret, 9 P. D. 137, 138 ; and see infra, 9 P. D. 47. p. 349, as to the circumstances [b) 9 P. D. 1G4. under which the Regulations arc applicable. now COXSTRUED — Tl>l OF NEGLIGENCE. 34^ prevonting coUi.sion.s wliidi i.s to bo jqipliod hy practical seamen {(/). Wliere no special circumstances exist to make the Regu- They furnish lations inapplicable, tliey furnish the paramount rule for ncfjligencc. the decision of the question as to which shij) is in fault in every case of collision. l*ublic policy, as well as the best interest of all concerned, requu'cs that they should bo en- forced in all cases to which they apply (r). Departure from them is justifiable only in one event; namely, wliere it is necessary in order to avoid immediate danger (,/'). It is not justifiable on the ground that, under the circum- stances of the case, it would be better seamanship not to comply with them {r/) ; or on the ground that by departing from them the violence of the blow would be lessened {(/) . But though the Regulations in ordinary cases afford a test of negligence, and in some cases proof of departure from them is equivalent to proof of negligence, they are not to be applied mechanicall}', to determine whether a ship is in fault for a collision. Even where a position of risk is established, and a particular article proved to have been applicable, a vessel will not be held in fault for non-com- pliance with it, if the time dui'ing which it was applicable was so short, or the circumstances so startling, that a sea- man of ordinary skill, care, and nerve might reasonably be excused for not having appreciated the situation in time to enable him to obey the law (//). Where the Eegulations are clearly inapplicable, as where the ship cannot take the step required -^dthout going ashore, or endangering herself or other vessels, the question which ship is in fault is tried, without regard to {d) The draughtsmanship of the Regulations leaves much to be de- sired, from the point of view of both the di'aughtsman and the seaman. (f) Xew York and Liverpuol U.S. Mail Steamship Co. v. ItitmhaU, 21 How. 372, 383 ; and see The Bij- foijcd Chriitoisen, -1 App. Cas. 669, infra, p. 489 ; The Voorwaarts and The Khedive, 5 App. Cas. 876. (/) See below, Art. 23, p. ISO, as to the circumstances imder which dopartiu'o from the Regulations is allowed. {g) The Voorwaarts and The Khe- dive, 5 App. Cas. 876, 895. (//) The Vuoricaarts and The Khe- dive, 5 App. Cas. 876, 902: The 'Theodore II. Hand, 12 App. Cas. 247. 348 THE REGULATIONS. Circum- stances under •which Regu- lations are appHcable ; risk of col- lision. the Eegulations, by the ordinary rules of seamanBhip. Pro\dded they are not inconsistent viith the EeguLations, the rules or practice of seamen, although they have not the force of law, are equally binding with the Regulations, and upon British and foreign ships alike (/). The question as to the time and circumstances at and under which the Regulations become applicable was dis- cussed by Brett, II.E., in The Ben/1 {j). The Master of the Eolls, and the other members of the Court of Appeal (Bowen and Fry, L.J J.), held that the Eegulations were intended not only to prevent collision, but to prevent risk of collision ; and that it is a rule of interpretation of the Regulations, that " they are all applicable at a time when the risk of collision can be avoided, not that they are applicable when the risk of colHsion is already fixed and determined." The Coiu't laid stress iipon the words "so as to involve risk of collision," which occur in Ai'ts. 14, 15, 16, 17 (/.•), and 18, and held that they do not refer to an existing risk of collision, l)ut point to a time before risk of collision has arisen, and where it is, or ought to be, apparent that there will be risk, if nothing is done to prevent it. " Another rule of interpretation of these Regulations is (the object of them being to avoid risk of collision), that they are all applicable at a time when the risk of collision can be avoided — not that they are applicable when the risk of collision is already fixed and determined. We have always said that the right moment of time to be considered is that which exists at the moment before the risk of collision is constituted" (/). So in The Stan- (i) As to the mode of proving matters of nautical skill and sea- manship, see supra, p. 312. {j) 9 P. D. 137 "i and in The Dordogne, 10 P. D. 6. See also The Ehor, 11 P. D. 25, 29; The Memnon, 6 Asp. M. C. 317. (/;) In Art. 1 7 the words ' ' such directions" are substituted for " so." (0 Fcr Brett, M.R., The Beryl, 140. It is submitted that this view of the application of the steering and sailing rules — that the steps required by them are to be taken, not oidy where there is risk of collision, but where there is no risk, and only a probable risk — ■ will raise serious difficulties, both for seamen and the law Courts. Previously to 21ie Beryl, the view of the English Courts seems to RISK OF COLLISION. 349 more (m), Brett, M.H., lield the Regulations to a^jply where there is '* a j)r()hability of risk." Wliat constitutes risk of collision it is dilficult to deliue ; What con- slitutcs '* riHiC "It was utterly impossible for the Legislature to have of collision." determined, or described, what should constitute risk of a collision ; for that must always be decided, according to the cu-cumstanees of each case, by men of nautical ex- perience " (//). It has been described as a "chance," a " lU'obability," a "strong," or a " reasonable " (o) pro- bability of collision ; and distinguished from a " possi- bility " of collision (;;). In a case under 14 & 15 Vict. c. 79, Dr. Lushington said : " This chance of collision is not to be scanned by a point or two. We have held over and over again that if there be a reasonable chance of collision it is quite sufficient. . . . We have never got to this, and I hope never shall, that it (the rule) applies where two vessels are sailing properly, and there is no chance of a collision " (y) . In another case the same learned judge said : " The whole evidence shows that it was the duty of T//e Colonia with the wind free to have made cer- tain of avoiding T/ic Susdii. She did not do so, but kept her course till she was at so short a distance of a cable- and-a-half 's length, in the hope that the vessels might pass have been that the regiilations (the steering- and sailing rules) ap- plied only -where there was risk of collision ; and it is submitted that this is the more natural and more beneficial construction. The dan- ger is that two minds "will seldom agree as to there being a proba- bility of risk, 'ihe actual exist- ence of risk is a fact about ■wliieh there can be less doubt. Cp. 'J'/w Uciural V. S. Grant, G Eened. 465, infra, p. 478. Similar words occui- in 17 & 18 Vict. c. 104, s. 296, and were commented ujiou by Dr. Lushington in The Itijkxiblc, Sw. 32. In'an American case, 'llic Mihcaukir, Brown, Ad. 15 13, the view of Brett, M.E.., in The Beryl, seems to have been taken, that the regulations apply before there is actual risk. {)») 10 P. 1). 134. {n) I'er Dr. Lushington in The Mangcrton, Swab. Ad. 120. (o) The Cleopatra, ibid. 135 ; 'The Ericsson, ibid. 38 ; The Duke of 8itsse.x, 1 W. Rob. 276 ; The Bum- fries, Swab. Ad. 63, 65 ; with reference to the same expression in 17 & 18 Vict. c. 104, s. 296. [p) The Ericsson, Swab. 38 ; but see The Vooricaarts and The Khe- dive, per Lord Hatherley, 5 App. Cas. 876, 905 ; and per Pollock, C B., General tStiam Xavigation Co. V. Mann, 14 C. B. 127, 132. [q) The Sylph, 2 Sp. E. & A. 75, 82. 350 THE REGULATIOjSS. Indications of risk. Approaching ship not altering' her bearing. Opening or closing of mast-head and side ligrht. each other. Now it never can be allowed to a vessel to enter into nice calculations of this kind, which must be attended with some risk, whilst it has the power to adopt, long before the collision, measui'es which would render it impossible" (>•). In practice, one of the most usual indications of risk of collision is that the approaching ship remains upon the same bearing from the observing ship for an appreciable length of time (s). If the bearing alters quickly when the ships are a considerable distance apart, there is no risk. Another indication of risk of collision at night is the alteration of the apparent horizontal distance between an approaching steamship's masthead and side light. This alteration usually indicates a change in direction of the approaching ship's head and course, but it is of little value in estimating risk of collision, unless the relative positions of the masthead and side lights are known. Steamships' side lights are seldom carried exactly abreast of her mast- head light, and are often a considerable distance forward or aft of it. In most vessels, they are carried abaft the masthead light ; but in some of the newer vessels and in ocean liners, they are carried in miniature lighthouses erected on the deck forward of the masthead light. When the relative position of the lights is known, the alteration in the ship's course may be known by the following rule : — Where the side light is abaft the masthead light, the apparent distance between those lights increases as the ship's head turns away from the observer ; as they close, the ship's head is turning towards him (;*). Where the (r) The Colonia, 3 Not. of Cas. 13, note. (.s) In the "Washington Confer- ence Regulations (Art. 17), risk of collision is defined with reference to this fact. (t) Except in the case of an ob- server abaft the line at right angles to a line joining the mast head and side lights (supjiosing them to be in the same horizontal place), a case which for the present purpose may be neglected. The 8(a)imore, 10 P. D. 134, is an instance of the rule stated in the text. RISK OF COLLISION. 351 side light is forward of tlio mastliead light, the masthead and side lights broaden as the ship's head is turning towards an observer forward of a line joining the mast- head and side lights; whilst to an observer abaft that line, the lights are at the same time closing («). In estimating risk of collision, it seems that the pos- sibility of the other shij) being unable to comply with the llegulations, or of her negligently departing from them, is not, at least under ordinary circumstances, to be taken into consideration {x) . Hisk of collision, such as will bring into operation Art. 18 (requiring a steamship under certain circum- stances to slacken her speed or to stop and reverse), appears to be of a more imminent character than that which brings other articles into operation. The question ■will bo considered below in connection with Art. 18. The difficulty of defining the moment at which these American Eegulations become applicable has been recognised by the ^eanh]*,, of ^ American Courts (//). The following passage from a judg- '.'^i^^,^* col- ment of the Supreme Com-t of the United States expresses the general rule as to the time at which and dm-ing which they become and remain applicable : — " Eides of naviga- tion, such as have been mentioned (as to the duties of two vessels approacliing each other), are obligatory upon such vessels when approaching each other from tlie time the necessity for precaution begins ; and they continue to be applicable as the vessels advance so long as the means and opportunity to avoid the danger remain. The}' do not apply to a vessel required to keep her course after the approach is so near that the collision is inevitable, and are equally inapplicable to vessels of every description while they are yet so distant fi'om each other that measitres of (k) Except in the case of au ob- neglected. server abaft the line at ri<::ht (.r) T/w Jesmond and The Earl of angles to that joining the mast Elffin, L. R. 4 P. C. 1. head and side lights: a case wluch (y) The Hichol/s, 7 V^'M. G5G. for the present purpose may be 352 THE REGULATIONS. Uncertainty as to facts causing risk. precaution have not become necessary to avoid a colli- sion "(;:). It would tlierefore seem that the Regulations do not apply, or at least that departure from them is justifiable, where the collision is in fact inevitable, though there appears to be a chance of escape by departing from the Regulations (a). In T/ic Milariukec (b), it was said by the same Court that where vessels are meeting or passing in a crooked and narrow channel there is always risk of collision. In T/ic Libra {e) decided under the Thames Rules, in which the same phrase, " risk of collision," occurs, Brett, L. J., considered that, when the vessels were each rounding a point upon concentric circles of different diameters, and so that they would clear each other without further alteration of the helms than the course of the river required, there was no risk of collision. The distance, rate of sailing, and course of another vessel, and the direction of the wind, are never known exactly, and in practice tliere is often difficulty in deter- mining the moment at which, and the manner in which, the Regulations are to be applied (r/). In judging of the course and probable movements of a strange vessel, it must be assumed, under ordinary circumstances, that she can, and will, comply with the Regulations {e). {z) The Wenona, 19 WaU. 41, o2. Similar expressions occur in the judgments in The Kicholh, 7 Wall. "656 ; The Johmon, 9 Wall. 146 ; and The Dexter, 23 Wall. 69. («) See The Benares, 9 P. D. 16. \b) Brown, Ad. 313. (f) 6 P. D. 139, infra,^. 585. [d) In the Courts, owing to the form of the pleadings, the question as to the moment when the regu- lations become applicable, does not often arise. («) 'The Jemnond and Tlir Earl of Elgin, L. R. 4 P. 0. 1 ; see also The Free fitate, 1 Otto, 200, for a decision of the Supreme Coui't of the United States to the same effect. The view seems to have been taken in some American cases that the steps required by the Regulations should be taken, and the helm altered, before any risk is incurred, if the courses are such that, if continued, there would be risk; see The Milwaukee, Brown, Adra. 313, 331. In the same case, it was held that the chance of the other vessel disobeying the Regu- lations must be taken into account. Sed qu. Al'ri.IC ABLE rNDEU WHAT CIRCUMSTANCES. 353 Where there is no risk of collision, a vessel that im- Alteration of properly alters her helm so as to bring about a collision to"ause*risk. will be held to be in fault (,/'). If a vessel is disabled, or slow in answering her helm, it is her duty to be promi^t in taking the measures required by the Regulations {g). If a ship sees another in a position that may involve Roi^ulations risk of collision, but is unable to make out what courso !,",'!ii'^f?'^.'/f ^^° the other is on, she should keep her course, and not alter known. her helm, or take any decisive step until she has ascer- tained the other ship's course (//). " The mere discovery of a strange light does not necessarily immediately bind a person in charge of a vessel to follow any particular rule; but as soon as he has opportunity of ascertaining, by reasonable care and skill, what the strange vessel is, and what course she is pm'suing, then the ride which is applicable to the circumstances at once become binding on him"(0. An alteration of the helm in a fog when the other ship Alteration of cannot be seen and only ]icr whistle is heard, is not neces- ^^'^'^"' ^^ ^^°" sarily negligence, though it is made merely upon a guess as to the distance, coiu-se, speed, and direction of the other ship (/.•). An alteration of the helm made for greater safety when Alteration for there is no risk of collision will not be hold to be a fault. SicrriufrS' A sailing ship (in 1856) seeing a green light from two to four points on her starboard bow, and distant about a mile and a lialf, put her helm to starboard, and subsequently (/) The Juzia and T/ie Eliza, James If'att, 2 W. Eob. 270 ; The Holt, 67; The Dapper and The J)/orfera/io«, 1 Mar. Law Cas. O. S. Laihj Xormauhtj, ibid. 79; The Ve- 413; 'The ]}o)igai)iville and The lociiii, L. R. 3 P. C. 44 ; The Esk James C. Stevenson, L. R. o P. C. ■aud^The Xionl, L. R. 3 P. C. 436 ; 316, 321. 'The Injiexihle, Swab. Ad. 32 ; The (i) Per Dr. Lnsliingtou, 'The Sea ton, 9 P. D. 1. Great Eastern, 2 Mar. Law Cas. (fl) 'The Test, 5 Not. of Cas. 276. O. S. 97. ("//) 'The liona and 'The Ava, 2 (A) The Vindomara, 14 P. 172; Asp. Mar. Law Cas. 182; The affd. in H. L., 60L. J. Ad. 1. M. A A 354 THE -REGULATIONS. came into collision with the other ship. It was held that she was not in fault for starboarding (/). So where a steamship, ha\dng another two points on her port quarter, and overtaking her on a course converging vnih her own, ported and hard-a-ported when the latter was three lengths off, it was held that she had broken no rule of navigation, and was not in fault (»?). Cases in It has been held that tlie vessels were approaching " so ^vas " risk of ^^ to involvc risk of collision " in the following cases : — Two collisiou.' steamships meeting on nearly opposite courses at a joint speed of eighteen or nineteen knots, and distant a mile and a half («) ; a steamship and a sailing-ship, distant two or three miles, and meeting at a joint speed of seventeen knots, the steamship not being able to make out the course of the sailing-ship, but knowing that it was probably nearly opposite to her own (o) ; a steamship two points on the quarter of another and overtaking her, distant a mile or less than a mile (p) ; a steamship overtaking another upon a converging coiu'se, and distant three miles {q) . Where two sailing vessels were approaching each other on courses only half a point from being directly opposite, at a joint speed of twelve knots, and distant from each other two or three miles, it was held by the Supreme Court of the United States that there was risk of collision (y). In T//e Baiis/ice {.s), a steamship was going seventeen knots in Dublin Bay, and overtaking another going ten or twelve. The latter was 800 yards ahead, and the over- taking vessel was going in such a direction as to pass within a ship's length of her. It was held that there Avas no risk of collision, and that the leading ship was not in fault for not keeping her course. Sed qu. (J) The Hijlph, Swab. Adm. 233 ; {o) The Bongainville and The Jas. but see The Corsica, 9 Wall. G30 ; C. Stevenson, L. R. 5 P. C. 316. infra, p. 479. [p) The Franconia, 2 P. D. 8. im) The Franconia, 2 P. D. 8, \q) The Seaton, 9 F. I). 1. 13. (?•) The Nicholls, 7 Wall. 656; In) The Jesmond and The Far! of and see The Cayuga, 14 Wall. 270. Elfjin, L. R. 4 P. C. 1. (.s) C Asp. M. C. 221. TTTEIR APPIJOATION UNTIL RISK DETERMINED. 355 When two ships are approacliing each other with risk of "Wlion the collision, the rule of the road applies onoe and for all to or^'crossfng" take them clear. A ship is never requii'ed by the Rogula- ^^^^ applies, tions, after having sighted another, to alter her course first to Ijc applic- to starboard and then to port ; or, first to keep her course ''^}''^^^ "V^'.^ and then to keep out of the way ; or vice versa. In the determined, case, for example, of steamships meeting end on, or nearly so, each is required by Art. 15 to alter her coui'se to star- board. If, wliilo imder the port-helm, the relative positions and heading of the ships are changed, so that fi'om meet- ing ships they become crossing ships, the meeting rule (Art. 15) does not cease to operate, or give place to the "crossing" rule (Art. IG). The manccuvi-e of porting nmst be persisted in until the risk of collision is deter- mined. If porting will not take the ships clear. Art. 18 or Art. 2'j may apply, and the engines may be stopped, or any other step taken which is necessary to avert collision ; but the ships cannot afterwards, and whilst the risk con- tinues, become crossing ships. If once a ship is within the " meeting " rule, or any other rule requiring her to take or keep a definite com-se, or requiring her to keep out of the way, she cannot, whilst the risk continues, come within the operation of the " crossing " rule, or any other rule requiring her to adopt a different manoiuvre. The object of the rule of the road and of the Regidations would be entirely frustrated if it were possible for a ship to be thrown from one rule to another ; if, whilst in the act of obeying one article, she were suddenly to come within the operation of another article, requiring her, perhaps, to take an exactly opposite course, and so making tlie previous manoeuvre of no effect. The precautions requii-ed by the law to be taken where Tlie Re^ila- tliero is risk of collision must be taken in time to deter- *'«"* ""f M'® complied with mine that risk(/). An alteration of the helm, or other promptly and etioctiiaily. (0 T/ie Trident, 1 Sp. E. .t A. 217, 222. A A 2 356 THE UEGULATIONS. step taken in pursuance of the Regulations, is no defence, unless it is shown that such precaution Avas taken at the proper time. To be effectual, precautions must be season- able. If taken at an improper time they are not a com- pliance with the Reg-ulations, and are no defence. "If you adopt a measure at an improper time it does not take away the culjiability of not having done it before and pre- vented the accident" {ii). Close shaving. A vessel is not justified in delaying to take precautions until the last moment; or in trusting to being able to "shave" clear of the other (.r). If by doing so she frightens the other into taking a wrong step, and a colli- sion occm^s, she will be responsible for the entire loss (//). By a prompt compliance with the Regulations, where a vessel is required to alter her course to avoid another, she apprises the latter of her ability and intention to comply wdth the Regidations ; whereas by delaying to take the required step, she may lead the other vessel to suppose that she is unable to comply with them, and cause her to take a step which may make a collision inevitable. Where a ship, in order to show that she is free from blame, is required to prove that she altered her course at the proper time, it is not enough for her to show that her helm was altered at that time ; she must prove that she answered her helm {z) in time. Eegulations Where, by the action of the helm in accordance with the r^k finaHy Regulations, risk of collision has apparently been deter- determiued, mined, but in fact it continues, and the risk again becomes apparent, the Regulations are not complied with unless the steps required by them to be taken are taken and persisted (ti.) Fcr Dr. Lushington in The aide, I Otto, 208 ; The America, 2 Stadacona, 5 Not. of Cas. 371, 374 ; Otto, 432. TheFenham, L. R. 3 P. C. 212 (as (j) The John Brotherick, 8 Jur. to lights). The view taken by the 27G ; The Benefactor, 14 Blatchf. Courts of the United Slates is the 254. same ; Tlie Johnnon, 9 Wall. 146 ; (y) See above, p. 3. The Vanderbilt, G Wall. 225; The (s) The La Plata, Swab. Adm. Syracuse, 12^(0)1. \Q1; The Sunny- 220. or ships clear. rRACTICE INCONSISTENT WITH THE REGULATIONS. 357 in up to the time of collision or imiil llio ships are clear. Thus where, by porting, a steamsliip, A., shut in the green of B., a steamship whic-li had been approaching her with all her lights showing, and shortly afterwards, owing to the perverse starboarding of B., her green again be- came visible to A., and tlioreupon A. again ported and again shut in B.'s green, but B. continued to starboard, and again showed her green to A. ; though A. ported a third time, it was held that she was in fault, because she did not stop and reverse when B. (r/) showed her green for the third time. A vessel sailing upon a voyage that may not be termi- Ship to le ^ Dated until a liogulation as to lights or fog-signals comes required ^^ into force, and which is enacted, but not in force, when she appliances, sails, must, if possible, be provided wdth fog-signals, lights, and w^hatever is necessary to enable her to comply ■\^■itll the llegulation when it comes into force {h) . No alleged practice of seamen of avoiding other ships by Practifo or taking measures other than, and inconsistent with, those si"tc^"\\^th°" required by the Regulations is recognized by the law. A t|ie Rcirula- dofendant cannot be heard to allege such a practice as an be good, excuse for a violation of the Eegulations (c) . Whore a custom was set up that merchant ships should keep out of the way of Queen's ships coming out of Devonport harbom- by the deep water channel, it was held that it was not binding in law (d). On the same principle, under former Acts requiring shijis to navigate on the starboard side of a river, it was held that it was no excuse for a vessel on her wrong side that she Avas keeping out of the strength of the tide {(■) . So a custom to treat sailing ships in the trades as close-hauled, wlion in fact they are a point or two free, («) The Arratooii Apcar, \') Ai)i>. Araxcs aud The Blach Frliiee, 15 Cas. 37. Moo. P. C. U. 122 ; The Velucitij, {b) The Love Bird. 6 V. D. 80. L. R. 3 V. C. 44, iJO. ((•) The Si/lph, 2 Sp. E. & A. 7o ; {d) The Tromise and H.M.S. To- The Unili/,' Swab. Ad. 101 ; The paz, 2 Mar. Law Cas. O. S. 38. Hand of i'rovidcHce, ibid. 107; The (<) Below, p. 4GS. 358 THE REGULATIONS, was dipregardcd by the Courts in applying Arts. 14 and 22 (./■). The penalties attached to non-observance of the Eegu- lations have been considered in former chapters (f/). THE EEGULATIONS. The following are the Eegulations which came into force on the 1st of September, 1884. At the present date (1890) they apply exclusively to British, French, Italian, Greek, Portuguese, Norwegian, Swedish, Brazilian, Turkish, Chi- lian, and Danish ships and boats (//) . The Eegulations of 1880, which apply to the vessels of other countries, are identical with those of 1884, except as regards fishing- boats' lights and some matters of minor importance, which are noted in the text below. The existing Eegulations are substantially the same as those of 1863. Many of the cases cited below arose under the earlier Eegulations, but are, it is submitted, binding authorities upon the points for which they are cited as to the construction and effect of the existing Eegulations («'). The Eegulations are set out in the Appendix below (/.). Those of 1880 will be found L. E. 4 P. D. p. 241 ; and those of 1884, L. E. 9 P. D. p. 247. (/) The Eiirl If'cmi/ss, G Asp. meaning- wliicli a court of compe* M. C. 3Gi ; ou App. 61 L. T. N. !S. tent jurisdiction has given them." 289. (/'•) Infra, p. 5li7. In the same ((/) See pp. 38, 298, 300, above. Appendix {infra, p. 548) -will be (k) See above, p. 344. found the text of the Regulations (i) Cf. per James, L. J., L. R. .5 ap^n'oved by representatives from Ch. TOG :■ — "Where once certain the Governments of the principal words in an Act of Parliament maritime nations at the Inter- have received a judicial construe- national Marine Conference held tion in one of the superior Courts, at Washington in 1890. It is and the Legislature; has rejieated probable tliat these (Washington) them, witliout any alteration, in a Regulations "will, before long, be subsequent statute, I conceive that enacted in the place of the existing the Legislature must be taken to Regulations, have vised them according tu the steamship — sailing ship defined i lights, 359 Eegulatioxs for preventing Collisions at Sea. Preliminarij. Article 1 (/). In the foUouiiuj rules, every steamship which is under sail ^^^- ^- the term. and not under steam is to he considered a sailing ship ; and Defiuitious : ever// steamshii) which is under steam, n-hethcr under sail or ''?^"\'ps '' ^ (ihip; not, is to be considered a ship under steam. " fcteamship.' This Ai'tiele is identical with xiit. 1 of the Regulatious of 1863, and with Art. 1 of those of 1880. A steam-tuff lyinjj-to under sail, with her engines idle ''"Lndcr . jj • 1 • -1 steam:" and her fires banked up, is "under steam withm the meaning of meaning of Art. 1, and must keep out of the way of a sailing ship {m). In The American and The Syria {n), a disabled steam- ship not under steam or sail, and being towed, was carry- ing her side lights and no mast-head light. It does not appear that she was considered to be wrong in so doing. Special lights are provided for British steam trawlers ; see p. 382, below. It appears that, by vii-tue of o2 & '53 Vict. c. 46, s. 5, ships propelled by electricity or other mechanical power are steamships within the meaning of the Kegulations, so far as a British statute can make them so. Hules concerning Lights. Article 2 (o). The lights mentioned in the follou-ing Articles numbered 3, Art. 2. 4, 5, 6, 7, 8, i), 10, and 11, and no others {p), shall be carried in all weathers from sunset to sunrise (q). {/) CoiTcsponding to the pre- («) L. R. 6 P. C. 127. Hminary paragraph of the Wash- (o) CoiTosponding' to part of iugton Regulations. Art. 1 of the "Washington Eegu- (m) The Jotnic S. liarJ:cr and Tlic hitions. Spindrift, 3 Asp. Mar. Law Cas. [j/) " No other lights wliich may 42. 7/ie Sitiiiiifaidf, 1 Otto. "208, is he mistaken for the prescribed a similar decision by the Suiireme lights" (Washington Regidations). Court of the U. S. Sec T/icIii/roii, [q) By a curious mistake the itifra, p. 415. lights mentioned in thcschcdide to 360 THE REGULATIONS. Art. 2. Neglect of the Kegulations as to lights in unfrequented •ft-aters. A tug is a bteamship ■within the meaning of the Regula- tions. Circum- stances under ■which a ship may sho-w lights ether than the Regulation lights. This Article corresponds with Ait. 2 of the Eogulations of 18G;3, and with Ai't. 2 of those of 1880. It appears that by the maritime law there was no obli- gation upon a ship to carry a light at night. It depended upon the darkness of the night, and other circumstances, wiiether a light was necessary or not (r). Even so late as 1852, saiHng ships did no more than exhibit a light as occasion required, though steamships were at that date by law required to carry lights as at present. There is reason to think that the law as to ships' lights is frequently broken, especially by sailing ships in unfre- quented waters. The luqmnda disaster (1887), in which 299 lives were lost, was caused by a sailing ship in the South Atlantic carrying no lights. At the inquiry held in that case, it was stated by reliable witnesses that it is a common practice for cargo ships out of the track of ships to carry no lights. The effect of this Ai^ticle, when read together with Article 4 and the following Articles, is to place a steam- ship towing another vessel in the same category, generally speaking, with other steamships ; that is to say, the fact that she is engaged in towing does not exempt her from the obligations otherwise imposed on her by the Eegula- tions (s) . Notwithstanding the express prohibition contained in this Article (/) against carrying lights other than the Eegulation lights, a ship may, and it is her duty to, exhibit such a light under exceptional circumstances, when it is necessary to warn an approaching ship that does not see her danger. Thus, in one case, a vessel beating down Channel saw, on her bow, and not altering its bearing, the 25 & 26 Vict. c. 63, -were required to be carried from sunrise to sunset. This la'w ■was in force in the Mersey for 8om(! years. (r) The Victoria, 3 W. Roh. 40 ; The Iron Duke, 4 Not. of Cas. 94 ; The Lo7idondcrrtj,ihid., Suppl. ixxi. But sec conlm, prr Dr. Lushiugtou in 'Tltc Saxonia, Lush. 410, as to a vessel at anchor. (s) The American and The Syria, L. R. 4 A. & E. 226 ; S. C. onapp., ibid. 6 R. C. 127 ; The Warrior, L. R. 3 A. & E. 5.53. (0 And in 25 & 26 Vict. c. 63, 8. 27, where the ■words are " carry and exhibit." RULES COXCERMNG LIGHTS. '361 light of another running up Cliannel. She Lunit a blue ^rt. 2. light over lier quarter in order to attract attention. It was held tliat she was not in fault for so doing (»). This is an important decision ; for previously it had been argued that tlie wording of the Eegulations threw doubt upon the legality of tlie common and useful practice of burning a flare or a blue light to attract attention in case of imminent danger. It would appear, however, that under these cir- cumstances the exhibition of a flare is authorized by Art. 24 {x). So a ship ashore (//), or sunk (c), in a navigable channel, or casting- off from her moorings (r/), or being overtaken at night by a ship that appears not to see her, so that there is risk of collision, must keep a good look-out and warn the approaching ship of the danger. By Art. 11 [infra, p. 3!)1), provision is expressly made for showing a light astern to an overtaking ship. Before that Article was promulgated it was held that a ship was not in fault for showing over her stern to an approaching vessel one of her side lights {b) ; also, that there was no duty cast upon a vessel being overtaken to show any light astern, until it became clear that the overtaking ship was not keeping out of the way (c). The duty of lighting sunken ships and wrecks is, under certain circumstances, cast upon the harbour or lighthouse authority of the district {d). Care should be taken that (ii) The Simla and The City of Mar. Law Cus. 260. Luchwiv, Ad. Div. March. 1884; {z) The Douglas, 7 P. D. lol. Ship. andMerc. Gazette. 8th March, {a) The John Fenicick, L. K. 3 1884 ; followed in The Merchant A. & E. 500. Trbtce, 10 P. D. 139 (a flare); of. {h) The A))glo-ImUa», 3 Asp. The Narragansctt, 20 Blatchf. 37 ; Mar. Law Cas. 1. The Eleomra, 17 Blatclif. 88. [c) The Jane Bacon, 27 W. E. 35. {x) See The John Fenicick; L. R. {d) Sec 40 & 41 Vict. c. 16, and 3 A. & E. oOO, 502. The Washing- the various local Acts. Bormontw ton Regulations (Art. 12) expressly Furness Railway Co., 11 Q. B. D. authorize the use of the flare, and 496, was a case where tlie duty of detonating signals under the was held to be cast upon the local circumstances supposed. authority. See also cases cited (//) The Industrie, L. R. 3 A. & supra, p. 98. E. 303 ; The Thomas Lea, 3 Asp. 362 THE REGULATIONS. Art. 2. Lights must be carried iu the positions required by the law. If lost must be replaced. No excuse for absence of lights that they were being trimmed. Misleading lights. Spare lights. the lights used for this purpose are not such as may mis- lead other vessels. In an unreported case {e), a collision with a wi-eck was caused by the wreck being lit with two vertical white lights, which were mistaken for those of a tug. The Eegulation lights should be exhibited in the posi- tions required by the laAv (./'), although there are circum- stances which would make it appear desirable to exhibit them elsewhere. When there is a haze on the water which obscures the riding light at the elevation required by the Regulations, it seems that a ship would not be held in faidt for exhibiting the riding light elsewhere {(j). It is the duty of a ship that has lost her lights by bad weather or other accident to replace them as soon as possible (//). It is no excuse for not carrying the Regulation lights that they were being trimmed, or that they went out by accident (?'). A wrong and misleading light will almost certainly cause the ship carrying it to be held in fault if a collision occurs (/.■). Notwithstanding the express terms of the Regulations, that the lights shall be carried, it seems that a ship will not necessarily bo held in fault for a collision caused by the absence of lights, or by improper lights, if the Regu- ((') Ad. Div. 1885. (/) As to the height of the second riding light required in the Humber, see Tlic Magneta, 15 P. D. 101, infra, p. 567. {rj) The ALichclimo and The Dacca, Mitch. Mar. Reg., May 25, 1877. In this case it was alleged that there existed at Rangoon a local rule as to riding lights inconsistent with the general Regulations. (A) The Saxonia and The Eclipse, Lush. 410,422; The A iirora and The Robert Inqram, ibid. 327 ; Tlie Grcj Eagle, 1 Bissel, 476 ; 2 Bisscl, 25. (i) The C. M. Palmer and The Larna.v, 2 Asp. Mar. Law Cas. 94 ; 'The Flora Macdonald and The Pales- tine, Holt, 52 ; The Eclipse and The Haxonia, supra ; The Victoria, 3 W. Rob. 49 ; The Sglph, 2 Sp. E. & A. 75, 85. (/,) The Scotia and The Bcrlshire, 7 Blatchf. 308 ; 14 Wall. 170 ; The Rob Poi/, 3 W. Rob. 190 ; ThelTary Eounscll, 40 L. T. N. S. 368 ; The Lome, 2 Stuart's V. Ad. Rep. (Canada) 177 (ship at anchor with a greeu light showing) . RULES CONCERNING LIGHTS. '}63 lation lights Lave been destroyed, and there are no spare Art, 2. ones on board. The point, however, has not been expressly decided. A steamship at anchor, with her mast-head light np instead of her proper riding light, was held free from blame. Her riding light had been broken shortly before the collision in a previous collision for which she was not in fault (/). The duty to equip a ship with fog-signals before sailing upon a voyage, so that she may be able to comply with a llegulation that is enacted, but not in force, when she sails, Avas insisted upon in TJtc Love Bird {m). The same rule wouhl apply to ships' lights. The Ivegulation lights must not be obscured in any way. Ohsruratlon A flare must not be bm-nt so as to make them indis- ° '° "* tinct {n). If a steamship has the wind aft, so as to blow lier smoke ahead and thereby obscure her lights, it is her dut}' to slacken and not go at full speed (o). AVhere a ship carried a bright light in her cabin, which showed on deck and obsciu'cd her side lights, and the other ship alleged that she mistook it for a riding light, the former was held in favdt for the collision {p). The fact that it is only a short time after sunset, and Lights to be fine and clear weather, does not relieve a ship from the carried obligation to carry lights {q). Under the Admii-alty llegulations as to lights it was held that ''it is not to bo said that because it was a bright night it was not necessary to obey the Act of Parliament " (r). By the existing Regulations (Art. 2) vessels are expressly required to carry them in all weathers. When, on account of bad weather, {I) The lyjohcnhavH, 2 Asp. Mar. («) The Sea Ki/mph of Chester, Law Cas. 213 ; but sec The Sylph, Holt, 34. 2 Sp. E. & A. 75 ; The Rob lioij, 3 {o) The liona and The Ava, 2 Asp. W. Rob. 190; The C. M. Taliiier, Mar. Law Cas. 182. 2 Asp. Mar. Law Cas. 94; The {p) The Ida and The Mary Ida, Ileiifires, 9 P. D. 16; for cases of Ad. Div., Feb. 5th, 1S7S. ship's lights going out aud mis- (/) As to these, sec Art. 10, infra. (,-) Geo. IV. c. 78, ss. 8, 9. This Act appears to be still in force. (a) Act of Congress of 28th Feb., 1871, c. 100; The Continental, 14 Wall. 345. (i) See App., p. 572, infra. (c) See Nautical Magazine, 1880, p. 591. (d) As to New South Wales, see 35 Vict. No. 7, s. 94 ; New Zealand, 41 Vict. No. 54, s. 172. For other colonial laws on the subject, see above, 'p. 344. LIf;TITS FOR STEAMSHIPS UNDER WAY. 365 accordancG witli the llogulations is guilty of a misde- Art. 2. moanom', and punisliaLle with a fine of 100/. or imprison- of notcarry- ment for six months U') . And a ship proceeding to sea ^?? ligl'ts to ^ / ^ '■ ^ " nhipowner may be stopped, if she is not properly sup[)licd with lights and master. and screens, or if they are improperly placed (./'). It has been held that, as regards third parties, the shipowner, and not the pilot, is responsible for proper lights being carried {(/). Article -J (//). A seagoing atmmahip (/) icltoi under icay shall carry : — Art. 3. (a) On or in front of the fore-mast, at a height above the Li^^hts for hull of not less than twenty feet, and if the breadth of the ship steamships. exceeds twenty feet, then at a height above the hull not less than such breadth (/•), a bright white light so constructed as to show an uttiforni and unbrohen light over an arc of the horizon of twenty points of the compass ; so fixed (/) as to throw the light ten 2)oints on each side of the ship, viz., from right ahead to two 2)oints abaft the beam on either side ; a)id of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles. (b) On the starboard side a green light so constructed as to show an uniform and unbrolien light over an arc of the horizon of ten points of the com^xiss, so fixed as to throw the light from right alicad to two points abaft the beam on the starboard 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. (c) On the port side a red light so constructed as to show {e) 2.5 k 2G Vict. c. 63, s. 27. It is said that lights are often not c irried at sea. (/) 2.5 & 26 Viet. c. 63, s. 30 ; and see, as to fishing craft, 46 & 47 Vict. c. 92, 88. 6, 12. (ff) The Jiipoii, 10 P. D. 6.5. (/;) Corresponding to Articles 2 and 7 of the Wat-hington Regula- tions. As to steamships under sail, see ib., art. 14. (t) In the Regulations of 1880 "Sea-going this article began steamships, when," /lv(i>iia,3'Ka,r.'L^w authorize vessels to carry range Cas. 977; 19 Wall. 125; The City lights. of London, ^vf ah. 248; and see The («) Cf. paragraph (c) of Art. 5. Janws, Swab. 55; The liosalie, 5 P. {o) The Ly/c nud T/<(0' 11(0111,11.11. D. 245; j«/r«, p. 415. wav LIGHTS FOR STEAMSHIPS UNDER WAY. 36; It seems to liave been held by Dr. Liishington tliat a Art. 3. ship dropping or di-edging with her anchor stern foremost ship with the tide was not recpiired to carry side-liglits (/•). tlredging. But sueli a vessel would seem to be "under way" within the meaning of Ai"t. 3, and, it is submitted, that Article requii'es her to carry side lights (.s). A Thames sailing barge with her mast lowered, dropping with the tide stern foremost tlu'ough the bridges, and assisted by her anchor ahead, was held not to bo a '* sailing vessel under way" within the meaning of the Thames rules {f). Under a former Act it was held that a vessel driving about the sea iu an unmanageable state was *' under way," and required to carry her side liglits {u). Such a case is now provided for by Art. 5. The Regulations contain no special provision as to the Lights of a lights to be canied by a steamship when in tow of another tow.™^ "^^ ^^ vessel {v). In a case where a steamship, with her engines broken down, while in tow carried her usual side lights, and no mast-head light, it does not appear to have been suggested that she was carrying improper lights (.r). There is some doubt whether a bright light caiTied else where than in the position described in Art. 3 is in accord ance ^^■ith the law, although the light is visible in the ^^''P'^' lig-hts required directions, and is in other respects sufHcient (//). exactly The side lights must be so fixed that their range is such o^seired. as is described in the Article. If they are liable to be 'riio Regula- tions as to the fittintr of 1 Otto, 208. See, however, T/ic Helvetia, 3 Asp. Mar. Law Gas. 43 (note), where it seems to have been held, that the tug was, not under way ; but tlie faets are not clear, and the case was not followed in The Jennie S. Barker. See The Jiyron, infra, p. 415. By the AVashington Regulations, a steam vessel imder sail is to carry a black shape. (Art. 14.) (r) See The HiHi/rnu, mentioned by Dr. Deaue, arguendo iu The George Arlde, Lush. 382, 385, as to tliemeaniuLTof "under wav" ; see also Ai't. 6. (s) It was so held by the Court of Appeal in The lloUandta and T]ie John Ornniton, 15 June, 1885. (0 The Indian Chit/, 14 P. D. 24. (a) The George Arkle, nhi nupra, decided under 17 & IS Vict. c. 104. (r) But see Art. 5, Wash. Regs. (.r) The ulmcrwan and 'The tiyria, L. R. 4 A. & E. 22G; on app. L. R. G P. C. 127. (.'/) l^^pon the Regulations of 1SG3, the law officers of the Crown advised that it was not ; see Pari. Pap. No. 53 of 1S74. 368 THE "REGULATIONS. Art. 3. Board of Trade in- structions as to ships' lights. Slight in- fringement of the Regula- tions may bo immaterial. unnecesscarily obscured by tlie sails, rigging, or other part of the ship, it would be held that the Eegulations are not complied with (z). Minute instructions are issued by the Board of Trade to their sui'veyors with regard to the fixing and construc- tion of shij^s' lights. These instructions have not the force of law, so that a ship should be held in fault for a collision merely because her lights are not fitted in accordance with them {a). A ship whose side lights were fixed on the top of a galley, or deck house, seven feet high and six feet broad, 60 that each light was seven feet inboard from the ship's side, was held not to be in fault, the lights being properly screened and visible in the required directions (b). Although the requirements of Art. 3 are not exactly complied with, the ship guilty of the infringement will not be held to be in fault for a collision that could not possibly have been caused by the infringement of the law. In T/te Famu/ J/. Can-ill [(■) it was held that the lights of the other ship not having in fact been seen across her bow, she was not in fault for the collision. And in The Duhe of Sutherland (d) one of two ships in collision was held not to be in fault, although her side lights were partially obscured by the cat-head, the obscuration not being such (r) T/ie Tirznh, 4 P. D. 33 ; The Magnrl ; Tlu Duke of Sntherlatid ; The Fanny M. Carvill, L. R. 4 A. & E. 417 ; The Fanny M. Carvill (on app.), 2 Asp. Mar. Law Cas. 565 ; The Duke of BucclcKyh, 15 P. D. 86. [a) The Magnet; The Bitke of Sutherland; The Fanny M. Carvill, ubi supra. See also observations of Dr. Lushington in The Smnphirev. The Fanny Beck, Holt, 193, as to the value of the ojiinion of the Board of Trade upon ships' lights. (h) The Citii of Carlisle, 2 Mar. Law Cas. O. S. 91. {c) L. R. 4 A. & E. 417; on app. 2 Asp. Mar. Law Cas. 565. In The Emperor and The Lady of the Lake, Holt, 37, Lord Chelmsford said that the Regulations are satis- fied only by a " close and literal adherence to what they prescribe." But see The Fire Queen, supra, p. 54. [d) L. R. 4 A. & E. 417. The Duke of Buccleuyh, 15 P. D. 86, was a similar case, the obscuration being by the foot of the fore sail, but the positions of the ships being such that it could not have affected the collision. Cp. The Hermod, 62 L. T. N. S. 670. I. If; ins FOR sri:\Msiiirs rNi)i;i; way. 369 as would have prevented the other from seeing the former Art. 3. in time to avoid her if she had exercised proper skill. Again, in The Chusan (e), a trawler canying a bright mast-head li gilt in addition to side lights was held free from Llame for collision Avitli a steamer, on the ground that those on board the steamer not having seen the bright light, it could not possibly have contributed to the colli- sion. Previous to the enactment of -30 & 37 Vict. c. 8.j, s. 17, a sailing ship was held not to be in fault, even upon the assumption that her side lights were so fixed in the mizen rigging that they were not visible in the directions requu-ed by the Eegulations, it being proved that the other vessel, a steamship, might, by slackening her speed and using proper care, have avoided her, notwithstanding the sug- gested insufficiency of her side lights (/). And in another case {(j), where the screens of one ship were only a foot in length, and the side lights could be seen across the bow, it was held that she could recover against the other ship for a collision, it being proved that the lights were not in fact seen across the bow. Under the existing law, however, any infringement of the Eegulations as to lights which might by possibility have contributed to the collision, would be held to be negligence contributing to the collision (//). AVhere the side lights were fixed to the pawl bitts, and the other ship alleged that she could not see them, it was held that the ship so carrj'ing them was in fault for the collision (/). A ship having in tow a pilot boat, which carried a mast-head light and no side lights, was held in fault (/.). So where a steam tug carried her mast-head {() 5 Asp. M. C. 476. Dinirlm, 9 P. D. 164 ; see supra, (/) The BougainvUlc \. The Jas. pp. 38, aeq. C. Stevenson, L. R. 5 P. C. 316. (0 The New Ed v. The Giisfav, 1 (//) The Emperor v. The Lady of Mar. Law Cas. O. S. 407. the Lake, Holt, 37, 202. (/.) The Mary Iloiinsell, 40 L. T. (/() The T,r:'!h. 4 P. D. 33 ; The N. S. 368. M. 1! 1! 370 THE REGULATIONS. Art. 3. aud side lights in a line, lashed to a bar placed on the top of a cook house on deck, four feet high and five wide, it was held (in Ireland) that they were improperly placed, and that the tug was in fault for a collision which occurred in consequence (/). "Sea-going" It is not clear why Art. 3 applies, in terms, to sea-going ships only (m). The following Articles as to tugs and sailing ships appear to he applicable to all ships, whether sea-going or not. It would probably be held that it is the duty of every vessel propelled by steam, whether sea-going or not, to carry lights in accordance with the Regulations. In an Irish case it was said by the Court that, the collision having occurred at sea, there could be no question as to the duty of one of the vessels (a tug) to carry the Regula- tion lights of 1863 {)/). It is not clear wliether the distance at which the lights are to be visible is stated in statute or nautical miles. In the French Regulations the distance is given as deuce- mi l/cs. The power of ordering inspection of a ship's liglits, alleged to be deficient, given to the judge of the Admi- ralty Court by statute (o) , was exercised by Sir R. Philli- more in The 3Iagnet{p). The Trinity Masters having inspected them and found them visible for less than two miles, the ship was held in fault under the statute (17) . (/) The Louisa and The Cittj of (o) 24 Vict. c. 10, s. 18. Paris, Holt, 15. [p) L. R. 4 A. & E. 417. (;«.) The corresponding Eegnla- (y) 3G & 37 Vict. c. 85, s. 17. tion in the American Act of Con- In The Buke nf Bucxletuih,uhi supra, gress applies to ' ' all steam vessels " ; the Trinity Brethren inspected The sec The U. S. Grant and The Tally Vaudalia, with her sails set and her llo, 7 Bened. 195. lights in position, for the purpose («) The Louisa, and The City of of seeing the effect of the fonner in Faris, ubi supra. obscui'ing the latter. LIGHTS FOn STEAMSHIPS TOWIXG OTHER SHIPS. 371 AllTlCLE 4 (;•). A fiteam-n/ii'j) ic/irn towing another fihip nhall, in addition to Art. 4. her side linhts, earn/ tiro bnqht white lirjhts in a vertical tine, Lights for , ,, ,, ... ^ 2 J- steam -Hhips one over the other, not kss than three Jeet apart, -so as to a is- towing other timjuixh her from other stea>n-ships. Each of these lights ^'^^v^- shall he of the same construction and character, and shall he carried in the same position as the white light which other steam-ships are required to can-//. This Article differs verbally only from Art. 4 of the Eegulations of 1863, except in the provision as to the distance between the lights, which is new. It is identical with Art. 4 of the Eegulations of 1880. The distinguishing lights required to be carried by a Object of .. P ii n • 11 1 • tu-'8 distin- tug are "for the purpose of warning all approacliing .^uisUng vessels that she is not in all respects mistress of her move- lights. ments" (s), and to show that she is encumbered. There is no provision in the Regulations as to distinguishing lights for a sailing ship towing another ship, or for a steamship in tow. But see Washington Eegs., Art. 5. Art. 5. Article 5 (f). (a) A ship, whether a steam-ship or a sailing-ship, which from any accident is not under command, shall at night carry, j^^^fj^^^^^^ in the same position as the tvhite light which steam-ships are of 1884). required to carry, and, if a steam-ship, in j^lace of that light, gi^n^lsfor three red lights in nlohukrr lanterns, each not less than ten ships not ,j .J , under com- inches in diameter, in a vertical line, one over the other, not nmnd and less than three feet apart, and of such a character as to he l^'^^^^ visible on a dark night, with a clear atmosphere, at a distance of at least two miles; and shall hy day carry in a vertical line, (r) Corresponding' to Art. 3 of carried ; nnd the tug may carry a the Washington Regulations. This stem light for the tow to steer by. code retpures the towing-lights to («) T/(e American and The Sijria, be not less than six feet apart; L. R. G P. C. 127, 131. where the tow is more than 600 feet {() Corresponding to Art. 4 of in lengtli, a thu-d light is to be the NYashiiigton Regulations. ]{ h2 372 THE REGULATIONS. Art. 6. one over the other, not less than three feet apart, in front of ~~ but not hirer than her fore-mast head, three l)Iaek Ijalk or shapes, eaeh two feet in diameter. (b) A ship, whether a steam-ship or a sailing-ship, em- ploi/ed in laijinrj or in piching-up a telegraph cable, shall at night carry, in the same 2'>osition as the white light which steamships are required to carrii,and, if a steamship, in place of that light, three lights In globular lanterns, each not less than ten inches in diameter, in a vertical line over one another, 7iot less than six feet apart ; the highest and lowest of these lights shall be red, and the middle light shall be white, and the;/ shall be of such a character that the red lights shall be visible at the same distance as the white light. By day she shall carry in a vertical line, one over the other, not less than six feet apart, in front of but not lower than her fore-mast head, three shapes not less than two feet in diameter, of which the top and bottom shall be globular in shape and red in colour, and the middle one diamond in shape and white. (c) The ships referred to in this Article, when not maJdng any way through the water, shall not carry the side-lights, but when making way shall carry them. (d) The lights and shapes required to be shown by this Article are to be taken by other ships as signals that the ship showing them is not tender command, and cannot therefore get out of the way. The signals to be made by ships in distress and requiring assistance are contained in Article 27. This Article lias, by Orders in Council, been applied to British and to some foreign vessels (see above, p. 340). Submarine But its operation is complicated by the Submarine Tele- Actfms! gi"apb Act, 1885, mentioned above (p. 341), which re- quires ships laying or repairing cables to conform to the Eegulations adopted by the powers signatory to the Con- vention, which is contained in the schedule of the Act. No such Eegulations have at the present date (1890) been agreed to. Probably the Article will not come into effec- LIGHTS FOK SHIPS ^()T U.NHKR COMMAND. 'i7o tive operation until the Washington Conference Regula- Art . 5. tions have become law. Foreign vessels to wliich Art. o has not been applied, appear to be subject to the corre- sponding Article (Art. 5) of the Regulations of 1880 (m). By Articles 5 and 6 of the Convention above referred to, no craft are to approach or stay within one nautical mile of a telegraph repairing ship exhibiting the required signals, or of a buoyed cable. The Regulations of 18Go contained no Article corre- sponding to this Article (Art. 5) of the Regulations of 1880 and of 1884. Under the existing law it seems that it is necessary for a vessel to be always provided with these globular red lights and signal balls. If she fails to exhibit them when not under command through any acci- dent, and a collision occurs, she will probably be held to have infringed the Regulations ; and, coming within the penalty of 'Si) & SY Vict. c. 80, s. 17, she will probably be held in fault for the collision. It is not clear what the effect of the words " through Not under any accident " may be. A ship hove-to through stress of weather, or for any other reason in the ordinary course of navigation, though she cannot be said to be under com- mand, would not, it is submitted, come within the ope- ration of Ai't. 5. So, if a vessel is taken aback, or gathers sternway when in stays, she would probably bo held not to be " not under command " within the meaning of Art. 5 (a-). A ship which from any accident is not under command is requu-ed to exhibit her side lights as well as the red light or balls when " not making any way through the water," and not otherwise. *■' flaking way through the water " is here clearly distinguished from the " imder way " of Art. 3 and Ai't. G, Avliich expression includes (u) For these Regulatious see {x) See T/ie Arab;/ Maid ("Wreck Maude &: Pollock ou Sliiiipin,":, Coiiimis.-ioucr), "Times," 16th •Jnd ed. vol. 2, pp. 175—178; Ord. December, 1880. in Council of I4th Auj:!:. 1879. 374 THE REGULATIONS. Art. 5. a ship not making way tlirougli the water, provided her anchor is not down, and holding (//). The object of the direction of Art. 5, that a ship not under command shall carry side lights when making way through the water, appears to be to indicate to other ships the direction of her head, and, approximately, her course. If this be the intention of the Article, it is not clear whether a steamship with her engines disabled, driving rapidly to leeward, and making little or no headway, is required to carry her side lights. It seems that she must carry them, though they are likely to mislead other ships. It will be observed that Art. 5 does not in terms exclude the operation of the " meeting " or " crossing " rules in the case of t"s\'o ships approaching each other with risk of col- lision. It is not clear that a vessel carrying the red lights or balls is free from all obligation to comply with the steering and sailing rules, if she is able to do so. The direction to carry side lights when she has way through the water, appears to assume that a ship may be at once "not under command," and able, at least to some extent, to obey her helm. A vessel parted from her anchors, drove over Cardiff sands in a gale of wind, and injured her rudder so as to become unmanageable. Whilst in this condition she came into collision with a vessel to leeward. It was held that there was no statutory presumption of fault on account of her not carrying the red lights. The im})ortance of this decision is, however, lessened by the findings that the cir- cumstances of the case made a departure from the Regula- tions necessary ; that the collision was in fact inevitable ; and fui'ther, that the absence of the red lights could not, by possibility, have contributed to it (z) . Art. 5 has no application to ships at anchor. Perhaps it would apply to a ship ashore in a fair- way {a) . (y) See infra, p. 378. (a) Cf. The Elizabeth and The {z) The Buckhumt, 6 P. D. 152. Adalia, 3 Mar. Law Cas. 0. S. 345; The iHclustric, L. K. 3 A. & E. 303. LIGHTS FOR SAILIXG-SHIl'S. 375 AirilCLK 6 (b). A Sitilinfj-slilp under icai/, or beiiKj towed, ahall carry the Art. 6. mme lightH as are provided by Articled for a steamship under Lijrlitsfor ?my, with the exception qftheicJiite light, n-liich slienhaH never '•aihiig-sbips. carry. This Article is identical with Ai-ticlo o of the lie^ula- lions of 186;}, and Article 6 of the llegulations of 18.S0, There seems to he no doubt that a ship hove-to is under "l-'u'ler way within the meaning- of Article 6. It was so held meaning of under the liegulations of ISG^i (r) ; and a shij) hove-to the term, comes under the steering and sailing rules {d) ; under a former Act there were decisions to the same effect {e) . There was doubt A\-hether trawlers at ^\ork were under way within the Eegulations of 1803 (_/') ; it has lately been decided that they were (,7). This decision is of im- portance as regards trawlers not coming under Ai-t. 10 (see infra, p. 385). It is believed that the practice is for trawlers at w^ork to carry a white light at the mast-head, and no side lights. xVrt. 10 of the liegulations of 1880 l)rovided that trawlers at work should cany theii- side lights ; but the (supposed) alteration in the law met with opposition on the part of the fishermen, and the operation of the obnoxious Article was for some time suspended by Orders in Council (see infra, p. 390). A vessel coming to an anchor while hauling down her jibs, and having little or no way on her, was carrying her side lights ; it appears that she was right in doing so {h) . (/') Corresponding to Arts. 5 and cases were decided are " under 7 of the Washinfrton Ilegulatious. sail." See Swab. Ajip. 1, for these ((■) Thf I'e»)isiih((niu,:i'!sli\v.'Lix\y rules. The same words, "under Cas. O. S. 477 ; and the Supreme sail," occur in the rules made under Court of the U. S. came to the 17 & 18 Viet. c. 104, s. 295. same decision upon the same facts: (/) See The Robert and Ann and The Peiuisijlvania, 19 "Wall. 125. The Lloyds, Holt, oo ; The Edith, {d) The Husalic, 5 P. D. 245. Ir. Rep. 10 Eq. 345 ; Tht English- As to "under way," see above, man, 3 P. D. IS. P- 366. [g) The Dunetm, P. D. 164; (e) The City of London, Swa. 245: infra, p. 387. The Janus, ibid. 55. The words of (//) The Adriatic, 3 Asp. 3Iar. the Regulation under wlxich these Law Cas. 16. ;i7G Art. 6. THE REGULATIONS. It has been said that where a vessel parted from her anchors and drove over a sand in an unmanageable state, owing to her rudder being disabled, it would have been wrong for her to have exhibited her side lights (i). Art. 7. for small vessels. Article 7 {J). Whenever, as in the case of small vessels durhuj had weather, Special lio-hts ^^^^ green and red side lights cannot he fixed, these lights shall he Jce2)t on deck on their respective sides of the vessel, ready for use; and shall, o)i the apj^roach of or to other vessels, be exJiihited o)i their respective sides in sufficient time to p)revent collision, in such manner as to make them most visihle, and so that the green light shall not he seen on the port side, nor the red light on the starboard side. To make the use of tJiese portable lights more certain and easy, the lanterns containing them shall each be painted outside loith the colour of the light they respectively contain and shall he provided icith proper screens. This Article is almost identical with Article 6 of the Regulations of 1863, and is the same as Article 7 of the Regulations of 1880. It is not easy to see to what vessels the Article has any application. Art. 10 provides for boats, and there are few craft other than boats in which side lights " cannot be fixed " and carried, even in the worst weather, if properly fitted. It was assumed in a case in Ireland that a full decked trawler of 41 tons cannot conveniently work her trawl with side lights fixed, and that such a vessel may carry them on deck, even in fine weather and when not at work {k) . This can scarcely have been the intention of the framers of Art. 7. If a vessel seeks to excuse herself for not having her What vessels may carry their side lights on deck. {i) The Buckhurst, 6 P. D. 152. [j] Corresponding- to Art. 6 of the Washing-ton Regulations. {k) TheMargarcl and The Tuscar, Holt, 44. K11)1.N(. LK.llTS. ''^77 side lights fixed in their proper place, and to bring herself Art. 7. within Art. 7, the burden is on her to prove that the liglits could not with safety be carried fixed. In the case of a brig of 250 tons (/), and in another case of a vessel of 239 tons (w?), the Court appears to have doubted whether it was practicable in bad weather to carry them fixed in the usual places. It is submitted that such vessels would not come within the operation of Aii. 7. Article 8 (//). * A ship, ir/icf/wr a atcam-sltip or a miUny-ship, icJicn at Art. 8. ^ anchor, .shall car r if, uhere it can best he seen, hut at a ]ici(jlit Kidin- liyht.s. not exceeding twenty feet ahove the Jndh a ichite light in a globular (o) lantern of not less tlian eight inches in diameter, and so constructed as to shoiv a clear iinif or ni and unbroken light visible all round the horizon, at a distance of (d least one mile. This Article corresponds Avith Art. 7 of the Eegulations of 18G3. The wording is slightly different, but the only alteration of consequence is that the present Art. 8 applies to ships at anchor anywhere, while the corresponding Article of the former rules applied only to ships brought up in a roadstead or fairway. The Article is identical with Ai-t. 8 of the Eegulations of 1880. In The Saxon ia (p) it was said by Dr. Lushington that, by the general law of the sea a vessel at anchor, or a fish- ing boat at work, is bound to carry a light so as to enable other vessels, whose duty it is to avoid her, to have the opportunity of doing so. But there were decisions that (I) The Livingstone, Swab. Adm. aground in a fairway to show two 519 ; see also The Calla, ibid. 465. red lights above the riding light. (m) The Tirzah, 4 P. D. 33. (o) In Canada it has been held («) Corresponding to Art. 11 of that " globuhir" is not essential: the \Va.shington Regulations. Tlii.s The General Birc]i, G Quebec L. E,. code requires vessels of 1 50 feet and 300. upwards in length to carry a second [p) Lush. 410. riding liglit asteni ; and vessels 378 THE REGULATIONS. Art. 8. "Atan.-hor": meauiug of the phrase. Riding light must not be obscured. Sheering about. by the maritime law a ship under way is not always bound to carry a light {i). A riding light was first requu-ed by law in the year 1852 (/<•). As observed elsewhere (/), "at anchor" is opposed to " under way." There is no express decision upon the point, but it is submitted that every vessel fast to an object which is itself fast to the ground is "at anchor," and is required to exhibit the white light. Thus, a vessel riding to a buoy, or alongside another vessel, or moored alongside a quay, or fast to a dolphin, or any other object on the shore, or a fishing boat with her killick on the ground, would, it seems, all be "at anchor" within the meaning of Art. 8. A ship dropping or dredging stern foremost with her anchor atrip is not at anchor within the meaning of the Article (in). A riding light should not be placed where it is obscured in any direction by masts, spars, sails, or rigging. The forestay is a usual, and probably the best, place for a riding light in an open roadstead or river. The fore- shrouds is not so good a place (n). Care must be taken that sails and other gear likely to obscure the light are stowed. A schooner has been held in fault, mider 36 & 37 Yict. c. 85, s. 17, because her main-sail was scandalised, instead of being stowed, and would obscure her riding light to a vessel astern (o). It is assumed that vessels at anchor are stationary (^j), or nearly so ; ships, therefore, when at anchor, must not be allowed to sheer about unnecessarily. A vessel ashore in a situation where other ships may run into her, although probably she does not come within the terms of Art. 8, (i) See supra, p. 360, note (r). [k) Under the Admiralty Rules of that date, made under 17 & 18 Vict. c. 79. (T) See supra, p. 36C. (»«) See The Indian Chief, 14 P. D. 24, for a decision to this effect under the Thames Rules {infra, p. 575.) (w) The Para, Ad. Div. 4th March, 188G. (o) The Tolka, Ad. Div. 14th Dec. 1886. {p) The Esh and The Gitana, L. R. 2 A. & E. 350. KlDINf; LIGHTS — PILOT VESSELS. 370 is reqiiii'oJ to exliibit a light to warn other ships of her Art. 8. position (fj). Ill America, it has been held tluit a ship moored to a Ship muf^rod wharf out of the regular track of ships is not required to exhibit a light (r). But a tug moored to a boom anchored in a fail'- way was held in fault for having no riding liglit up(.v). As to special riding lights for ships in the Mersey, the Special riding Ilumber, dredgers in the Thames, and ships moored in the '° ' ^' 8uez Canal, see the Appendix, below. In the Elbe, a second riding light is often carried astern. In several of the rivers and harbours of Canada, vessels are required to show riding lights at a specified height ; c.f/., St. John Eiver, Bridgwater, llillborough, North Sydney, Gaspe, Nauaimo, Arichat. Fishing vessels and open boats when at anchor are re- quired by Art. 10 {infra, p. 380) to exhibit a white light, visible at least one mile. Article 9 [t). A pilot vessel, when engaged on her station on pilotage dttt//, Art. 9. s/iall not carry the liglits required for other vessels, but shall Lio-hts for carri/ a tchite light at the mast-head, visible all round the P^^"*^ vessels. horizon, a/id shall also exhibit a fare-uj) light, or flare-up lights, at short intervals, which shall never exceed fifteen minutes. A pilot vessel, when not engaged on her station on jjilotage duti/, shall carr// lights similar to those of other ships. This Article is identical with Art. 9 of the Regulations of 1880. There are considerable differences between it and the corresponding Ai"tiele 8 of the liegulations of 1863. Under these liegulations, questions frequently (q) The Industrie, L. R. 3 A. & 310. E. 303 ; Kidson v. McArthur, 5 (») T/tc Tf'illard Sauls/iurt/, cited Scss. Cas. 4th series, 936. 1 Pars, on Ship. cd. 1869, 564. (>■) Culbertson v. Hhnic, 18 How. {t) Washington Kegs., Art. S. 584 ; The Granite tStaie, 3 Wall. 380 THE REGULATIONS. Art. 9. arose as to the proper lights to be carried by pilot boats, when not serving vessels {t). The present Regulations will applv to steam, as well as sailing, pilot boats, should steam pilot boats be introduced. It has been held that a pilot boat in tow of another ship must not carry her mast- head light {i(). A boat with pilots on board, and serving ships, would seem to be a pilot vessel within the scope of Art. 0, whether the pilots were licensed pilots or not {k). It is submitted that a pilot vessel is on her station on pilotage duty within the meaning of this Article, and required to carry the white mast-head light alone, not only whilst actually engaged in putting a pilot on board a ship, but whilst she is cruising on her station either for the pur- pose of supplying pilots or taking them out of ships (x). It has been held in America that a vessel rimning down a pilot boat from which she was taking a pilot was in fault, although the pilot boat was not carrying her proper light (y). Article 10 (z). Art. 10. Open boats and finlting vesach of less tJian twenty tons net registered tonnage, when under ivay, and when not having their nets, trawls, dredges, or lines in the water, shall not be obliged to earry the coloured side lights; hut every such boat and vessel shall, in lieu thereof, ham ready at hand a lantern icith a green glass on the one side and a red glass on the other side, and on approaching to or being approached by another vessel, such lantern shall be exhibited in sufficient time to prevent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. {() The IVunata, 4 Bened. 310 ; ;3 Otto, COO ; The Edinburgh, before the Wreck Commissioner, March, 1879. («) The Ilary Eounscll, 4 P. D. 204; 40 L.T.N. S. 368. {x) This, however, aj^pears not to be the practice in the Hooghly, where the pilot brigs, it is stated, always carry their side lights, and obscure them only whilst hove-to for the pm-pose of putting out a pilot. (y) The City of Washington, 2 Otto, 31. {z) Corresponding to Art. 9 of the Washington Regulations, which, however, diifers from it materially. LlCiUTS FOR SMALL CKA H ANJ) FLSHERMEN. 381 The foJIoxcin(j j>oriion of this Article applies only to finhinrj Art. 10. vessels and boats when in the sea off' the coast of Euro})c h/ing north of Cape Finisterrr : — (a) All fshinfj vessels a)id fishing boats of twenty tons net registered tonnage or upward.^, when under vay and when not required by the following Regulations in this Article to carry and show the lights therein named, shall carry and shoiv the same lights as other vessels under way. (b) All vessels when engaged in fishing witJi drift nets shall exhibit two white lights from any part of the vessel where they can be best seen. Such lights shall be p)l((ced so that the ver- tical distance between them shall be not less than six feet and not more than ten feet] and so that the horizontal distance between them, measured in a line with the heel of the vessel, shall be not less than five feet and not more than ten feet. The lower of these two lights shall be the more forward, and both of them shall be of such a rJiaractcr, a)ul contained in lanterns of such construction, as to show (dl round the horizon, on a dark night with a clear atmosphere, for a distance of not less than three miles. (c) A vessel employed in line fishing with her lines out shall carry the same lights as a vessel when engaged in fishing with drift nets. (d) // a vessel when fishing becomes stationary in conse- quence of her gear getting fast to a rock or other obstruction, she shall show the light and make the fog signal for a vessel at anchor. (e) Fishing vessels and open boats may at any time use a fiare-up in addition to the lights which they are by this Article required to carry and show. Allfiare-up lights exhibited by a vessel ivhen trauiing, dredging, or fishing with any kind of drag net, shall be shown in the after 2)art of the vessel, excepting that, if the vessel is hanging by the stern to her trawl, dredge, or drag net, they shall be exhibited from the bow. (f) Every fishing vessel and every open boat when at anchor 382 THE REGULATIOXS. Art. 10. between sumet and sunrise shall exhibit a white light visible all round the horizon at a distance of at least one mile. (g) In fog, mist, or falling snow, a drift net vessel attached to her nets, and a vessel ivhen trawling, dredging, or fishing with an)/ land of drag net, and a vessel emploi/cd in line fishing mth her lines out, shall at intervals of not more than two minutes mahe a blast with her fog horn, and ring her bell alternatehj. An Order in Council of 80th December, 1884, modifies and adds to this Article, as regards British fishing craft in the seas of the coasts of Europe north of Cape Finisterre. After reciting the powers to modify the Eegulations given by 25 & 26 Yict. c. 63, and the above Articles 3, 6, and 10, the Order proceeds as follows : — As regards steam vessels engaged in trawling ivhen under steam, such vessels, if of tioenty tons gross register tonnage or npicards, and having their trawls in the water, and not being stationary in consequence of their gear getting fast to a rock or other obstruction, shall between sunset and sunrise either carry and shoiv the lights required by the said recited Article 3 of the Eegulations aforesaid, or shall carry and shoic in lieu thereof and in substitution therefor, but not in addition thereto, other lights of the description set forth in Part I. of the Schedule hereto. As regards sailing vessels engaged in trawling, such vessels, if of twenty tons net register tonnage or upwards, and having their trawls in the ivater, and not being stationary in conse- quence of their gear getting fast to a rock or other obstruction, shall between sunset and sunrise either carry and show the lights required by the said recited Article 6 of the Regula- tions aforesaid, or shall carry and show in lieu thereof, and in substitution therefor, but not in addition thereto, other lights of the description set fort li in Part II. of the Schedule hereto. The red and green lights, which are by this Order permitted as aforesaid to be carried in lieu of the lights required by TRAAVLERS 1,10 TITS. 383 Article 3 roid Article G of ihr .said recited Uegnlationn respcc- Art. 10. fii-el//, shall he of such a character as to be risible at a distance of not less than two miles on a dark night with a clear atmosphere. And her JIaJesti/ is 2)leascd further to direct that steam vessels of twenty tons gross register tonnage or upwards, and sailing vessels of twenty tons net register tonnage or upwards, engaged in trawling, when nnder icay between sunset and sun- r/.sr, but not having their trawls in the water, shall, if steam- ships, carry and show the lights required by Article 3 above recited, and, if sailing-ships, shall carry and shoic the lights required by Article 6 above recited. Provided, hoicever, that the modifications and additions set forth in Parts I., II., of the Schedule hereto shall not be applicable to tJte fishing vessels (luil boats of any foreign country, unless and until the .same shall have been made applicable thereto by Order in Council. Schedule. Part I. — Steam Vessels. (1) On or in front of the fore-mast head, and in the same po.sition as the u-hifc light u-hich other steam-skips are re- quired to carry, a lanthorn* showing a white light ahead, a green light on tiie starboard side, a)id a red light on the p)ort side. Such lanthorn shall be so constructed, fitted, and arranged, as to show an uniform and unbroken white light orrr an arc of the horizon of four points of the compass, and an uniform and unbroken green light over an arc of the horizon of ten jwints of the compa.ss, and an uniform and unbroken red light over an arc of the horizon of ten points of the compass ; and it shall be so fixed as to show the white light from right ahead to twoptoints on the bou- on each side of the ship, the green light from two points on the starboard bote * Sic. 384 THE REGULATIONS. Art. 10. io four points abnft the heron on the afarhoard side, and the red light from tico points on the port bow to four points abaft the beam on the ];>ort side ; and (2) a white light in a globular lanthorn of not less than eight inehes in diameter, and so con- sirueted as to sho/r a elcar, uiiiforjn, and ■uid)ro],-en light all round the horizon; the lanthorn containing sueJt u-Jiite light shall be carried lower than the lanthorn sliowing the green., white, and red lights ax (foresaid, so, Jiowever, that the vertical distance between theni shall not be less than six feet nor more than twelve feet. Pakt II. — Sailing Vessels. (1) On or in front of the fore-mast head, a hodhorn having a green glass on the starboard side and a red glass on the port side, so constructed, fitted, and arranged that the red and green do not converge, and so a.s to shou- an uniform and unbroken green light over an arc of the horizon of twelve 2)oints of the compass, and an uniform and unbroken red light over an are of the horizon of twelve points of the comjMSS, and it shall be so fixed as to sho/r the green light from, right ahead to four points abaft the beam on the starboard side, and the red light from right ahead to four points abaft the beam on the port side ; and (2) a white light in a globular lanthorn of not less than eight inehes in. diameter, and so constructed as to shotv a clear, uniform, and unbroken light all round the horizon. The lanthorn containing such white light shall be carried lourr than the lanthorn showing the said green and red lights as aforesaid, so, however, that the vertical distance beticeen them shall not be less than six feet and not more than twelve feet. A further modification of Art. 10 was made by Order in Council of 24th June, 1885. By it British sailing traw- lers, in the seas north of Finisterre, when fishing and not stationary, were authorized, instead of the lights men- tioned in Art. 6 of tlie Eegulations of 1884, and in the trawlers' lights. 385 Order in Council of 30th December, 1884, to carry and Art, lo. show: A white light in a rjlohnlar lanthorn of not less than eight inches in diameter, and so constructed as to show a clear, nnifor)n, and unbroken light all round the horizon, and risible on a dark night with a clear atmosphere for a distance of at least two miles ; and also a sufficient sui)ply of red pyrotechnic lights which shall each burn for at least thirty seconds, and shall, when so burning, be visible for the same distance under the same conditions as the u-hite light. The white light shall be shown from sunset to sunrise, and one of the red pyrotechnic lights shall be shown on approaching, or on being approached by a)iother ship or vessel in sufficient time to prevent collision. It will be observed that Art. 10 of the Eegulations of 1884 relates only to fishing vessels in certain waters; and the addition made by the Order in Council of 30th Decem- ber, 1884, only to British craft {a). The law as to other craft, and to all fishing craft in other waters, is in an unsatisfactory state. To ascertain what are tlie proper lights for a fisherman to whom Art. 10 does not apply, it is necessary to examine the following Acts of Parliament and Orders in Council : — G & 7 Yict. c. 79 ; 25 & 26 Vict. c. 63 ; 31 & 32 Vict. c. 45 ; 38 Vict. c. 15 ; 40 & 41 Vict. c. 42; 46 & 47 Vict. c. 22; Orders in Council of tlie following dates: 9th January, 1863 ; Gth Januar}', 1869 ; 14th August, 1879; 24tli March, 1880; 26th August, 1881; 18th August, 1882; 23rd August, 1883; 2nd February, 1884 ; and a notice pursuant to 46 & 47 Vict. c. 22, s. 29, and dated 26th March, 1884, and gazetted {a) The Regulations of 1884 have quires altogether ditfcreat lights, been applied only to British ships, The Regulations of ISSO will be and the ships of certain foreign found in INIaude &: Pollock, 2ud ed. countries (see above, p. 340). The vol. '2, p. 17o scq., and in Ord. in fishing craft of those countries to Councilof 14th August, 1879. Art. which they have not been applied 10 docs not apply to Dani.sh fishing arc still subject to Ai't. 10 of the craft: Ord. in C. 17th Nov. 1888. Regulations of 1880, which re- M. C C ^9^6 TTfF, TlEOrLATIOXS. Art. 10. 28tli March, 1884, that the Sea Fisheries Act, 1883, is to come into force on the 15th May, 1884. It is probably intended eventually to apply Art. 10 to all foreign fisher- men. It is to be hoped that this will be done, or that the law with regard to fishermen's lights will be reduced to a more satisfactory state than it is in at present. The exist- ing law, which provides different lights for fishing craft of different countries, many of which fish in the same waters, must lead to difficulties, both at sea and in the law courts. The Orders in Council of 30th December, 1884, which enable British craft to carry lights different from all other countries, and that of 17th November, 1888, which excepts Danish fishing craft from the operation of Art. 10, aggra- vate these difficulties. There is a difficulty with regard to the lights of French fishing boats off the coasts of France north of Cape Gris Nez. By the Eegulations of 1884, applied to French craft by Order in Council of 9th September, 1884, and by 46 & 47 Yict. c. 22, s. 6, and Art. 24 of the First Schedule to that Act, they are required to carry the lights specified in Art. 10 of the Eegulations of 1884. By 46 & 47 Vict. c. 22, s. 24, re-enacting & 7 Viet. c. 79, Sclied. 1, Art. 53, they are required, in the waters above men- tioned, to carry the lights specified in the last-mentioned Act. The two enactments are inconsistent, and it remains to be decided which is applicable at the present day. The Sea Fisheries Act, 1883 {b), above mentioned, gives certain powers to sea fishery officers with reference to the inspection of the lights of British fishing boats in the North Sea, as defined by that Act, similar to those given to surveyors by the Merchant Shipping Acts {c). Art. 24 of the First Schedule to 46 & 47 Vict. c. 22, requires the boats of the nations who are parties to the (i) This Act came into force on (c) See 46 & 47 Vict. c. 93, ss. 6, the loth May, 1884 : see Loudon 12 ; 25 & 26 Vict. c. 03, s. 30. Gazette, 28th May, 1884. TT. nVl.F.Rs' T.TttllTS. 381 Convention selieduled to the Ad, namely, (jroat Britain, Art. 10. (lerraany, Belgium, Denmark, France, the Netherlands («-/), to conform to the Regulations as to lights made under 25 & 26 Vi('t. c. 08, and for the time being agreed to by the parties to the Convention (c). Before the enactment of the Eegulations of 1884 there was some difficulty in determining whether a trawler at work was required to carry the mast-head light mentioned in Ai't. 9 of the Eegulations of 186'3, or the side lights of Arts. 4 and 6 of the Regulations of 1880 (,/■). The ques- tion was much discussed in T//e Biincltn, a case which, though decided before the Regulations of 1884 came into force, is still of importance. In T/i(! Dunehii {(j), it was held that a paddle-wheel The BimeJm. steamship {h) with her trawl down, going two-and-a-half knots through the water, and four-and-a-half over the ground, was in fault for a collision with a steamship because she had no side lights exhibited (/). She was carrying at her mast-head a bright light in a globular lantern. The collision occm-red on the 24th of March, 1884, at which date Art. 10 of the Regulations of 1880 was in suspense. Art. 9 of the Regulations of 1863 having, by Order in Council of February, 1884, been substituted " in lieu thereof and in substitution therefor." The effect of the Order in Council, and the construction of Art. 9 (of 1863) were much discussed. Butt, J, held that Art. 9 applied only to " vessels which are either stationary, as a vessel at anchor would be, or at all events, if we are to depart from this, at the utmost to vessels drifting without (tl) As to Norway and Sweden, 18 ; The Edith, Ir. Eep. 10 Eq. SCO iidditioual article to the Sclie- 345 ; The Ditiielm, 9 V. D. 101. dale. (r/) 9 P. D. 1G4. (r) This appears to be the effect (A) Probably a Tyne tug, or vcs- of Art. 21 of the Convention ; but sel of that chiss. the wordinjr is not clear. (J) Under 36 k 37 Vict. c. 85, (/) Sec The liobvrt mxA. The Ann, s. 17. Holt, 55 ; The Euglishman, 3 P. 1). cc2 388 THE REGULATIONS. Art. 10. waytlirongh the water." The Court of Appeal (Brett, M.R., Bowen, and Fry, L.JJ.) affirmed the decision of the Court below, that the trawler should have carried side lights, but held that the term " stationary " in Art. 9, as applied to a trawler, described a vessel not absolutely without motion over the ground or through the water, but a vessel going just as fast as is necessary to keep herself under command. The Chiisan : The decisiou in Tlie Bunch)) was followed by the pro- The Warwick, j^^^icration of the Eegulations of August 11th, 1884. Under those Eegulations, Butt, J., in Tlie Chimin (/•), held, though with some doubt, sailing smacks, " when trawling, i.e., when moving through the water with their trawls down, are bound by Art. 10 (a) to carry the side lights that ordinary sailing vessels caiTy." The collision in that case occurred before the Orders in Council of Dec. 30th, 1884, and June 24th, 1885. Since those orders came into effect, a sailing smack which in clear weather showed a bright light, and burned red flares after she had become stationary by getting fast to some obstruction, was held in fault under Art. 10 (d) for not making the fog signal for a vessel at anchor (/) . The Tweeds- From The Ticeedsdale {in), recently before Butt, J., it appears that a steam-trawler fishing is not at liberty to carry which lights she pleases — the ordinary steamships' lights of Art. o, or the steam-trawlers' lights of the Order in Council of 30th Dec. 1884. She has an option, but the option " must be exercised with discretion, and I think the discretion given must be used in this sense. If a trawler has not only sufficient way on her to keep herself in command, but also sufficient way to act with effect in altering her course for an approaching ship, then what I may call the ordinary Eegulation side lights, that is, the lio'hts prescribed by Art. 3, should be carried, and those in charge of her should act as the Eegulations require an (/.) 5 Asp. 476. (m) 14 P. D. 104. {I) The Warwick, 15 P. D. 189. dale. trawlers' lights, 389 unencumborcd vessel to act. If tlio trawler has no more Art. 10. than just steerage way, and lias little power therefore of keeping out of the way of another vessel, she should carry what I call the extraordinary Regulation lights, namely, the lights prescribed in the schedule (to the Order in Council of 30th Dec. 1884). . . . She should refrain from making any alteration of her course and leave the other vessel to keep clear of her " (n). In this case T/ie Citij of fr/oKcester, steam-trawler, was held free from fault for a collision with the four-masted barque Ttcccdsdale. The trawler was carrying on her mast the two steam-trawlers' lights described in the Order in Council of 30th Dec. 1884, and did not alter her course up to the collision. The construction placed upon the Order in Council by the learned judge, as he remarks, throws a serious responsibility upon persons in charge of trawlers, namely, that of deciding whether theii' way is sufficient to require them to carry side lights or not. Practically, the question must generally be decided in favom' of the mast lights and against side lights, for the fishing is carried on more by the tide than by the ship's head-way, and the trawl warp and gear have at least as powerful an effect upon the ship's course as has the rudder, even in a fresh breeze. It was probably intended by the framers of the Order in Council not to compel steam-trawlers to carry the lights of Art. 3 or those of the Order in Council according to circumstances, but to give them the liberty of carrying which lights they preferred. As regards British and French (o) trawlers in the North Sea, the English Channel, and elsewhere " in the sea olf the coasts of Eui'ope lying north of Cape Finisterre," the law is now clear {p). Ai't. 10 of the Eegulations of 1884 iu) Per Butt, J., It p. D. p. of 1884 are applied. 171. {p) 46 & 47 Vict. c. 22, s. 24, (o) The case is the .same as re- keeping in force the Schedule to gards fishing: craft of all other G & 7 Vict. c. 79, which uieluded a countries to which the Eegulations provision as to the lights of drift- 390 THE REGULATIONS. Art. 10. provides, paragraph (a), tliat ^vllen under way, whetlier fisliing or not, they shall carry their side lights. As regards British and French trawlers elsewhere, and all other trawlers to which the Eegulations of 1884 do not apply, Ai't. 10 of the Eegulations of 1880 {q) is explicit; they must carry the red and green lights on the mast as mentioned in that Article, and they must carry their side lights besides. It is believed that the almost universal practice of trawlers, when fishing, is, and always has been, to carry a white light at the cross-trees or mast-head, and that fisher- men have a strong objection to carry any other lights. Indeed, Art. 10 of the Eegulations of 1880 was suspended on the express ground that the lights provided by it for trawlers were considered by the fishermen to be dangerous for the fishing boats and misleading to other vessels. In a recent case (r) it was proved that the white light, and no side lights, was carried whilst the trawl was on the rail. It remains to be seen whether the specific enactments of tlie Eegulations of 1880 and 1884 will be followed by any change in the practice of fishermen. The decision in T/ic Dunehn show^s that, if they persist in carrying the white light at the mast-head or cross-trees, and a collision occurs, they will almost inevitably be held in fault (.s) . From The Dunehn (/) it is clear that a steam trawler, and it would seem also any steamship fishing with a trawl, is a trawler or fishing vessel. The Eegulations of 1884, except as regards the red, net boats, outside the exclusive fishciy limits of the British islands, as defined by sect. 28 of the Act of 1883, is no longer in force : see 4G & 47 Vict. c. 22, s. 30 [c). {q) This Article, which was sus- pended until 1st Sept. 1884, is now m force for all trawlers not pro- vided for by Ai-t. 10 of the Eegu- lations of 1884. (>•) Thn Lady Eli~ahcth and 77/' I'remicr, Wreck Enquiry, 3rd Dec. 1885. (s) The existing law, which re- quires a trawler to carry lights intended to show to another ship the direction in which the trawler is approaching, is a mistake, and, if obeyed, will lead to collision. A trawler's head never points in the direction in which she is moving, and is often nearly at right angles to it. {/) 9 r. D. IGl. STERN LIGHTS. 391 •whito and greon lights authori/ed by llic Order in Council Art. 10. of 30th December, 1884, have not altered lln' law with regard to the liglits of British and French trawlers in tho seas north of Cape Finisterre. Now, as formerly, they are required to carry the ordinary side lights, and no bright liglit aloft. The law on tho subject has been strangely misunderstood or neglected. Article 11 (u). A s/iij) ir/tir/i is bein(j overtaken hi/ another shall shoicjroni Art. 11. her stern to such last-mentioned ship a ivhitc light or a flare- ii}) light. This Article is identical with Art. 11 of tho Eegulations Lifiht f^r of 1880. The 1 Regulations of 1863 contained no provision g)^ip_ as to an overtaken ship showing a stern light. It was, however, held, under the Regulations of 1863, that the duty of a ship being overtaken at night by another coming in sucli a direction that the side lights of the overtaken ship were not visible to her, and so that there was risk of collision, was, to keep the overtaking ship's lights in view, and, if necessary, to warn her of the danger by showing a light over the stern {x) . It will be observed that the application of Art. 1 1 is not Tliouph no in terms limited, as are the steering and sailing rules, to ^{^^^ cases where there is risk of collision. It ai)}ilies where the ship astern is broad on the quarter, and is broadening, so long as she is overtaking the ship ahead. And it is not necessary that she should be upon a course such that there is, or will be, risk of collision (//). (m) Corrcspomliiiu' to Art. 10 of oOO ; 'T/ii' Earl Spencer, L. E. 4 A. the Wiislnn -shall he provided icith a xtcam trhixtle orotJier Art. 12. cffieicnt steam sound signal, -w placed that the sound may not Sound sioTials he intercc2)ted hg an g ohsf ructions, and with an cfficiod Jog- for thick horn to he sounded hg a hellous or other ijiechanical means, and also ivith an efficient hell. A sailing-ship shall he pro- vided u-itit a similar fog-horn and hell{t). In fog, mist, or falling snow, whether hy day or night, the signals descrihed in thix. Article shall he used as follows — that is to say, — (a) A steam-ship under way shall make with Iter steam whistle, or other steam sound signal, at intervals of )iot more than two minutes, a prolonged hlast. (b) A sailing-ship under way shall m(d;c with Jicr fog-horn at intervals of not more than two minutes, when on the star- hoard tack one hlast, when on the port tuck two hlasts in {rj) The Anglo- IiidUni, 3 Asp. towed ; when under way but sta- Mur. Law Cas. 1. tionary. ()■) See Appendix, pp. 567, 570 ; (t) In the copy of the Regula- The Itipoti, mV.T). Q>h. tions published in the London («) Article 1 5 of the Washington Gazette of 22nd August. 1884, is Regulations, to which this corre- the following note :^ — " In all cases 8pond8, contains many ncAV fog where the Regulations require a signals ; c. g., for vessels anchor- hell to be used, a drum will bo sub- iug at sea; towing and being stitutcd on board Turkish vessels." 396 THE REGUI.ATIONS. Art. 12. succession, and ichcn icith the U'ind abaft the beam three blasts in succession. (c) A steam-ship and a sailing-ship when not under way shall, at intervals of not more than two minutes, ring the hell {a). This Aiiicle is identical with Art. 12 of the Regulations of 1880. It goes into more detail, and is in some respects different from the corresponding Eegulation (Art. 9) of 1863. It contemplates sirens taking the place of steam whistles ; it makes the blasts of the whistle and horn more frequent ; and the indication of the sailing ship's tack by sound is entirely new (.r) . Care must be taken that the " prolonged " blasts of Art. 12 are such as to be distinguishable from the " short" blasts of Art. 19 used to indicate an alteration of the helm(//). It is the duty of a sailing ship tacking in a fog to continue to make the signals for the tack that she was on when she began to go about, and not to change the signal until she gets the wind on the other side (s). Sound signals to be used in thick weather first received statutory sanction by the Admiralty Eegulations of 1st October, 1858. A dii-ection to indicate a sailing ship's tack by sound signal (a horn on the starboard tack and a bell on the port) was also contained in these Eegu- lations. The Eegulations of 1863 contained no reference to this latter precaution. A ship is under way within the meaning of this Article when she is not fast to the shore, or to moorings, or held by her anchor {a) . Therefore, a ship stationary in the water, making no way, in a flat calm, must sound her fog- (?<) "Rapidly for about five so- (y) By the Washington Eegula- concLs " : WuHhingtou Conference tions a prolonged blast is from four Eegulations, Art. \b{d). to six seconds' duration. {x) In America these sound sig- [z) The Constantia, G Asp. M. C. nals have been in use for several 478. years. («) See supra, p. 366. FOG SIGNALS. 397 horn or steam whistlo, provided lier anchor is not down Art. 12. and holding-. Under tlie llegulations of 186-3 it was held that a sailing sliip hove-to in a fog sliould sound lier bell (i^). Before the enactment of any regulation as to sound signals, it was jield to be the duty of a vessel to sound a horn in a fog (e). By local rules in force in different waters ships are required to sound their horns at various intervals. In America it has been lield gross negligence in a steamship not to bo fitted with, a whistle {(/) . AVliat amount, or density, of fog must exist so as to What is make the use of the fog signals necessary, has not been tht"°" ^^^^^^'^ decided by the Courts of this country. A definition <^t' ■'^- 12. arrived at by an American Com-t is probably sufficiently accurate. It was there said that, to give the Article a reasonable meaning, w^e must suppose that its intent is to give to approaching vessels a warning of which the fog would otherwise deprive them, and that it applies where there is fog enougli to shut out the view of the sails, or hull, by day, or of the lights by night, until the vessels are so close that there would be risk of collision (r) . "Where a vessel is in the neighbourhood of a fog bank, or has reason to think that there may be other vessels near her enveloped in fog, the fog signals should be sounded, though she herself is not in a fog (/), This is a reasonable precaution, but it does not appear to be expressly directed by Art. 12, and the omission to do so could hardly be held to be an infringement of the Regu- lations. A vessel using a mouth-horn, and not provided with a mechanical fog-horn, A\-as held in fault for a collision under 3G & 37 Yict. c. 8-j, s. 17 {g). (//) T/ie rf)»]si/h-a)ua, 3 Mar. {e) The Monticdh, Dist. Ct. of Law Cas. O. S. 477 ; and seo Mass. U. S. : 1 Tarsons on Shipii. 19 Wall. 12o. 506 (ed. 1869). ((■) The Carron, 1 Sp. E. & A. (/) The Milanese, 4 Asp. Mar. 91. Law Cas. 318. (rf) The Eh'ctra, 1 Boned. 282. (y) The Love Bird, G P. D. 80. 398 THE REGTTLATIONS. Art. 12. Art. 12 does not in terms roqnire tlie fog-horn to be sounded by mechanical means. Many mechanical horns are capable of being sounded by mouth, and there is reason to think that they are sometimes so used. If it were proved that the horn had been blown by mouth, and not by the bellows or piston, when the ships were at such a distance apart that the horn might have been heard earlier if it had been sounded by the mechanism, the ship on board of which it was blown by mouth would probably be held in fault for the collision. It appears to be the custom of Nova Scotia fishermen to sound a fog-horn when at anchor (//). Such a practice is illegal. The Thames rules differ from Art. 12 of the general Eegulations in not requiring the mechanical fog-horn (/). Proof that a fog-horn was blown at proper intervals on board ship A. will not always raise a presumption of negli- gence on tlie part of those on board ship B., who swear tliat they were listening and heard no fog-horn. Nor Avill such evidence on the part of B. necessarily prove that no horn was blown by A. (k). Art. 10, snpr/i, provides special fog-signals for trawlers with their gear fast to the bottom ; for trawlers with their trawls down ; and for drift-net fishermen riding to their nets. Speed of Ship:^ to he moderate in Focj, S^^c. Article 13 (/). Art. 13. Eve}')/ ship, whetJier a miling s/iip or steam-ship, shall, in a s 1 • th' k f^O^ inist, or falling snow, go at a moderate speed. weather to be rp|^-g ^-ticle is identical with Art. 13 of the Eegulations moderate. mi -t-> i ;• pi ■-,r>c\ i • t • -i of 1880. The Kegulations oi 1803 contamed no similar (/() See Lohnesw. The Barcelona, (l) Corresponding to Art. 16 of 10 Quebec L. R. 305. the Washington Regulations. This (i) See infra, p. 580. article contains a special rule for {k) Sec supra, p. 32. steamships hearing a fog signal. ■^PKKD IN TTIUK WFATTIF.K. 399 l")rovIsion as to sailing- ships' speed ; and tlie reference to Art. 13. snow is now. As to steamsliips the Aiiicle corresponds, and is in terms nearly identical, with part of Art. IG of the Regulations of 1863. Apart from the Kegulations, the law requires a ship to be navigated in a fog at a moderate speed (ni). The Article makes no alteration in the law in this respect. But the effect of an infringement of it, combined with the opera- tion of 36 & 37 Vict. c. 8-"J, s. 17, must not be overlooked. A ship navigating at an improper rate of speed in thick weather would almost inevitably be held guilty of negli- gence contributing to the collision ; and, under the existing law, without reference to the question whether the rate of speed was a cause of the collision (ii). Article 13 cannot be broken without at the same time breaking Article 18 (o). " Moderate " speed is a relative term. It cannot be "What is defined so as to apply to all cases ; what it should be in speed. '^^^ ^ each case depends on the cii'cumstances of the particular case. It ma}' be stated as a general rule, that speed such that another vessel cannot be seen in time to avoid her, is unlawf ul ( ;>) . Speed which is justifiable in an unfre- quented part of the ocean is unlawful, and even criminal, in a crowded roadstead or highway (7) ; and speed that would be moderate for a handy paddle-wheel tug, may be liighly improper for a low powered, heavy, screw steam- ship (r). In the case of T/ie Europn (s), it was said by the Privy Co\mcil : " Tliis may be safely laid down as a rule on all (/«) See The Juliet Erslcine, 6 Not. The SiDi/ma, 2 Mar. LaAv Cas. 0. S. of Cas. G33 ; The Lord Saumarez, 6 93 ; TVie Samphire and The Fannu Not. of Cas. 600. J1>H; Holt, 193 ; The Zadok, 9 P. («) As to the effect of improper D. 114; The Attila, 5 Quebec Bpeed under the old law, see The L. R. 340. lord Saiimiirc, 6 Not. of Cas. 600. (y) The Europa, 14 Jiu-. 027 ; The (o) Per Lord Esher, M. R., 11 Dordoi/iie, 10 P. D. G. P- D- ^5. (,) "See The Ehjda, 4 Asp. Mar. [p) The CitfiofBrookhjiuW.'D. Law Cas. 540. 276 ; 3 Asp. Mar. Law Cas. 230 ; (.s) 14 Jur. G27. 400 THE REGULATIONS. Art. 13. occasions, fog or clear, light or dark, that no steamer has a right to navigate at such a rate that it is impossible for her to prevent damage, taking all precaution at the moment she sees danger to he possible ; and if she cannot do that without going less than five knots an hour, then she is bound to go at less than five knots an hour." In The Batavier [t), it was said by Dr. Lushington : "At what- ever rate she (the steamship) was going, if going at such a rate as made it dangerous to any craft which she ought to have seen, she had no right to go at that rate." A rate of speed which is " moderate " for vessels in the open sea, and out of anchorage ground, would not neces- sarily be " moderate " for a vessel navigating with a fair tide in a river or roadstead, where vessels are likely to be brought up. As regards danger to vessels at anchor, the speed of the other ship over the ground, and not through the water, is that which must be considered ; and in such cases the strength and direction of the tide must be taken into account. As regards danger to vessels under way the tide is immaterial. The duty of a steamship in a fog hearing another approaching her is considered below in connection with Art. 18 ; but Art. 13 applies also in such a case, and speed which Avas " moderate " when no vessel was known to be near may be illegal after the whistle or horn of another is heard to be approaching {ii). "With a fog- whistle sounding ahead, moderate speed for a steamship is " to go as slowly as he can, only keeping his vessel well under command." The object of Art lo is, not merely that vessels should go at a speed which will lessen the violence of a collision, but also that they should go at a speed which will give as much time as possible for avoiding a collision when another ship suddenly comes into view at a short dis- tance {x). {t) 1 Sp. E. & A. 378. {x) See per Sir J. Hannen, The [ti) The Bordognc, 10 P. D. G, 11. Zaihlc, 9 P. D. 114, 115. Sl'KEJ) l.N lllU K WEATUKIt. 401 Seveu knots an hour Avas lield by tlie Privy Council to Art. 18. be too liigli a rate of speed tor an ocean fcteamship in a fog in the traek of sliips 'i<»0 milis lo ilic eastward of Sandy Hook (//) ; and even four knots has been held too fast for a steamsliij) in the ocean in a fog so dense tliat another ship could not be seen seventy yards off {z). In T/tr Zadoh {(i), something over five knots was held by Sir J. Hannen too fast for a barque in a fog in the English Channel. In the Clyde six or seven knots over the ground was held too much for a steamer in a thick fog(/^). Off Cromer, with a whistle sounding ahead, three-and-a-half knots ((•), find in the sea ten miles off Ushant four knots, have been held too fast (d). It has been held in America that it is not enough to slacken until the speed is such as would enable the steam- ship to avoid another vessel which is sounding her fog- horn {('). And from the English decisions it appears that the rate must be regulated by the thickness of the fog, and the probability of falling in with other ships, rather than by the supposed distance at which a horn or bell would be audible. It is, of course, no excuse for excessive speed that the Mail ships, ship is carrying mails, and under contract to deliver them by a certain date (./'). The common excuse, that a rate of Excuses for speed greater than is consistent with safety to other ships gpeed. is necessary for steerage way, is seldom listened to by the Courts ; nor the suggestion that the ship was run at con- siderable speed in order to get out of the fog {(j). (y) 7"//c/'<'«/;a7//(7/;/!V/, 3Mar. Law The Ariadne, 9 Sess. Cas. 4th ser. Cas. 0. S. 477 "; sec also T/ie Citi/ 118. of Ihookliiii, 1 P. \). 276. {c) The Ebor, 11 P. D. 25. (;) The Ma,) The Ivirhj Hall, 8 P. D. 71. siTKi) IN iiiicK \\iAiiri:i;. 40'i It would seem that Art. 13 docs not apply to u sleaiu- Art. 13. ship lying dead in the water with her engines stopped. It steamship neither requires her to get under way, nor forhids her to ^■['J'^atCT'^ ^°^ move her engines ahead or astern (o). Whether a heavy steamship in the track of ships is justified in j'litt^ing her- self in such a helpless position, or whether it is her duty to do so under some circumstances, is a dillicult question for an ollieer to decide, and must depend upon the cii-cum- stances of the particular case. The duty of a steamship under way in a fog has been Buty of thus stated by the fSupreme Com-t of the United States : — L'^aTo"-!^' "■ The best precautions are bright signal lights ; very low speed — just sufHeient to subject the vessel to the command of her helm ; comjietent look-outs properly stationed and vigilant in the performance of their duties ; constant ringing of the bell or blowing of the fog-horn, as the case may be ; and sufficient force at the wheel to effect, if necessary, a prompt change in the coui'se of the vessel" (7;). It has been said in an American case that the meaning Pressure of of the rule that a steamship shall in a fog go at a moderate Vo^^l TloxT speed is, not that she shall only have such a pressm'e of steam as will enable her to go slow, but that she shall have her full steam power, and still go slow, so that she may be able to bring herself to a standstill as soon as possible ((/) . The mere alteration of course in a fog by a steamship Alteration of hearing the whistle of an approaching vessel, is not neces- sarily negligence, though it is made upon a guess as to the distance, position, and course of the other ship (/•). (o) See The Boskcnna Bay, infra, Butt, J., hadhdcl tliatit-wasAvroiig p. 407. to starboard fur a wlu.stlc supposed {p) The Colorado, 1 Otto, C92 ; to be two and a-half points on the cf. The Fraiifoiiia, 4 Bcned. 181. starboard Low, and that the pi'oper (7) 'The Jfausa, o Boned. ')01. inauouuvro wouhl have been at once (r) Thr VtHcloniora, 1-t P. D. 172 ; to stop. It seems that no general ntld. in 11. L., GO L. J. Ad. 1. In rule can be laid down. See also The Resolution, G Asp. M. C. 363, The Rosetta, 6 Asp. ::\r. C. 310. 1) 1) 1 404 nil, iu;gmlati()Xs. Art. 13. Art. 18 does not apply to sailing ships (t) ; but undue Speed of Speed in a fog or thick weather is not more justifiable for sailing ships gj^iii^g ghipg than for steamships. Where a sailing ship had her studding sails set in a thick fog and came into collision with another ship, Dr. Lushington said : " It is unquestionably the duty of a master in intense fog to exercise the utmost vigilance, and to put his vessel under command, so as to secure the best chance of avoiding all accidents, even thougli such precautions maj occasion some delay in the prosecution of the voyage " {u). But in this, and in another case (.r), the sailing ship, though under a press of sail in a fog, was not therefore held in fault for the collision. And in T//e Eh/da a brig in the Atlantic carrying all plain sail and going five knots in a fog was held free from blame (//). In The Citij of Broolchjn (z), Lush, J., said, as to speed: " I think the rule of law with regard to travelling at sea is identical with the law of travelling on the high road. No one on a dark night has a right to go at such a rate of speed as not to be able to escape an accident if he happens to follow immediately in the wake of another, whether it be by sea or land." In very thick weather, or great darkness, a vessel is not justified in running through a crowded roadstead, but should, if possible, bring up {(i). Xor is she justified in the Thames in leaving a wharf in a dense fog for the purpose of going up the river on a flood tide ; and it has been said that the proper way to go up, under such circum- stances, is stern first, dredging with the anchor on the ground, so as to be able to bring up at a moment's notice (b). (l) The Jjcmlogne, 10 P. I). 6, 12. {a) The Victoria, 3 W. Rub. 49; \u) The Itinerant, 2^. lloh.T.i'J. The Georr/c, 'i'isat. oiC&s.lQl; The \x) The Ebcuezer, ibid. 206. Lochlibo', 7 Moo. P. C. C. 427. (y) 4 Asp. Mar. Law Cas. olO. (/;) ThcAyuadillana, G Asp. M. C. {z) 3 Asp. Mar. Law Cas. 230. 390. SPEED I.N THICK WEATilLK. 405 A sailing ship going six-and-a-half knots over a fishing Art. 13. ground on a dark night, whru vessels were visihlo only 100 or 200 yards off, was held in fault for a collision with a trawler (c). In T/ie Hartoii, a stcamshij) entering a fog hank at a speed of eight knots was held in fault (), as to a special fog E. 340. signal for a steamship iiuder these (/) The Lancashire, L. R. 4 A, & circuinstanfes. E. 198. (>•) The lio^knma Bail, Ad. Ct. (m) L. R. 1 A. & E. 201. 14th Jan. 188-3. 408 THE REGILATIONS. Art. 13. with tho i)ussibility, or rather the probability, of injuring ' human life and greatly damaging property. At the same time, the custom appears to have been for this vessel to have gone across in foggy weather, as at other times, and regulations appear lu have been made with a view to preventing accidents, surrounding her with every pre- caution that was possible. ... But one thing appears to me quite clear, that if this ferry steamer thinks herself justified in going across the river in such a dense fog as this, she takes upon herself all the responsibility incident to such a coui'se. She has the advantage if she goes over safely, and she must have the disadvantage if she injures life or property in the course of the passage." Law iu The law in America as to ferry steamers being under ferry boat! ^ Way in a fog seems to be more favourable to the ferry runiimg in a ^^Q^^^-g ^]^an that of this country, as laid down in T/w Lan- ^^' cashire. In The Excltangc {.v), the U. S. Circuit Court held, that while owners of ferry boats have not any exclusive privileges of navigation over owners of other vessels, nevertheless, while the public convenience requires the ferry boats to be running as constantly as possible, the rules which are applicable to the running of such a boat are, that while more than ordinary care, vigilance and caution are required on the part of the ferry boat, she is entitled to more than ordinary diligence on the part of other vessels to avoid her. In another case (y), it was held that a ferry boat is not boimd to stop running in a dense fog. There are other American cases to the effect that vessels are required to know the usual track of ferry boats, and to take precau- tions accordingly, and particularly not to anchor in their track (c) . The speed of vessels in some rivers (ji) is regulated by (*) 10 Bliitchf. ins. Sof jilso [z) The Hinhon, o Bened. 206; IToJfmany. Union J-'crnj of UnioLh/n, 'I'ln- ]lilicj\ Olcott, 104. 68 N. York Rep. SH.i. [n) As in tho Thames and Tees; (y) The Lydia, 11 Blatchf. i\h. see infra, pp. .)71, o80. sAii.iNo sriirs rnossiNo. 409 local rules. These rules are usually ap^ilicable in all Art. 13. weathers, whether thick or fine. Steering and SaU'uig Rules. Article 1-4 {b). When two sai/inf/ships arc approoeJiinfi o)io (mother ho an Art. 14. fo iitcolve ris/i of ro//i-sioii, one of them shall keep out of the Two s-ailin"- irai/ of the other, aHfollous, viz. : — ships. (a) vl .ship irhieh is running free shall keep out of the way of a ship u'hieh is close-hauled. (b) A ship ichich is close-hauled on the port tack shall keep out of the way of a ship tvhich is close-hauled on the starboard tuck. (c) When both are running free with the wind on different sides, the ship which has the uind on the port side shall keep out of the icay of the other. (d) When both are running free with the wi)id on the same side, the ship wJiich is to icindward shall keep out of the icay of the ship which is to leeward. (e) A ship which has the ui'nd (ft shall keej) out of the way (f the other ship. This Article is identical with Art. 14 of the Eegulations of 1880. It is different in form from the meeting and crossing rules (Arts. 11 and 12) of the Regulations of 1863 (('). Its effect, however, is the same, except in one {b) Correspondiug to Art. 17 of the Washiugtou Ktyiilations. (r) As to the origin of the " port- tack ' ' rule, aud of the rule that a ship with the wind free shall keep out of the way, see supra, p. 339. Except, perhaps, as to para- graph (a), the rules of Ai't. 14 embody the previous practice of seamen, irrespective of legislation. But the practice seems to have been loose. Whether the ship on the port tack was always required to bear up and go under the stern of the other, or whether she was at liberty to keep out of the way by taking other steps, was uncertain : see The Hose, 2 W. Eob. 1 ; The JJiiD/frU's, Swab. Ad. 125 ; The Gazelle, 5 Not. of Cas. 101. The rule that the ship on the port tack must give way was ajiplied to a ship with the wind a point or two free : The Sirain/er, 6 Xot. of Cas. 36 ; and also where the course of the other ship was doubtful : The Traveller, 2 W. Rob. 197 ; The Anne and Man/, ibid. 189 ; 2'he George, 5 Not. of Cas. oC8. 410 THE REGULATIONS, Art. 14. " Running free : " mean- ing of the term. case — that of two sailing ships meeting end on, that is to say, with their masts or keels in a line, or nearly so. Such vessels were required by Art. 11 of the Eegulations of 1863 to put their helms to port, a manoeuvre obviously dansrerous for a vessel close-hauled on the starboard tack. The effect of putting the helm of a ship close-hauled on the starboard tack to port being, in many cases, to throw the ship out of command, and to cause imminent risk of collision, it was, under the port-helm rule of former Acts, often a question of difficulty whether a ship close-hauled on the starboard tack broke the law by not porting (c/). As to what is "risk of collision," see above, p. 348. The classification of sailing ships contained in this Article occasions some difficulty. It is probably intended to be an exhaustive and not a cross classification. It is doubtful whether it is either the one or the other ; and the wording- is at least ambiguous. " Eunning free" appears to mean not close-hauled ; but the phrase is not liappily chosen to describe a ship ramp full, /. c, having the wind a point or two free and forward of the beam {c). The words " with the wind abaft the beam" occur in Art. 12. Again, the question arises, whether a vessel which "has the wind aft" can at the same time be " running f ree " ; and, if so, whether (d) or (e) prevails ; Avhether, if she is to leeward of the other ship, Art. 14 requires her to keep out of the way under (e), or to keep her course under the combined operation of (d) and Art. 22. A fm-ther question arises, as to how the {(l) See The Norge and The Wol- verine, Holt's Kule of the Road, 89 ; The AmaUa and Tlie Maria, ibid. 87 ; The Triiiccssnu Lovisa and The ^Irtemas, ibid. 7o. Under the former Acts see The Betsy, 1 Sp. E. & A. 34, note; The Clarence, ibid. 206 ; The Halcyon, Lush. 100 ; Chadwick v. Cdy of Buhlin Steam Packet Co., 6 Ell. & Bl. 771 ; The JJiatifries, Swab. Ad. 1 25. American cases on the same point are— V'/'c Tracy J. lironmn, 3 Bened. 3-11 ; The Helen J. Molway and The Jloore, G Bened. 536 ; The Annie Lindsay, ibid. '290 ; The Sijlvester Hale, ibid. 523. (r) A ship in this condition appears to Ijc treated as close- hauled in the trades, though such a view was not countenanced by the Court : The Earl Wemyss, 6 Asp. M. C. 364 ; on app. 61 L. T. N. S. 28'J. SAILING SHIPS (.'KO.SSING. 41i dividino- line between "running free" and having "the Art. 14. •wind aft" is to be drawn ; whether, for example, a ship with the wind on the quarter, say, three points from dead aft, " has the wind aft." Tliese difficulties will be found discussed at lengtli in The Pricatecr {/), an Irish case. In tliat case the Coui't appears to have been of opinion that a ship may at tlie same time be "■ running free" and have "tlie wind aft" ; and it appears to have been held in the same case that a sliip witli the wind about two points free was close-hauled ; but the latter view receives no support from the Master of the Rolls, who recently expressed the opinion that a ship might be close-hauled when sailing a point off the wind, but doubted whether she would be so when sailing a point and a-half off (ry) . In T/ie iSiiir/apore {h), decided under the Regulations of 1863, Lord Westbury appears to have used the phi'ase " running free " as equivalent to "free" — the term used in Art. 12 of of the Regulations of 1863. But in that case the ship, heading E. with tlie wind at N.W., was clearly both free and running. In T/ic Spr'uHj (/) a smack with the wind from two to four points from dead aft was held to have the wind aft within the meaning of Art. 12 of the Regulations of 1863. A ship required b}' the Regulations to keep out of the A ship re- way of another may do so in any way she thinks proper. kccfT'out'of She may go ahead or astern of the other, and she may put the way may her helm to port or starboard, as she thinks best (/.•). But way .-^he she has no right to embarrass the otlier, or to put her into ^^^"^^ proper. a difficulty. Thus, it has been held in America (/), that where two courses are open to a vessel required to keep out of the way, and slie selects the more hazardous, she is (/) 7 L. R. Ir. 105 ; i»fm, p. 418. Cas. 264 ; The Carroll. 8 "Wall. 302 ; See also 'The Byfogcd Christensen, 4 The Great Eastern, 2 I^Iur. Law Cas. App. Ca.s. G69. O. S. 97. The Washiu-rtttu Regu- (/■/) The T.arl Wemyss, 01 L. T. lations, Art. 22, requii'c her to N. S. at ]). 2'JO. avoid " CTOssiiig ahead of the {h) L. R. 1 P. C. 878. other." »> {i) L. R. 1 A. & E. 'JO. (/) The Empire State, 1 I?ene. Tas. 389. SAILING SHU'S CllOSSING. •ii--; two vessels on opposite tucks Avcre approaching witli risk ol' ^^t. 14. collision, it was held to be the proper course for both to put theu' helms to port(/). Such is not now the law. Before altering her helm, a ship must ascertain what course the other ship is upon, and how she has the wind. Her duty is to wait until she knows what the Eegulations require her to do. A WTong step taken by a ship in ignorance of the other's course will cause her to bo lu'ld in fault if a collision ensues. Hence arise cases of groat perplexity to seamen. A Ahardcaso. ship, A., close-hauled on the port tack, sees a red light of another, B., ahead, and a point or two on his starboard bow. He cannot make out what is B.'s course. Not knowing which Article of the Eegulations applies to his case, A. stands on, and at the last moment bears up, thinking, erroneously, that B. is close-hauled on the star- board tack. At the same moment, B., who has the wind free, bears up. A collision follows, for which A. is pro- bably held in fault, because he did not keep his coui'se. The temptation for A., on first seeing B., to bear up, go about, wear, or to take other steps which he thinks will avoid risk of collision, without regard to the Eegulations, is strong. The following illustration may be suggested :— The wind being north, a ship close-hauled on the port tack and heading E.N.E., sees, within a quarter of a mile, and on her lee bow, a red Hght. The vessel to which it belongs may be either in stays, and heading X., or she may be close-hauled on the starboard tack, and heading from N.W. to W.N.W. ; or, again, she may have the wind free and be heading from W.N.W. to AV. by S. In the fii-st case supposed, the rapid alteration in the bearing of the light as it crossed her bows would assist her in arri^■ing at the conclusion that the other ship was close-hauled on the {t) The Serlngapatam, 5 Not. of Cas. 61, 65. 4li lllE UECrJ.ATIOXS. Art. 14. Meaning of ' ' close- hauled." Whether a shiphove-toi.s within Art. 14 and required starboard tack and lieading about N.W., and in this case the duty of the first ship is clear — to keep out of the way. On the other hand, if the ship to which the red light belonged were light, under low sail, and making consider- able lee- way, the alteration in the bearing of the light would be very slow, and it might easily be mistaken for the light of a ship having the wind free. In this case it would be very difficult for the ship on the port tack to appreciate the actual circumstances of the situation in time to comply with the Regulations so as to avoid a collision. In The Theodore H. Rand {c), the ship on the port tack was held not to be in fault, although she bore up and so caused the collision, because she could not, with reasonable care, have known that the other ship was running free. A vessel may be close-hauled within the meaning of Art. 14, although she is not lying so close to the wind that she cannot luff a trifle without throwing herself in stays {d) . In The Brcadalbane ie) , a brig, heading six points from the wind, and a ship, with her fore-topsail carried away, lieading seven-and-a-half points from the wind, were held to be both close-haided. A ship sailing full and by, and being kept " a good full," would be close-hauled within Art. 14. A ship with the wind free must keep out of the way of a ship hove-to, by virtue, it seems, of Art. 14 (a) or Art. 14 (e) ; for a ship hove-to is close-hauled within the meaning of this Article (/). It has already been stated {g) that Art. 5, relating to ships not under command, probably does not apply to a ship hove-to in the ordinary course of navigation. Art. 14, (r) 12 App. Cas. 247. (d) Tlic Hnujajwre and The JTcbc, Holt, 124 ; L. R. 1 P. C. 378, 383 ; Chadwick v. The City of iJiiblin Steam Favlcet Co., 6 Ell. & Bl. 771 ; The Earl Wemyss, 6 Asp. M. C. 364 ; on app. (U L. T. N. S. 289. (r) 7 P. D. 18G. (/) The Eleanor v. The Alma, 2 Mar. Law Cas. 0. S. 240; The Rosalie, 5 P. D. 215 ; The James, Swab. 60 ; The London, 6 Not. of Cas. 29 ; The Blenheim, 1 Sp. E. & A. 28.3. [g) Supra, p. 373. SAll.INf: SlIll'S ( K()SS1N(;. 415 Art. 14. therefore', api)lie.s to a .ship lyiny-to, so us to require ]i) The PrhciUa, L. R. 3 A. & (*•) The Lady Anne, 15 Jui-. 18. E. 125 ; and see The Lake St. Clair («) The Aimo and The Amelia, 2 and The Undenvriter, 3 Asp. Mar. Asp. Mar. Law Cas. 96. Law Cas. 301 ; infra. it) Wilson v. Canada Shipping {q) The Constitution, '2'iloo.T.C. Co., The Lake St. Clair and The C. 453. Underwriter, 2 App. Cas. 389. 418 THE REGULATIONS. Art. 14. was the duty of Tho Constaufinc to keep out of tlie way, and that the duty of Tlio Spring -was to keep her course («). A full-rigged ship, with the wind free, crossing a brig and a schooner close-hauled on the same tack, was held in fault for approaching them so close that, upon the schooner going about, a collision with the brig was inevitable (x). A ship just gathering way on the port tack, after going about, was held free from blame for a collision with another close-hauled on the starboard tack, which had approached her too near whilst in stays (//). A collision occurred between the barque ;SY. Jean and the barque Privateer. The St. Jean had the wind on the port side about two points free. The Privateer had the wind somewhere between dead aft and three points on the starboard quarter. It was held (in Ireland) that it was the duty of The Privateer to keep out of the way (;:), either by virtue of Art. 14 (a) or Art. 14 (e). The case of TJie Sinfiapore (a) was relied on as an authority for the proposition, that a vessel heading as much as eight points from the wind is " close-hauled " within the meaning of the Regulations. In that case a laden barque was heading seven points from the wind, and was held to be close- hauled. It is submitted that The Singapore is an extreme case, and that a vessel heading more than seven points from the wind cannot be properly said to be close-hauled. A brig was heading E. by N. on the starboard tack, close-hauled, and a ship, also on the starboard tack, and said to be close-hauled (b), heading N.E. by E. half E., was to windward of her. Each vessel pleaded that the other, when first seen, was about four points abaft her own {i.e. the complainant's) beam. It apjDcars to have been (m) The Spring, L. E. 1 A. & E. (z) The Privateer, 9 L. E. Ir. 99. 105. {x) The Mobile, Swab. Adm. 69 ; {a) L. R. 1 P. C. 378. on app. ibid. 127 ; this case was [b) She had carried away her under a former Act. fore-topsail shortly before the col- (y) The Charlotte Eaab, Brown, Usion. Ad. 453. STEAMSHIPS MEETING — 1 UK " END ON " RULE. 419 held that the allegation of the brig was proved — that the Art. 14. ship was overtaking the brig ; and that her duty, there- fore, was to keep out of her way. But the case is not satisfactory, for tlie Court appears to have been of opinion that the sliips were, in fact, not within the overtaking (Art. 22) rule, but within Art. 14 (c). Two ships, close-hauled on opposite tacks, were crossing eacli other. The ship on the starboard tack was held in fault for not keeping out of the way when the other, being aliead and to windward, could not bear up without risk of collision, and could not go about because of a shoal {d). A sloop, with the wind free, was running through a narrow channel against a strong tide close to the shore. Two schooners, the combined length of wdiich was equal to half the breadth of the channel, were beating to windward in the opposite direction. It was held that the sternmost of the schooners was in fault for standing on when under the stem of the leading schooner, so that when she was obliged to go about she ran into the sloop, wiiich could not avoid her without going ashore {c). Article 15 (/). If tiro ships under steam are meetiiKj end on, or nearly end Art. 16. meeting. on, so as to involve risk of collision, each shall alter her course Two ships to starboard, so that each ma// pass on the jjort side of the ""^ff^^^'*"^ other. This Article only apjjlies to cases where ships are meeting end on, or nearly end on, in such a manner as to involve risk of collision, and does not apply to two ships which must, ifhoth keep on their resjiective courses, pass clear of each other. The only cases to which it does apply are when each of the (c) The Breadalhane^lY.Ti. 184. («) The Mark Eveline, 16 "Wall. (d) The Ann Caroline, 2 Mar. 348. Law Cas. O. S. 208 (American (/) Corresponding to Art. IS of case) ; cp. The Maggie J. Smith, the Washington Regulations. 16 Davis, U. S. at p. 354. V V '^ 420 THE REGULATIONS. Art. 15. fico ships is end 0)i, or ^iviirhj end on, to the other ; in other words, to cases in which, htj daij, each ship sees the masts of the other in a line, or neart>/ in a tine, with her o/rn ; and by night to cases in which each ship is in such a position as to see both the side lights of the other. It does not appig by dag to cases in which a ship sees another ahead crossing her own course ; or hg niglit to eases where the red light of one ship is oj^posed to the red light of the other, or where the green light of one ship is ojjposed to the green light of the other, or tvhere a red light loithoid a green light, or a green light without a red light, is seen ahead, or n-here both green and red lights are seen anywhere but ahead. This Article is identical with Art. 15 of the Regulations of 1880. It contains the substance of Art. 13 of the Regulations of 1863, and of an Order in Council of the 30th of July, 1868, explaining the meaning of " end on" {g). The interpreting Order is said to have been made in consequence of the decision in The Cleopatra (A), by which the port helm rule of a former Act [i) was held to apply where the ships were on parallel courses green to green, each being on the starboard bow of the other (J:). The words " each shall alter her course to starboard " are exactly equivalent to " the helms of both shall be put to port" of the Regulations of 1863 (/). The words "so {g) It is not clear that 25 & 26 Vict. c. 63, authorizes an interpre- tation of the Kegulations by Order in Council. No Order in Council applied the interpreting Order to foreign ships out of British juris- diction, and it has been doubted whether the interpreting Order ever affected foreign ships. Any difficulty upon this point is at an end since the existing Art. 15 has been in force. {h) Swab. 135. The case was followed in The Arabian, 2 Stuart's V.-Ad. Eep. 72. (i) 17 & 18 Vict. c. 104, 8. 296. [k) See The Odessa, 4 Asp. Mar. Law Cas. 493. [I) The alteration in the word- ing of the Regulations was pro- bably made with a view to a possible uniformity of system amongst the seamen of all nations as regards orders to the helm. In English ships the order which sends the ship's head to starboard is ' ' port ! ' ' In France the equivalent order is ' ' tribord ! " — the literal translation of which is " starboard." In Lmidon School Board v. Lardner, Times, 20th Feb., 1884, a Thames pilot was held liable for a collision caused by his giving the order in French, "tribord I" with the in- STEAMSHirS MEETING- -THE " EM) ON " RULE. 421 that each may pass on the port side of tlio other " appear Art. 16. to bo merely ex})lanatory. The vessels described in this Article as "ships under steam " are probably the same as those described elsewhere in the Regulations as " sea-going steamships," or " steam- ships " ; and it is not clear why the same tenii is not used throughout. It may here be noticed that a steamship towing another vessel is a steamship within the meaning of the Steering and Sailing llules ; and that, so far as she is able, she is required to comply with Ai"ticles 15, 10, 17, 18, 19, 20, 21, 22, and 23 H- As to the meaning of " so as to involve risk of collision," see above, p. 349. In the existing Regulations vessels approaching each Classification other are described as " meeting " («), "crossing," and ^^gjin-^*^ tention of sending his ship's head to port. The man at the helm, a Frenchman, caiTied out the order in the French cu.stoni, by putting his helm to port, and thereby caused the collision. Some nations, in- cluding America, Austria, and Italy, adopt the English system, others the French ; with the Scandinavian nations, the practice is said to vary in ditferent .ships : see Naut. Mag. 1877, p. 340. Since pilots of one nation are frequently in charge of ships of another na- tion, it is manifest that a uniform system is very desirable. The ap- parent paradox involved in the English system originated with the use of the tiller, the movements of which arc opposite to those of the ship's head. Most vessels being now steered by a wheel, and the tiller being frequently aft of the rudder-head, the orders to the helm are altogetlier anomalous. With a wheel, and a tiller aft of tlie rudder- head, the order to send tlie ship's head to starboard is still " port I " whilst tlio wheel, the tiller, and the ship's head all move together in the ^anie direction, to starboard. It is stated (Naut. Mag. 1879, p. '216) that in most French ships the tiller chains are so rove that the wheel turns to port as the ship's head goes to starboard. From Sir H. Manwayring's Seaman's Dic- tionar}^ (1644), it appears that the existing practice is at least as old as the eai'ly part of the 17th cen- tury-. Probably, it has been the same since rudders and tillers were invented. It must be remembered that when going astern the action of the rudder is reversed, and that the order "port I" and correspond- ing movement of the rudder to starboard, send the ship's head to port. Another sourceof confusion exists in the absence of a uniform system of orders to the helm given by the hand by the pilot or officer on the bridge. In some waters, the order to starboard the helm is given by extending the right hand, in others by extending the left. (ill) The Independence and The Arthur Gordon, Lush. 270 ; infra, p. 427. {n) "Meets" in 17 & 18 Yict. c. 104, s. 296, see uifra, p. 422, had a wider meaning than '• meeting" in the existing Regulations : sec The Cleopatra, Swab. 13-5; see aLso The Inflexible, Swab. 32, as to the application of sect. 296. 422 THE REGULATIONS. Art. 15. crossing', and overtaking ships. case. " overtakiug," or being overtaken. It appears that this classification is intended to include all cases of ships ap- proaching or being approached by others. It is a cross classification, for although no ship that is a " crossing " ship can at the same time come within the rule for " meeting " ships, yet a " crossing " ship may at the same time be an " overtaking " ship, and be bound by Article 20 (o). Abolition of The rule contained in Article 15 is not identical with "^poirt helm" the " port helm " rule of former Acts, or with the older except in one practice of seamen mentioned in a former page (p. 340, fid CO -^ above) (/;) . The existing Regulations limit the application of the " port helm " to one case only, namely, where both the ships are steamships [q) , and they are proceeding in directly opposite directions on the same line, or nearly so. In every other case the " port helm " rule is inapplicable, and the two ships must act as required by the particular Article applicable to the case. There is reason to think that the important alteration of the law effected by the Eegulations of 1863, and continued by those of 1880, has not produced a corresponding change in the practice of seamen. The proper application of the " port helm " rule in its existing shape requires the careful attention of sea- men. Its indiscriminate application has been a fruitful source of collision. It appears from the explanatory part of Art. 15 that the application of that Article is determined, not by the directions in which two ships are approaching each other different from over the ground, but by the directions in which their heads of her^head^ are pointing. The case of a steamship crossing a tideway, Case of steamship making over the ground a course " ships, see D. 8; The lo) See Arts. 14, IG, and 20. As to the distinction between ' ' meet- ing" and "crossing The Franconia, 2 P. Princessan Lovisa and The Artemax, Holt, 75 ; The Wiza and The Ori- noco, ibid. 98 ; The Superb and The Florence Braginr/ton, 1 Mar. Law Cas. 0. S. 237 ; The Feckforton Castle, 3 P. D. 11 ; The Brcndalbanc, 7 P. D. 186; ThcRenton, 9 P. D. 1 ; The Columbia, 10 Wall. 246. (;j) As to the application of the port helm rule of the M. S. A. 1854, see The Arthur Gordon and The Independence, Lush. 270 ; and see cases cited, pp. 423, 424. (7) 17 & IS Vict. c. 104, s. 296, applied to a steamship and a sailing ship : The Ann, Lush. 55. STEAMSHIPS MEETING — HOTH MUST PORT. 42€ of a vessel dropping up stern foreraost with the tide and Art. 15. guiding herself with her helm and anclior (r), or of a tug with a heavy ship in tow making considerable lee-waj, so that she is approaching another vessel upon a course over the ground directly opposite to that of the other, hut in a direction different from that in wliich her head is pointing, does not seem to be expressly provided for. It will be noticed that under the existing Regulations there is no " end on " nde for sailing ships, as there was under the Regulations (Art. 11) of 1863. "Altering her course to starboard" under Art. 15 means How much altering sufficiently to take her clear if the other ship does must be not starboard (s) . The law is that both ships are to alter ^Jt^^ed ; both . ^ ' ^ ships must their courses to starboard, and the neglect by one to obey port ; neither the law will bo no excuse to the other, although there after risk iT would have been no collision if one had ported (f) . determined. Where a ship is in a position to which Art. 15 applies, and she alters her course sufficiently to determine the risk of collision, she is not necessarily required at the same time to slacken under Art. 18 («). There is, however, some obscurity as to the circumstances under which Art. 18 applies. It has been held to apply where there will be risk of collision if the vessels continue to approach each other {x). If two steamsliips sight each other nearly right ahead, but so that each is a little on the stai'board bow of the other, the law requires each to put her helm to port, although a collision would be avoided if each were to star- board, and that appears to be the safer and more conve- nient course. " It is essential that the law should be universally observed. If one obeys and the other does not, (r) As in The Smi/rna, mentioned i»f>'a; Little v. Burns, 9 Court of arguendo in The George Arklt, Lush. Sess. Cas. 4th ser. 118. 382. (m) IVie Jesmond and The Earl of (s) The Jesmond and The Earl of Elgin, supra. Elgin, L. R. 4 P. C. 1. (.r) See per Brett, M.R., The (0 See rA<-./wmca, 'iOtto, 432; Beryl, 9 P. D. 137, 141; infra, The Araxes and The Black Frince, p. 442 ; and see supra, p. 348. on 424 THE REGULATIONS. Art. 16. the utmost confusion and danger will be introduced. A vessel which obeys the law has a right to trust that the vessel which she meets .... will obey it too, and she acts accordingly" (//). What is The meaning of " nearly end on " has not been exactly linearly end ^jQg^g(j_ Yesscls upon parallel and opposite courses, each with the other nearly right ahead, and vessels upon courses making with each other an angle or two, or even three, points, were, before the interpretation of the term by Order in Council of the 30th July, 1868, held to be meeting "nearly end on" {z). But in a case where the courses of the two ships were within a point of being directly opposite (W.N.W. and S.E. by E.) the Privy Council decided that the ships were " crossing," and not " meeting " (r/) . In a case subsequent to the Order in Council, vessels upon courses within one and a half points of being directly opposite (S.S.W. and N.E. ^ N.) were held to be not end on (b). In another case (1870), two steamships going {semhle) N.N.W. and S.E. were held to be "nearly end on" (c). And in a Scotch case, two vessels proceeding up and down the Clyde were held to be end on, each being about half a point on the starboard bow of the other {d). These cases are not satisfactory. If two vessels are approaching each other upon opposite and parallel courses, and each sees the two side lights of the other, two miles off, one point upon her bow, they will pass clear by about {y) Per Lord Kingsdown in The The Stork, Holt, 151; The St. Cyran Araxes and The Black Prince, 15 and The Henry, Holt, 72. Moo. P. C. C. 122; and see The (a) The Constitution, 2 Moo. P. Cleopatra, Swab. Ad. 135. These C. C. 453. cases were under 17 & 18 Vict. c. (ft) The Rona and The Ava, 2 104, s. 296; see also Little v. Burns, Asp. Mar. Law Cas. 182. ubi supra. (c) The Jesmond and The Earl of {z) The Fruiter and The Fingal, Elgin, L. R. 4 P. C. 1. 2 Mar. Law Cas. 0. S. 291 ; The [d) Little v. Burns, The Owl and Kezia and The Victoria, Holt, 70 ; The Ariadne, 9 Sess. Cas. 4th ser. The Princcssan Lovisa and The Ar- 118. temas, Holt, 75 ; The Thames and STEAMSHIPS CROSSING. 425 GOO yards. Tlie side lights of all vessels are visible across Art. 15. their bows to some extent, and of many to a very con- siderable extent. A change of lights from red and green to red alone, or to green alone, shows that Art. 15 does not apply. But a continuous showing of both red and green upon either bow within two points of right ahead would, it is submitted, justify the use of port helm. It would seem that Art. 15 cannot apply to two ships rounding in opposite directions a promontory or a bend in a winding channel, and in such a position that the red light of one is opposed to the green of the other. But it is difficult to say how, in such a case, the ships are required to pass each other, and by what Article of the Eegulations they are governed. It seems that tlie crossing rule (Art. 16) does not apply to them {e). It should be noticed that there is no " end on " rale in force in the river Thames. The corresponding Article (Rule 22) of the Thames rules has a wider application than the Article under consideration (_/'). Article 16 ((/). If two s/iips under steam are crossirnj .so an to involve risk Art. 16 of collisioii, tlie s/tip /r/iic/t has the other on her oirn starboard t^-q j,^jp, side (h) shall keep out of the waij of the other. "iif^^r .steam This Ai-ticle is identical A\ith Art. 16 of the Eegulations of 1880, and with Ai-t. 14 of the Regulations of 1863. >s (c) See The VchcUy, Ii. E. 3 P. seen. There seems, however, to C. 44 ; infra, pp. 427, 428. be no ground for this suggestion. (/) See infra, pp. 582, 585. The Article is clear as to the ship [g) Corresponding to Art. 19 of intended — aqticUe que vir o oiitro the Washington Conference Regu- par estibordo — and its meaning has latioiis. been since authoritatively declared (/i) The Portuguese version of to be in accordance with that of this Article is so worded as to have the Euglisli version. See Pari, given rise to the contention that Paper, c. 3443, Sess. 1882, corre- the vessel required to keep out of spondence relating to the collision the way is the vessel from which between 'The Insulano and The City the starboard side of the other is of Mecca. 426 THE REGULATIONS. Art. 16. As to the meaning of " risk of collision," see alaove, p. 349 ; as to the distinction between " meeting," " cross- ing," and " overtaking " ships, see p. 458 ; as to how a ship is to "keep out of the way," see p. 411 ; and as to the duty of the ship which has the other on her port side to keep her course, see Art. 22, p. 471, below. A vessel coming up with another astern or on her quarter may be at once " crossing " and " overtaking " her within the meaning of Arts. IG and 20. Under such circum- stances the " overtaking " rule (Art. 20) prevails, and it is clearly the duty of the faster ship, whether she has the other on her port or starboard side, to keep out of the way. This is clear from the case of The Beaton (i), the facts of which will be found stated below {k). The following observations of Butt, J., explain the combined effect of Arts. 16 and 20: "The corresponding Article (17) of the Regulations of 1863 (/.•) The HigJigate, 62 L. T. N. S. Law Cas. 468. 841. {x) The Monsoon \. The Neptune, (s) The Long Keivton, 6 Asp. M. 2 Mar. Law Cas. 0. S. 289; Holt, C. 302. 186. M. F F 434 THE REGULATIONS. Art. 17. But a sailing sliip must not go about at an improper time or place, so as to embarrass the steamship {i/). Where a steamship was crossing the English Channel at twelve knots an hour, and ran down a sailing ship with her lights burning and obeying the Regulations, it was said by the Court that she must be in fault. If it was thick, she was in fault for going so fast ; and if it was fine, she was bound to see and avoid the other ship (s). Art. 18. Steamship to slow or re- verse engines if necessary. Article 18 (a). Every steam-sld}), ichen approaching another -ship, so as to involve risk of collision, shall slacken her speed, or stop and reverse, if necessary. This Article answers to Art. 18 of the Eegulations of 1880, and is identical with it. It is almost identical with Art. 16 of the Regulations of 1863 ; the direction in the latter as to speed in a fog being omitted from the present Art. 18, and forming part of Art. 13 of the existing Eegu- lations. Apart from the Regulations, it would be negligence if a steamship, having the opportunity to do so, failed to stop and reverse, " if necessary" (/>) ; and Art. 18 appears to be little more than a declaration of the law in this respect (c). But it will be seen below that an infringement of the Article may cause a ship to be held in fault for a collision, although it did not in fact cause or contribute to it, and although there was no actual negligence. (y) The General Lee, 3 Mar. Law Cas. 0. S. 204 (Irish case) ; The Tutomac, 8 Wall. 5!iO ; and see infra, p. 477, as to the duty of a sailing ship to beat out lier tack. (z) The Samphire and The Fanny Beck, Holt, 193. (a) Corresponding to Art. 23 of the Washington Regulations, which, however, applies only to steam vessels required to keep out of the way. [b) See The Birkenhead, 3 W. Rob. 75 ; The James Watt, 2 W. Rob. 270; The Vivid, 7 Not. of Cas. 127. (c) See per Lord Halsbury, C, in The Ceto, 14 App. Cas. 670, 673; per Loi'd Brainwell, ih. p. 689. RULE AS TO STOPriN'G AND REVKRSING. 4']5 Art. 13 cannot be broken without at the same time Art. 18. breaking Art. 18 {cl). The requirement of Art. 18 is that a vessel, when approaching anotlier with risk of collision shall, whatever her speed may then be, slacken it, if possible ; and, at the same time or afterwards, if necessary, stop and reverse (e). This, it is submitted, is the meaning of the Article, though the construction is not altogether clear ; for the position of the words "if necessary" admit of their being read with, and as a qualification of, the direction to "slacken," as well as of the direction to "stop and reverse." In The Cefo, it was assumed by the learned lords (_/") who referred to the point, that the word " necessary" applied only to stopping and reversing. The necessity which the Aiiicle speaks of is the necessity of avoiding risk of colhsion {(j). " Neces- sary" does not mean that the situation is such that without stopping and reversing a collision woidd take place ; it means rather prudent or expedient {h). Necessity exists, if " the circumstances are such as to convey to the mind of a skilled seaman that risk of collision is so imminent as to make it indispensable to stop and reverse" (/). A steamship in a fog so dense that a vessel could not be seen her own distance off, hearing the whistle of another continually approaching, was held in fault for not reversing until the other vessel was seen (/.•). But the decisions cited below show that the direction to " reverse if necessary " is not confined to cases of imminent danger such as this. In The Ceto [uhi siqjra), Lord Fitzgerald seems to have Necessity been of opinion that, where risk of collision exists, for a ™^\i.eut ship without necessity to stop and reverse so as to bring (d) Per Lord Esher, M. E., The 14 App. Cas. 670, 684. Ebor, 11 P. D. 25. (/«) Per Lord Bramwell, 14 App. (c) See The Beryl, 9 P. D. 137, Cas. 689. 145. ((■) Per Lord Fitzgerald, ibid. (/) Lords Selbome, Watson, p. 690 ; and see per Lord Herschell, Fitzgerald. ih. p. 694. (g) Per Lord "Watson, The Ceto, {k) The Bordogne, 10 P. D. 6. F f2 436 THE REGULATIONS. Art. 18. herself to a standstill is negligence (/). It is submitted that no such general rule can be laid down, though under certain circumstances the manoeuvre may be wrong. In The Beryl {in)^ Bowen and Fry, L. J J., questioned whether the words " if necessary " mean "if it is actually necessary," or, " if the officer in charge should reasonably think that a necessity has arisen." In The Ceto [n), it was held that the latter interpretation is the correct one (o). The exigency of the rule is there defined by Lord Watson (7;) : "In broad daylight, or at night time, so long as a shijj's lights are discernible at a moderate dis- tance I do not think that it is, within the meaning of the rule, ' necessary ' for two approaching steamers to stop and reverse until it becomes apparent to the eye that if they continue to approach they will in all likelihood either shave close or collide. When approaching vessels are enveloped in a fog and cannot see each other, the rule must, in my opinion, apply with greater stringency." After describing the uncertainty which always exists as to the distance, position, and course of a steamship in a fog, whose presence is known only by the sound of its whistle, Lord Watson proceeds : " When two steamships, invisible to each other, by reason of a thick fog find themselves gradually drawing nearer until they are within a few ships' lengths, they are, in my opinion, within the second direction of rule 18, and each of them ought at once to stop and reverse, unless the fog signals of the other vessel have distinctly and unequivocally indicated that she is steered on a relatively safe course and will pass clear with- out risk of collision." So Lord Herschell (q): " The necessity must not be such as to become manifest only when all the facts are ascer- tained. It must be such as would be apparent to a seaman (1) 14 App. Cas. 670, 693. M. R., in The Beryl, ubi supra ; (m) 9 P. D. 137, 144. aud in The Uordogne, 10 P. D. 6. (w) 14 App. Cas. 670. (p) Ibid. p. 68(3. (o) See the judgment of Brett, (y) Ibid. p. 694. RULE AS TO STOPPING AND REVERSING. 437 of orJiuary skill and prudGnco with the knowledge which Art. 18. ho possesses at the time." Lord Esher, M. K., had pre- viously expressed the same opinion : " When you speak of rules that are to regulate the conduct of people, those rules can only apply to circumstances which must or ought to be known to the people at the time. You cannot regu- late the conduct of people as to unknown circumstances" (>•). As pointed out above (Art. 18), it will probably be held Whetlipr to apply in rivers, harbours, and other narrow waters, as ^pp^jg^ j^ aU well as at sea ; and that in waters where local rules of navi- waters, gation are in force it supplements the local rules, and must be read and obeyed in conjunction with them, so far as possible. In a Scotch case it was held to apply in the Clyde, Avliere local rules are in force (.s). In consequence of a leading decision of the House of Effect of non- Lords (/), it is of the highest importance that the con- ^':'^if at^^Is ; struction and application of Art. 18 should be properly 36 & 37 Vict, understood. Like the other Steering and Sailing Eules, it ' ' ' ' must be read in conjunction with Art. 2;} ; but although that Article has been held to justify a steamship in not stopping and reversing where keeping on is the one only chance of avoiding collision, the officer who elects not to stop and reverse his engines, w^here there is risk of colli- sion, takes upon himself a heavy responsibility. The requirements of the law in this matter can only be appre- ciated by a careful examination of the cases. It -was held by the Privy Council that the corresponding TJie Jesmond Article (Art. IG) of the Regulations of 1868 applied only ""^^Ql^""'^ " when there is a continuous approaching of the two ships ;" that Art. 13 and Art. 16 (of the Eegulations of 1863) Avere to be read together ; that, so reading them, it was e\ident (/•) The Beryl, 9 P. D. 137, 138. (a) Little v. Bm-ns, The Owl, and These words were quoted with The Ariadne, 9 Sess. Cas. 4th ser. approval by Lord Hersuhell in The 118. Theodore H. Jt'Oid. 12 App. Cas. (0 The Voorwa^trts ami The Khe- 250 ; and by Lord Fitzijerald in dive, 5 App. Cas. 87G ; see below, The Ccto, 14 App. Cas. 670, 691. p. 440. 438 THE REGULATIONS. Art. 18. that the duty to slacken or stop and reverse under Art. 16 did not necessarily arise at the same moment Art. 13 became applicable ; and that if two ships, approaching each other under circumstances such that the " meeting " rule is apjilicable, port their helms so that there is no longer risk of collision, Art. 18 never becomes applicable, and there is no duty on either ship to slacken, or to stop and reverse (f) . This seems to be the effect of the decision in The Jesmond and The Edrl of Elgin. The facts in that case were as follows : — The Jesmond was a screw steamship of 589 tons register, in water ballast. The Earl of Elgin was a screw steamship of 608 tons register, with a cargo of coals on board. Each ship sighted the other in the open sea at a distance of a mile and a half. They were approaching each other at a joint speed of eight or nine miles an hour, on courses nearly opposite, and nearly end- on within the meaning of Art. 13 of the Regulations of 1863. The Jesmond put her helm to port and brought red to red. She did not slacken her speed, or stop or reverse her engines. It w^as contended that she ought at the moment when she ported to have slackened her speed. It was held by the Privy Council that, having ported and brought red to red, the original risk of collision was deter- mined, and that she was under no obligation then or afterwards to slacken her speed under Art. 16 (of the Eegulations of 1863). This case was followed by the Privy Council in TJie RJtondda {n). The Rhondda The circumstauces of that case were as follows: — The steamship RJtondda rounding Faro Point from the west- ward, to enter the Straits of Messina, saw the mast-head and red lights of Tlie Alsace Lorraine on her starboard bow, distant about a mile. Her helm was put hard-a-port. [t) The Jesmond ami The Earl of (Amer. case). Elgin, L. R. 4 P. €. 1 ; and see {u) 8 App. Cas. 549. The Milwaukee, Browu, Ad. 313 RULE AS TO STOPPING AXD REVERSING. 439 No order was given to the engines, wliicli were going full ^^^- ^^- speed ahead. The vessels were approaeliing eacli other at a combined rate of fiftocni miles an liom\ 0\ving to a current, or eddy tide, taking the sliip on her starboard bow, she did not properly answer her helm. As soon as this was perceived her engines were stopped and reversed. It was held by the Privy Council that T/ir Rhondda was not in fault by the ride laid down in The Khedive (.r), for not stopping and reversing, when the other ship was first seen. If The Rhondda had answered her port helm, the risk of collision would have been determined, and, accord- ing to the interpretation of Art. 16 of the Eegulations of 1863 (answering to Art. 18 of the existing Eegulations), she was under no obligation to slacken her speed or to stop and reverse. It was only when the failure of her port helm manoeuvre became apparent that the duty to stop and reverse arose. She did then stop and reverse, and was therefore free from blame. In the words of Lord "Watson iu The lUtcdke, it was a case where Art. 16 " could not reasonably be held to apply before the moment at which it was actually obeyed" (//). There is some difficulty in reconciling The Beryl de- cided by the Court of Appeal with the decisions in The Je.smond and TJie Rhondda. In The Jesmond it was held that the " meeting " and the " stopping and reversing " rules (Arts. 13 and 16 of the Eegulations of 1863), were to be read together ; in 27ie Beryl, Brett, M.E., held that the corresponding Eegulations of 1880 (Arts. 16 and 22) were wholly independtnit of the stopping and revers- ing ride (Art. 18). He held that Ai-t. 18 "does not in any way modify, clash with, or requii-e to be construed at the same time as, the other rid.es." It is, he said, a wholly independent rule. It applies, like the other rules, at the moment before risk of collision exists, when the position (.(■) 5 App. Cas. 876. (y) o App. Cas. 902. 440 THE REGULATIONS. Art. 18. and action of two steamsliips is sucli as to involve risk of collision. "It must apply if the circumstances are sucli that an officer of ordinary skill and care would he hound to come to the conclusion that, if the ships continue to approach each other, there will he risk of collision " (c) . It does not appear that either The Jesmond or Tito Rhondda was cited in The Beryl; and it may he douhted whether the interpretation placed upon the " stopping and revers- ing " rule in The Jesmond is not preferable to that adopted in The Beryl. The latter case has, however, been followed in the Court of Appeal and House of Lords {a) . The Beryl In TJie Beryl it was not held that the duty to stop and reverse, on the part of the one ship, arose at the same moment as the duty to take steps to keep out of the way, on the part of the other ship. On the contrary, Brett, M.E., held that, after it became the duty of The Aheona to take precautions, The Beryl was not wi*ong in continu- ing her course. But before the vessels came within 300 yards of each other (when the collision was inevitable) Art. 18 came into operation, and The Beryl was in fault for not having stopped and reversed. The Voor- The distinction between The Jesmond and The lOiedive, ThTxhJdfve. subsequently decided by the House of Lords, should be noted. The facts in The Khedive were as follows : — The TChedive and The Vooriraarfs were two ocean steamships of 3,740 and 3,000 tons register respectively. They were proceeding off the coast of Penang at full speed upon nearly parallel and opposite com^ses, each having the other on her starboard bow, green light to green light. When they were from half to three-quarters of a mile apart The Voorwaarts suddenly ported, showing her red to The Khe- dive, and thereby caused risk of collision. The helm of The Khedive was put hard-a-starboard. This was held to be a right manoeuvre. At the same time the order was {z) Fer Brett, M.R., 9 P. D. 141. The Memnon, 59 L. T. N. S. 289 ; («) The I)ordof/ne, 10 P. D. 6 ; 62 ih. 84. RULE AS TO STOPPING AND REVKRSINO. 441 given to stand by her engines ; a minute and-a-half after- Art. 18. wards the engines were stopped and reversed ; one-and-a- ' ~~ half minutes after this the collision occurred. By not slackening her speed or stopping and reversing when the red light of T/ie Vooncaarts came into view The Khodive infringed Art. 16 (of the Eegulations of 1868). The House of Lords held her in fault under 'J7 & -iS Vict. c. 85, s. 17. The Coiu-t of Appeal had gone into the question whetlier, having regard to the suddenness of the peril caused by Tlic Voonraarfs' change of course, the captain of The Khedive had shown want of proper care, skill or nerve in not giving the absolutely right order to the engines for a minute and-a-half after The Voonranrfs' red light came into view ; the House of Lords held that, having deliberately elected to keep his engines going ahead full speed, and not to stop and reverse, he had infringed the Eegulations, and was therefore in fault under 36 & 37 Vict. c. 85, s. 17 {h). There i^ difficulty in reconciling the decision in The The Benares. Benares (c), a case subsequently decided by the Court of Appeal, with some of the dicta of the learned lords who addressed the House in The Khedive, and even with the principle upon which the decision in the latter case appears to be founded. But l^he Khedive was before the Court of Appeal in The Benares, and the intention of the Court was to decide nothing contrary to The Khedive. That case was distinguished as depending upon special and difPerent cir- cumstances. The circumstances differed in this : that in The Khedive the not stopping and reversing was wrong, as matter of seamanship, and probably contributed to the collision (see 5 App. Cas. 898, 899) ; whereas in The Be)iares the departure from the Regulations was "the one chance still left of avoiding danger which was other- wise inevitable." The manoeuvre adopted — keeping on at {!)) Sec furtlier as to this case, (c) 9 P. D. 16. supra, p. 47. 442 THE REGULATIONS. Art. 18. full speed — though unsuccessful, was held to he necessary The Benares, within the meaning of Art. 23, and therefore in accordance with the law. At first sight The Khedive seems to decide that a steam- ship will always be held in fault if, having an opportunity to stop and reverse, and not being compelled to keep on by danger other than that of collision, she does not stop and reverse before the collision occurs. But although there are dicta in that case pointing to such a conclusion, the decision as applied to the facts of the case does not go so far. If the circumstances are such that departure from Art. 18 was necessary within the meaning of Art. 23, a ship will not be held to be in fault though she does not stop or reverse before the collision. Such circumstances existed in The Benares. A steamship. The Gerarda, going seven knots, saw a green light a point on her port bow distant about three-quarters of a mile. Her helm was put to starboard, and very shortly afterwards The Benares was seen with her port side open and showing no red light. The helm of The Gerarda was put hard-a-starboard and the engines kept on full speed. The Benares struck The Gerarda on her starboard side. It was found that the first starboarding of The Gerarda was not wrong, and that after seeing The Benares' port side the only chance of escaping collision was for The Gerarda to hard-a-starboard and keep on at full speed, as she did. It seems therefore, that not to stop and reverse when a collision is in fact in- evitable, but in the reasonable opinion of the person in charge may possibly be avoided by keeping on full speed, is not an unnecessary departure from the Regulations. Tlie Beryl. The case of The Beryl was as follows : — The Aheona and The Beryl were steamships crossing at right angles, The Abeona having The Beryl on her starboard hand. The Beryl, when some considerable distance off, whistled twice, and, when from a quarter to half a mile off, eased her engines. At this time The Aheona ought to have, but had RULE AS TO STOPPING AND REVERSING. 443 not, stopped or reversed her engines, or altered her course. ■^^^t. 18. Then she eased her engines. If she had not eased there would liave been no collision ; but by easing she " counter- acted Tlir Bcri/i^H manoeuvre." When the vessels were so close tliat a collision was inevitable — about 300 yards apart {d) — both stopped and reversed. It was held by Butt, J., tliat The Abroua had been wrongly manoeuvred from first to last, and that T/u- BrrijI had been " properly navigated according to the Regulations " (e). It will be observed that The BenjI did not reverse her engines until the collision was inevitable. Upon appeal tlie decision of Butt, J., as to The Berijl, was reversed. The Court of Appeal hold unanimously tliat the duty of The Beryl, under Art. 18, was not fulfilled by slackening her speed at the time of her whistling the second time ; and that her duty was to have stopped and reversed her engines at some time between the second whistling and the moment at which the collision became inevitable. In the case of The Ilemnon {/), tliat vessel was held to nc Mcmnon. blame for a collision with Tlie S(ni Salvador. They were steamships crossing nearly at right angles, and The San Salvador, though she had The Memuoii on her own star- board bow, took no step to avoid collision until she was within three ships' lengths of her, when she starboarded. The course and speed of The Memnon were such that, had The San Salvador kept her course, The Jfemnon would have passed ahead of her without collision, and The Jlemnon stopped her engines as soon as The San Salvador star- boarded. It was held that The Jlemnon, as well as 'The San Salvador, was to blame ; that those on board her were not justified under the circumstances in assuming that The San Salvador would do what was right; that they (d) See the report of the case on (/) G Asp. M. C. 317. In Dom. appeal, 9 P. D. 137, 142. Proo. G2 L. T. N. S. 84. This ((■) 9 P. D. 4. case is referred to more fully ante, p. 52. 444 THE REGULATIONS. Art. 18. ouo-ht to have seen tliat the courses of the two vessels were involving risk of collision, and accordingly that they ought to have complied with Art. 18 earlier than they did. The Arratoon A steamship, A., by porting to another, B., that was ^'"'"' approaching her with all her lights showing, shut in the green light of B. ; but B. by perverse starboarding brought her green again into view ; thereupon A. again ported and shut in B.'s green; B., continuing to starboard, again brought her green into view, and a collision followed. It was held, under 37 & 38 Yict. c. 85, s. 17, that A. was in fault for not having stopped and reversed before the collision {g). The stanmore. In The Sfaumore the duty to stop and reverse, and not to stop only, was insisted upon. There the alteration of the other ship's course at the distance of a quarter of a mile was indicated by the apparent closing of the mast head and side light (/?\ The Thames In TJie Thames and The Lutetia a vessel was held in ^Lutetia fault for not having stopped and reversed " when the risk of collision must have been apparent " (/). So, in America, where two steamships, The C. and The J/., were approaching one another on nearly parallel opposite, but slightly converging lines, and in a position to jiass clear, The C. ported and ran across TJie 31., render- ing collision imminent, and The M. did not slacken, signal, or reverse till after the porting of The C. It was held that The M. as well as TJie C. was to blame, the Court saying that there was such uncertainty in the movements of The C. as called for the closest watch and the highest diligence (,/) . {ff) The Arratoon Apcar, 15 App. (*) McZarev v. Compagnie Fran- Cas. 37. <;aise de Navujaiion a Vapcur, The (h) The Stanmore, 10 P. D. 134. Thames and The Lutetia, 9 App. As to the closing of the lig-hts Cas. 640, 651. indicating a change of course, see {j) The Manitoba, 15 Davis U.S. above, p. 350. 97. RULE AS TO STOPIMN'O AND IlKVEUSING. 44o Wliero A., a steanisliip rounding Tilbury Ness in the Art. 18. Thames, under a port liehn, was approaching B. on the The Libra. other side of the point in such a position that, if she had not been under a port liolm, there would have been risk of collision, it was held by Brett, L. J., that it was not A.'s duty to stop and reverse under the Tlianies Eule No. 14, wiiieh is very similar in terms to Art. 18 (/.). The application of Art. 18 to a steamship hearing the Application fog-horn or whistle of another ship m a log, is illustrated a fojr. by the following cases : — The Kestrel was a loaded steamship of 392 tons register. The Fmnkland and The Franklaml a loaded steamship of 541 tons register, ^^estrd. The Frankknul was at sea, going at a moderate speed, in a thick fog, on a S.S.E. coui'se. She heard a whistle sounded many times, indicating that a steamship [Tlie Kestrel, on a N.N.W. course) was approaching, and had come very near to her — so near, that if the vessels had then stopped, they would have been wdthin hailing distance. It appears that when she fii'st heard Tlie Kestrel's whistle she stopped her engines, and that she did not reverse them until The Kestrel's red and mast-head lights were seen about a ship's length off a point on the starboard bow. It was held that The FranlclcnnPs engines should, in compliance with Art. 16 of the Eegulations of 18G3, have been not only stopped, but reversed, so as to bring the ship to a standstill as soon as the approaching w^histle indicated that the ships were within hailing distance (/). In The Love Bird {m), a steamship in a thick fog, going The Love three knots, heard the blast of a fog-horn nearly ahead. She was held in fault for not having stopped or reversed her engines until the other vessel was seen about a length off. In The Kirhij Kail {n), a steamship in a very dense The Kirby Ik) 6 P. D. 139. {»i) 6 p. D. so. m The Frankland and The Kes- («) 8 P. D. 71. trel, L. R. 4 P. C. 529. 4-16 THE REGULATIONS. Art. 18. fog was held in fault for not stopping her engines and bringing herself to a standstill, as soon as she heard the whistle of another steamship in close proximity. The decision in this case went further than the facts of the case required. The fact was, that The Kirhy Hall heard the whistle of the other ship, The City of Brussels, twice, on the port how, the second blast being nearer than the first. The engines were not stopped until the whistle was heard the second time and the mast-head light of TJte City of Brussels was seen nearly right ahead, distant from one to two ships' lengths. The Barton. A steamship sighting a barge at anchor in the Thames without a light, and at a distance of a ship's length, stopped her engines, but did not reverse them. Butt, J., expressed his opinion that she ought to have reversed her engines upon the barge being reported (o). The John A steamship in a dense fog, hearing a whistle on her port bow, slackened her speed ; she heard the whistle again, and nearer to her. It was held that she was in fault under Art. iS for not stopping and reversing upon hearing the whistle the second time. In this case Brett, M. R., said : "It may be laid down as a general rule of conduct that it is necessary to stop and reverse, not indeed every time that a steamer hears a whistle or fog-horn in a dense fog, but when in such a fog it is heard on either bow and approaching, and is in the vicinity ; for then there must be risk of collision " {p). Lord Herschell, in The Ceto {q)f used similar language : "I think when a steamship is approaching another vessel in a dense fog she ought to stop, unless there be such indications as to convey to a seaman of reasonable skill that the two vessels are so approaching that they will pass well clear of one another." And Sir James Hannen, in The Rosetta (r), held that the (o) The Earton, 9 P. D. 44. 687. [p) The John M'Tntyre, 9 P. D. {q) 14 App. Cas. 670, 695. 135, 139 ; approved by Lord Wat- (r) 6 Asp. M. C. 310. son, The Ceto, 14 App. Cas. 670, M^Intyre. RULE AS TO STOPPlNCi AM) REVERSING. 447 duty of a man -who hears in a fog a whistle which he takes Art. 18. (at a guess) to be two or three points on his bow, is to reduce liis speed until his engines are only just moving, or to stop them, and when he is beginning to lose steerage way, then, and only then, put them on again, but as slowly as it is possible to do so. The Do r(/o(j )U' (s), in a fog so dense that vessels could The Lordogue. not be seen by each other their own distance apart, in the ocean off Ushant, heard three times, at least, the whistle of another approaching. Within ten or fifteen minutes of tlie first whistle being heard, the ships were in collision. The Dordo). From a Scotch case before the House of Lords, it appears that neglect to obey Art. 18 will cause a ship to he held in fault, if the omission, though it could not have contri- buted to the collision, might have caused or contributed to the damage (c). And in The Voonraarfs and The Khedive, Lord Watson said that the rule (Ai^t. 16 of the Eegula- tions of 18G3) was enacted " with a view to obviate the risk and minimize the refiitlfH " of a collision {d). Ai't. 18 has no application to a steamship lying dead in the water with her engines stopped. There is some diffi- culty in saying what, under the Regulations, is the duty of a vessel so situated in a fog, and hearing the whistle or horn of another vessel approaching her. Neither does Ai't. 18 forbid her to set her engines ahead or astern, so as to get some way on and be to some extent under command (r) ; nor, on the other hand, does Art. 13 require her to move. A paddle-wheel steam trawler, going through the water (,/') one or one-and-a-half knots with her trawl down, saw a sailing ship approaching her with both side lights open for ten or twelve minutes. She stopped without reversing her engines as soon as danger became imminent. It was assumed by Butt, J., that Art. 18 applied to her (f/), and he lield that she had complied with it. Though Art. 18 does not apply to sailing sliips, it has been said that a sailing ship in a fog, or under circum- ( i ) The Em my Haase, supra . (c) Maclaren v. Compagriie Frnn- qaise de Xariijatinn a Vapeur, The 'Thames and The Lutetia, 9 App. Cas. G40, 649, G52. (d) 5 App. Cas. 903, 904. (e) In The Boskinva Bay and The Earl of Dumfries, Ad. Ct. 14th Jan. 1885, this question was con- through the sidered. (/) The Tirerdsdale, 14 P. D. 164. That she ■was going water is clear from the facts. {(/) At least as regards stopping. As to reversing, probably, she could not with safety, because of her trawl warp. RULE AS TO STOPPING AM) KK\ KHSINCI. tOl stances similar to those in wliich Axt. 18 applies, is under Art. 18^^ a corresponding obligation to shorten sail aud reduce her speed as much as possible {/i). Where a steamship has been in collision, and it is proved The burden or admitted that she did not before the collision stop or ve" eUhlt reverse, it seems that the burden is on her to show why 'Iocs not she did not comply with Art. 18. This burden she may to show why discharge by showing that she was unable, or had not the f^^^^^ ^^^ opportunity, to stop aud reverse (/), or that the omission to do so was the one only chance of escaping collision {k). In America, it has been held by the Supreme Court that the rule requiring a steamship to slacken does not apply where, if botli ships continue their courses, they will pass clear, although, if either deviates from her coui'se, there will be risk of collision (/). A steamship being overtaken by another vessel is not Overtaken " approaching " the overtaking ship within the meaning ^ ^^™"'* ^" of Art. 18. Her duty, therefore, is to keep her coui'se under Art. 22, and not to slacken under Art. 18, for that Article does not apply to her {m). To comply with Art. 18, a vessel must not only slacken Engines not or stop, but she must not set her engines ahead again until ahea/until the risk of collision is past {ii). risk is over. If a steamship sights another ship or her lights, and Duty to stoii cannot clearly make out what course she is upon, it is her gnSs'^where duty at once to slacken until she can ascertain what the the other stranger's course is, so that she may be able to take the or course measures required by the Eegulatious (o) ; and she must cannot be do 80 before altering her helm, or taking any decisive step ; (;i) See per Brett, M. R., The (m) The Franeonia, 2'P.'D. S. Dordoffne, 10 P. D. 6, 12. and 866 (») In Doicell v. General Steam supra, p. 40o. Navigation Co., o Ell. k B. 195, (i) See The Khedive, 5 App. Cas. under the old law, it was held that 876, 902. a ship Was in fault if she did not [k) The Benares, 9 P. D. 16. continue to exhibit a light so long [l) The Free State, 1 Otto, 200 ; as daneed astern.''^ The use of these signals is optional (c) ; but if they are used, the course of the ship must be in accordance with the signal made. This Article was not contained in the Regulations of 1863. It is in the same terms as Art. 19 of the Regula- tions of 1880. It applies only where a ship intends to comply with the Regulations, and is desirous to call the attention of the other ship to her intended course. Such signals have heen in use in America for many years. It has heen there held that a vessel cannot, by means of these signals, dictate to the other ship a depai'ture from the Regulations (r/). Care must he taken that the " short" blasts of Art. 19 are not confounded with the " prolonged " fog-signal blasts of Art. 12. It wUl be observed that Art. 19 applies only where the Mati-innis, Esq. In connection handed. Wlicn going ahead at a with this subject, the following moderate or full .speed she answers facts, collected from the above her port helm quickest with a soui'ces, may be not without iute- right-handed, and her starboard rest: — A screw steamship usually helm with a left-handed screw, answers one helm quicker than the (a) Correspouding to Art. 28 of other, whether going ahead or the Washington Regulations, astern ; but ditt'ereut ships behave {/>) Of about one second's dura- ditlerently in this respect. "Wlien tion : Washington Regulations, just starting a tteamship will (c) By the Washingtou Regula- answer her starboard hehn quickest tions they are compulsory, if her screw is right-handed, aud (d) The Milicaiikee, Brown Ad. her port helm if her screw is left- 31:5. 456 THE REGULATIONS. Art. 19. Meaning of the words "I am directing my course to starboard" (or port). otlier vessel is in sight. In a fog so dense that the other vessel cannot be seen, it seems that it has no application, Douhts have been raised as to the meaning of the words " I am directing my course to port" (or starboard). It is submitted that these words mean " I am putting my helm to starboard" (or port, as the case may be). The reason why these latter words are not used is indicated in a former page, where it is pointed out that in Art. 15 similar words, " alter her course to starboard," are substituted for " the helms of both shall be put to port," the words in the Regulations of 18G3. It has been suggested that " I am directing my course to starboard " is ambiguous, and may mean " my present course will take me on your starboard side." It is submitted that this is not the intention or meaning of the Article. The object clearly is to apprise the other ship of an alteration of the helm at the earliest possible moment. It is of the greatest importance, when ships are at close quarters, that each should know of any alteration of the helm of the other at the moment it is made, so that she may act accordingly. In the absence of some such indication as is provided by Art. 19, the ships may be approaching each other dangerously close, whilst they are endeavouring to ascertain how each others' helms are acting. The size and length of modern steamships, and then- consequent slowness in answering their helms, makes this a matter of increasing difficulty. Art. 20. Ship over- taking another ship. Article 20 {(). NotwitJistandiny ani/tlthig contained in any preceding Article, every ship, u-Jicthcr a miling-ship or a ■^tea)n-s/rip, overtaking any other, shall keep out of the way of the over- taken ship. This Article is identical with Art. 20 of the Eegulations of 1880. It corresponds with Art. 17 of the Regulations r) Corresponding to Art 24 of the Washington Regulations. OVERTAKING SHIP. 457 of 18G'3, but its operation is larger. The opening words, Art. 20. "Notwitlistanding, &c.," are intended to meet a difficulty, wliicli existed under the Regulations of 1863, as to the duty of a sailing ship overtaking a steamship, and as to tlie duty of a sailing ship or a steamship overtaking another sailing or steamship from abaft the beam of the latter, and crossing her com-se. In these cases there was an apparent conflict between Art. 15 and Art. 17 (./'), and between Art. 12 and Art. 17 {(j), of the Eegulations of 18g;j. Art. 20 is express as to the duty of a sailing ship over- taking any other ship to keep out of the way. It is therefore the duty of a sailing ship overtaking a steamship to keep out of the way of the steamship. The Regulations do not prescribe any particular course for the ship to take whose duty it is to keep out of the way. She may go ahead or astern of the other, or on either side of her, as she thinks best (//). The duty of tlie overtaken ship is considered below (/). Under the Regidations of 1880 a ship may be an " over- Art. 20 over- taking " ship within .\rt. 20, when, if her speed were not "^j^^'ie^ greater than that of the other vessel, she would be a "cross- ing" ship within the meaning of Art. 16, or approaching the other so as to involve risk of collision within the meaning of Ai't. 14. The " overtaking " ride (Art. 17) of the Regulations of 1863 seems to have left a doubt in some cases as to the relative duties of two ships, one of which was at once crossing and overtaking the other; and the existing Art. 20 was framed in its present terms in order to remove such doubt. Therefore the overtaking, and not the crossing, nde is to prevail when there is any doubt (/.) . (/) See The ThUotaxe, 2 Asp. conia, 2 P. D. 8. Mar. Law Cas. 512; The Wheat- [h) See Art. 14, p. 409, above. sheaf and The Intrepide, 2 Mar. (<) Art. 22, p. 471, below. Law Cas. 0. S. 292. (X) Sec per Butt, J., iu The Sea- {(/) See The Teckforton Castle, 1 iou, 9 P. D. 1 : suyrn, p. 426. P. D. 222 ; 3 P. D. 11 ; The Fran- 458 THE REGULATIONS. Art. 20. The observations of Sir 1\. Phillimore in The Breadalbnne (/), to the effect that where the ships are crossing Art. 14 is to prevail, appear not to be well-founded. What is an There is nothing: in the Regulations to indicate how one "overtaking'" ship? ° ship must bear from another in order to be an "over- taking " ship. A ship dead astern of another, or on her quarter, is no doubt an " overtaking " ship, if coming up with the other ahead. Whether a ship a point or two on the beam of another is "overtaking" the latter, if going at a greater speed, is not clear. Under the Regulations of 1863, a rule was suggested by Brett, L.J., in The Franconia {)»), to the effect that a vessel approaching another from a direction in which, if it w^ere night, the side lights of the ship ahead would not be visible to her, should be considered as an " overtaking " ship ; and that a vessel approaching another from any other direction except dii-ectly ahead should be " crossing." This, though perhaps not exhaustive, is a sound working rule {a), and has been approved in the House of Lords (o). Fry, L.J., has defined an overtaking ship in wider terms : "A ship .... is being overtaken when she is a ship towards which there is another ship going at a greater speed than the first, in such a direction as to approach the first ship "(/?). These definitions were arrived at in a case under Art. 11 (the stern light rule) with reference to a ship which is "being overtaken" within the meaning of that Article. It is submitted that "being overtaken" in Ai"t. 11, and " overtaking " in Art. 20, are correlative terms, and that the conditions under which the two Articles are applicable are the same {p). [l] 7 P. D. 18G. Casde, 3 P. D. 11) as to the cor- (;«) The Fraiicokia, 2 1^.1). S, 12. rectness of thin definition were (w) See per Lord Herschell in considered by Lords Esher and The Main, 11 P. I). 132, 139. In Herschell in The Main (supra) to he the Washington Regulations this unfounded. definition is adopted in terms. ( p) See further upon this point (o) The doubts expressed in the Art. 11, supra, where The Main is Court of Aj^pcal (see The Trckforim stated at length. OVERTAKING SHIP. A ship coming up with another on a course differing Art. 20. from that of the latter by half a point, was held to be "overtaking" her (/), this was interpreted to mean that a ship was to keep on the starboard side, " provided it may be done with convenience and safety" to the other vessel. By subsequent Acts (14 & 15 Vict. c. 79, s. 27, and 17 & 18 Vict. c. 104, s. 297) the rule was re-enacted with the omission of tlie words as to having regard to the tide. In several cases (o) decided under these Acts, it was held that no practice of the river as to ships keeping in or out of tlie strength of the tide, and no considerations of con- venience, would justify a deviation from the express enact- ment as to keeping on the starboard side. By 25 & 26 Vict. c. 63, the starboard side rule was repealed, and from 1862 to the 1st of September, 1880, vessels were free to navigate on either side of rivers, except in certain waters where a special rule was in force imder local Acts. Such special rules are now in force in the Mersey, the Clyde, the Tyne, the Tees, and in Cork or Queenstown harbour (/;) ; also in the Danube ((/). Vessels entering Sorel harbour are requii'ed to keep on the port side (r). The re-enactment of the starboard side rule and its Consequence insertion in the Eegulations are of the utmost consequence on the wron^ to seamen. Any person in charge of a ship who navigates ^''^*^ °* ^ ^ ^ o i. o ^ narrow her on the wrong side of a narrow channel, besides being channel, guilty of a misdemeanor, Avill almost inevitably subject himself and his owners to liability for any collision occur- (h) 7 Not. of Cas. 137. rule of former Acts. (o) 17ieD/i/,rof Sussej-. iW.'Roh. (p) See Ajipendixfortheserules; 274; T/ifi Hi/lp/i, 2 Sp. li. k A. 7o; for an ajiplication of the Tees rule, nr r,i>ithcr, 1 Sp. E. & A. 31 ; The sec The Manj Lohdcn, 6 Asp. M. C. Malvinn, 1 Moo. P. C. C. N. S. 262. 357 ; The Mceaiidcr and The Florence {q) See Tlie Yourri and The Nightiixjalc, ibid. 63 ; The Seine, Speannnn. 10 App. Cas. 276 ; Swab. Ad. 411 : The Hn»d of Pro- Daiiuho Rules, r. 32. vidence, ibid. 101 ; The I'liih/. ibid. (r) 43 Vict. c. 29 (Canada), 101 ; The Ximrod, 15 Jiir. I'ioi, arc Art. 28. decisions under the starboard side 464 THE IIKGULATIONS. Art. 21. ring when he is on his wrong side, unless it is proved that his being on the wrong side was unavoidable (s). What is a There is considerable difficulty in defining a " narrow channel'? channel" within the meaning of Art. 21. The entrance to the Straits of Messina was held by the Privy Council to be a narrow channel within Ai't. 21 (/) ; and the rule has also been applied to the entrance of Falmouth har- bour {((), and to the Cardiff drain at its junction with the entrance channel to the Roath basin (.^■) . On the other hand, an outward part of the sea channels at the entrance of the Mersey was, under a former Act, held not to be a narrow channel (.//). Under the earlier Act there was considerable discussion as to the meaning of " mid- channel" (~). In the present Article " fau^way or mid- channel" would probably be held to mean the deep water channel navigable for heavy ships. The words " when it is safe and practicable" appear to qualify the general operation of the rule ; but it is doubtful whether they have any fm-ther effect than the general saving clause of Art. 2o {a). They probably would be held to apply to the case of a steamship on her right side of the channel falling in with a sailing ship on her wrong side, so as to require the steamship to keep out of the way of the sailing ship in compliance with Art. 17, notwithstanding the fault of the latter in being on her wrong side (.r). The same observation applies in the case of any overtaking ship or any other ship whose duty it is under the Regulations to keep out of the way. The application of Ai't. 21 does not, it seems, prevent (s) 36 & 37 Vict. c. 85, s. 17. {a) As to the meaning of these (t) The Eliondda, 8 App. Cas. wordsinformer Acts, see jTAc C^wiify, 549. Swab. Ad. 101 ; The Hand of Fro- [u) The Clydach, 6 Asp. M. C. videncc, ibid. 107; The Nitnrod, 15 336. Jur. 1201; The Panther, 1 Sp.E. & {x) The Leverington, 1 1 P. D. 1 1 7. A. 31. {il) TheMceandcr, 1 Moo. P. C. C. {b) See The Electric and The Ella N. S. 63. Mary, Board of Trade Enquiry, (z) Smith V. Voss, 2 H. & N. 97. Mitch. Mar. Reg-. 1879, p. 143G. STAUIJOAKl) SIDK lUri.K. 165 the application at the same time of the other steering and Art. 21. sailing rules. Thus, where a ship, A., being in Cardiff drain, was required by Art. 21 to keep on the starboard side, and the other ship, B., was in the entrance channel to the lioath basin, it was held that they were crossing ships, and that A., having B. on her starboard hand, was required by Ai-t. 16 to keep out of the way (c). Tlie Pc)'i)n, in a narrow channel (near Cronstadt), was held not to be bound by Aii. 2 1 because at the time of the collision she was making for a pilot station on the port side of the channel to discharge lier pilot [d). (iuestions may arise as to the application of the star- Does Art. 21 board side rule of Art. 21 in waters where (as, for example, Locu/rule.r^ the river Thames) local rules of navigation are in force, ^^® "^ ^"'"'^^ =* but where there is no rule as to the side of the channel upon which ships are to navigate. It is submitted that in such cases Art. 21 has uo application, and tliat absence in the local rules of a rule requiring vessels to navigate on one side of the channel or the other leads to the inference that vessels are free to navigate in any part of the channel. It was recently so held witli reference to the navigation of the Thames at Milwall (r). The question, however, is not free from doubt ; it may be contended that the local rides are supplementary to the general Eegulations (,/). The Kegulations, though headed as " Eegulations for Preventing Collisions at Sea," would probably be held, at least as regards Art. 21, to apply in rivers and British waters where no local rules are in force. Even in foreign waters there is reason to think that the starboard side rule might be applied upon the principle enunciated in The Fi/oioord {(j). The application of Art. 21 is in some measure illustrated (f) ThcL,'vrn>if/to>i,\lV.'D.m. (c) The Ecossaise, Ad. Div. Dec. {({} The Ferim, Ad. Div. 10th 18S.5. Nov. 1886. (/) See infra, Art. 24. \g) Swab. 374. M. H 11 466 THE REGULATIONS. Art. 21. Rules in American rivers. Difficulty of applying- the "crossing" and " meet- ing ' ' rules in a winding river. hy the cases relating to the analogous rule applicable to veliicles on a highway on land. In these cases it has been held that, whilst a driver on his wrong side is required to exercise more than ordinary care to avoid other vehicles (g) , the rule of the road is not to be treated as the sole criterion of negligence (//). But the important distinction created by 36 & 37 Yict. c. 85, s. 17, in case of collision between ships, must not be overlooked in considering the applica- tion of the cases relating to collisions on land. At the trial of a collision case before a jury the question has arisen whether it is for the judge or for the jury to decide what is a narrow channel. The point was not decided (/). In America some of the States have passed laws as to the side on which vessels are to navigate ; and in some rivers there is a customary track. Sometimes an ascending ship must keep on one side or the other of mid-channel, leaving the middle of the river to descending ships. In the East River, at New York, it is the law that vessels going up or down shall keep in mid-channel. "Where a ship is required by law or usage to keep on one side or the other, if she is on her wrong side she is held to be in fault for a collision with another ship that is on her right side and has done all that the law requires to keep clear {J). There is great difficulty in determining the application of some of the articles of the general Regulations to ships navigating a narrow and tortuous river. It aj)pears to have been held by the Privy Council (/■), in the case of two ships bound up and down a river, and first sighting {ff) Plucktvell V. Wilson, 5 Car. & P. 375. (A) Wayde v. Lady Carr, 2 Dow. & Ry. 255 ; Wurdswurth v. Willan, 4 Esp. 273. [i) Australian Steam Navigation Co. V. Smith, The Birksgate, and The Barrabool, 14 App. Cas. 318. (/) 1 Parsons on Shipping (ed. 1869) 582; The Ivanhoe and The Martha M. Heath, 7 Bened. 213 ; The Vanderbilt, 6 Wall. 225 ; The Bay State, 3 Blatchf. 48. {k) See The Velocity, and cases cited below. CUSTOMARY TRACK IN RIVERS. 467 each other on opposite sides of a point of land round wliich Art. 21. the river winds, that the ships are not " crossing " ships within the meaning of the Eegulations ; and that, if they are then on different sides of the river, the duty of each is to pursue her course as if the other were not in sight. If, when they first sight each other on opposite sides of a point of land, they are both in mid-channel, or equi- distant from the same shore, it is not clear how, and on which side, the law requires them to pass each other (/). It may happen, in such a case, that owing to the way of the ships througli the water and the set of the tide it is possible for them to clear each other with certainty in one way, and in one way only. In most tidal rivers there is a customary track for vessels Customary going with the tide, and another for those going against rivers, it (;»). Its course depends mainly on the practice for ships with a fair tide to keep in its strength, and for those with a foul tide to *' cheat " it, or keep out of its strength. In a winding river, where there is an off-set of the tide from the points into the opposite bights, ships usually cross from one side of the river to the other at or about particular places in the different reaches. It has been held that such a practice, although not strictly a custom binding upon all ships, is one which a ship is justified in following and in assuming that other ships will follow (>?). And it appears that this is so although her position with regard to another vessel is such that if she were in the open sea the Regula- tions would apply and requii-e her to act differently. In determining, therefore, what are the proper steps for a ship to take in order to avoid another approaching her in a (I) As to the duty of two ships usage for ships bound down the rounding a bend in a river iu river to keep either to the nt)rtli or opposite directions, one outside the to the south side of the river fi"om other, see The Bi/tcell Castle, 4 P. D. Milwall Pier round the Isle of 219, per Brett, L. J. Dogs. {/«) Iu T/ie Cambria, Ad. Div. {h} The Eak ixndi The Niord,!,.^.. May, 1887, Hannen, P., was ad- 3 P. C. 436, 442. vised by his assessors that there is no H II 2 468 THE REGULATIONS. Art. 21. winding river, tlie sinuosities of the river, and also the usual course of vessels in the river, must be taken into consideration. In cases where, if each ship continues her course in the usual track, they will pass clear, although if either deviates from it there would be risk of collision, it appears that the Eegulations do not apply, and that it is the duty of each vessel to continue her course in the usual track and as if the other were not in sight (o) . It has recently been held in the Admiralty Division that it is a prudent rule in a winding tidal river, in the absence of special regulations, for a steamship about to [o] The Velocity, L. E,. 3 P. C. 44 ; The Cologne and The Ranger, L. R. 4 P. C. 519 ; The Esk and The N'wrd, L. R. 3 P. C. 436 ; The Kjoberhavn, 2 Asp. Mar. Law Cas. 213, 217 ; The Golden Pledge, Holt, 133 ; but see the observations of James, L. J., on these cases in Tlie Oceano, 3 P. D. 60 ; see also The Milwaukee, Brown, Ad. 313. The principle adopted in the above cases by the Privy Council, that in de- tei-mining the application of the Eegulations in a winding river the customary track of ships is to be considered, does not appear to have been followed by Dr. Lushington under former Acts and Rules. In The Friends, 1 W. Rob. 478, and The Gazelle, ibid. 471, he expressed a strong opinion that where, except for the practice of the river as to keeping in or out of the strength of the tide, the Rule of the Road (the Trinity Rule of 1840) woidd apply, tlie case was not taken out of the rule by the practice. In The Friends, a steamship, going up the Thames against the ebb, sought to justify her not porting in compliance with the Trinity Rule upon the ground that the practice of the river re- quired the other ship, which was going down with the ebb, to keep in the strength of the tide, and her- self {The Friends) to keep out of it. Dr. Lushington refused to recognize the practice of the river in such a case. In addressing the Trinity Masters, he said: — "AH I can say is this, if you are about to make an exception from your own rides — an exception not to be extracted from anything to be found in the Rules themselves, but to be founded upon reasons which have been alleged for the sake of safe navigation of the river Thames, and the great inte- rests which are daily and hourly thereat stake — let your exception be clear and intelligible, in order that it may at the first glance be known to the mercantile and maritime world. If, instead of a clear and direct rule, there is to be any excep- tion, let it be as distinct and definite as the rule itself. Unless it be so it is obvious that persons in all cases will endeavour to form exceptions for themselves, and instead of se- curity we shall have danger." And in The Duke of Sussex, 1 W. Rob. 274, it was held that the custom of the river as to vessels availing them- selves of the strength of the tide was superseded by the Trinity Rule. The observations of Dr. Lushing- ton as to the necessity of holding Regulations for preventing colli- sions to be almost of universal ap- plication, have lost none of their force, but there is some difficulty in reconciling them with the recent decisions of the Privy Council in the cases stated in the text. NAVIGATION OF MINDINf; RIVF.R. 469 round a point against the tide to wait until a vessel coming Art. 21. in the opposite direction has passed clear, and a steamship was held in fault for disregarding this precaution in the Scheldt {p). It appears, however, from a decision of the Coiu't of Appeal, that the cases ahove cited as to the application of the general Eegulations in a winding river do not ne- cessarily apply in a river where there are in force special rules made under a local Act for the express purpose of regulating its navigation. Although the Thames liules (of 1872) were identical, as regards crossing ships, with the general Regulations, it seems to have been doubted whether the decision of the Privy Council in Tlie Velocity, and other cases following it, that two ships rounding a point are not within the "crossing" rule, would be followed in a similar case arising under the Thames Rules {q) . The particular point decided in The Velociti/ does not arise upon the existing Thames Rules (of 1880), which contain no rule corresponding to the " crossing " rule there discussed. But the principle involved in that and the other decisions above referred to is of wide application, and has an im- portant bearing upon the existing Thames Rules, as well as other rules for the navigation of winding rivers. That principle is, that the questions. Whether there is risk of collision ? and, What rule is applicable where there is such risk ? depend rather upon the relative positions of the two ships in the river as regards mid-channel, and upon the customary track of ships in the river, than upon the head- ing of the two ships at a particular moment. The following cases illustrate the view taken by the American Supreme Court of the United States as to the application tie applica- of the Regulations of 1868 in a winding river. *^"^ "^Z *^° ^ ,^ , . . Regulations A sailing ship descending a river on a southerly course in a -winding sighted a steamship ascending it. In accordance with the ^'^^^' {p) The Talahot, 89 L. T. 239. (?) The Occam, 3 P. D. GO. 470 THE REGULATIONS. Art. 21. practice of the river, the sailing ship was on the west, and the steamship on the east, side of the channeL At a point between the two vessels the river took a bend in a south- easterly direction. On reaching this point the sailing ship's helm was put to starboard in order to round the bend. Instead of porting, so as to resume her course in the usual track along the west bank at a point where the channel turned again to the west and ran in its original southerly direction, the sailing ship continued the course she was on after her helm had been put to starboard. Crossing the channel to the east shore she ran into the steamship, which had continued her original course along that shore. It was held that the sailing ship was in fault for deviating from the customary track along the west shore ; that her duty under the rule (identical with Art. 18 of the Eegulations of 1863) requiring her to keep her course, was to keep her course along the west shore, deviating from a straight course only so far as the winding of the river required (r). The judgment of the Supreme Court in this case is to the effect that when a point of land or other obstruction in the navigation interferes with the literal application of the Eegulations, they are, never- theless, to be complied with so far as possible ; that a vessel required by the law to keep her course, if she is compelled by an obstruction or bend in the river to deviate from it, must resume her original course as soon as possible. And the Court expressly held, that where two vessels will pass clear if each adheres to the customary track, the Eegula- tions have no application ; and that a vessel deviating from the customary track in supj^osed obedience to the Eegulations is in fault. In The Free State (s), a sailing ship was crossing a river diagonally, for a temporary purpose, when she sighted a steamship approaching with risk of collision ; the Supreme (r) The John L. Hasbronclc,Z Otto, 405. (.s) 1 Otto, 200. RULE AS TO KEEPING HER C0T:RSE, 471 Court lield that the duty of tho sailing ship was to keep on Art. 21. her course across tho river. Tho sailing ship ascending a ~ river on a northerly course and being overtaken by a steamship, starboarded until her head was N.W. by N., in order to give the steamship more room to pass on her star- board hand. While crossing the river on the N.W. by N. course she sighted another steamship descending the river and preparing to pass the ascending steamship port side to port side. After being passed by the ascending steamship the sailing vessel ported and attempted to follow in her wake, so as to pass the descending steamship port side to port side. In doing so she came into collision with the latter, and it was held by the Supreme Court that she was in fault for not keeping her N.W. by N. course. When two steamships proceeding in the same direction were rounding a point or bend in a river nearly abreast, it was held that it was the duty of each to keep in her own water, and not attempt to cross the course of the other. The outside boat was held in fault for a collision that occurred while attempting to get in to the shore across the bows of the other {f) . In The Milwaukee {u), it was held that the question whether two ships were meeting " end on " in a river is to be determined by their general course in the river, and not by their compass course at a particular moment while they are pursuing the windings of the channel. Article 22 (x). Where by the above rules one of two shij)s is to keep out of Art. 22. the wai/, the other shall keep her course. Ship not This Article is identical with Art. 22 of the Regulations kecp^ut of of 1880. It answers to Art. 18 of the Regulations of 1863. ^^o way must kooi^ her It supplements, and must be read with, Arts. 14, 16, 17, course. (i) The Ocraiiun, 12 Blatclif. 430. (.r) Corrcspondiug- to Art. 21 of {ii} Brown, Adm. 313. the Washinijtou llegulations. 472 THE REGULATIONS. Art. 22. and 20. The concluding words of Ai't. 18 (of 1863) were superfluous, and are omitted in the present Art. 22. The scoj)e and application of the two Articles appear to be identical. Art. 22 must Since a vessel, A., required by the Regulations to keep observed."*" out of the Way of another, B., may go ahead, or astern, or on either side of B., it is B.'s duty to do nothing that may embarrass A. or interfere with her right to keep clear of B. in any way she thinks fit. The rule, therefore, requiring B. to keep her course must be observed strictly. So long as B. can do so without immediate danger, and there is a possibility of A. clearing her, she must stand on. In a recent case Sir James Hannen refused to find a sailing ship to blame for taking no step until the last moment to avoid collision with a steamer which she saw to be taking no measures to keep out of the way (//) . With reference to the same rule under a previous Act, Dr. Lushington said : — " I wholly deny that danger would be averted, or that infinitely greater danger would not occur, if a vessel close-hauled on the larboard tack, on descrying a steamer, were to take upon herself to deviate from her course for the piu'pose of getting out of the way ; because I am of opinion that by so doing it would lead to the chance of infinitely more collisions than at present" (s). The Su- preme Court of the United States is equally strict in its interpretation of the rule, and for the same reasons. " The negligence of one (ship) is liable to baffle the vigilance of the other ; and if one of the vessels, under such circum- stances, follows the rule, and the other omits to do so, or violates it, a collision is almost certain to follow " (a). It has been held by the Privy Council that " if a ship bound to keep her course undertakes to justify her depar- (y) The Hlghgate, 62 L. T. N. S. .582 ; The Test, 5 Not. of Cas. 276. 841 ; supra, p. 433. («) Neiv York and Liverpool U. S. (z) The Vivid, 7 Not. of Cas. 127; Mail Co. v. llumball, 21 How. 372, The Jmmaganda Sara Clasina, ibid. 384. KEEP HER COUKSE. 473 ture from tliut rule, she takes upon lierself the obligation Art. 22. of showing both that her departure was, at the time it took place, necessary in order to avoid immediate danger, and also that the course adopted by her was reasonably calcu- lated to avoid that danger "(/>). There are decisions of the Supreme Court of the United States to the same effect {(■) . This rule is perliaps the most difficult of all the Eegu- lations for seamen to adhere to. Tlie stringency Avith which it is applied by the Courts makes it necessary for an officer to take his ship into close proximity to another, where it may appear that risk of collision would be at once determined by directing her course away from the other ship. In the case of a sailing ship, A., close-hauled on the port tack, approaching another, B., having the wind free on the starboard tack within the " crossing " rule (Art. 14), unless there are exceptional circumstances, and it is certain that B. will not keep out of tlie way, A. has no choice but to stand on (d). It has been held that in a winding river the direction to Meanin•). A vessel hove-to with her helm lashed to leeward, forg- ine: ahead as she comes to and falls off, does not fulfil the requirements of Art. 22 (/). A vessel close-haided does not by lufRng a little, and so and a ship that she does not lose her headway, break the rule requir- ^ "' ^ ing her to keep her com-se {/n) ; nor, it is submitted, does she infringe Art. 22, by breaking off if the wind heads hcr(>/). But a vessel which luffed to the extent of two and a-half points, was held to liave infringed the regulation (o) . And it has been held that a vessel does not, by altering her course so as to give an overtaking ship more room to pass, infringe the rule (p). If a close-hauled sliip departs from the ride requiring her to keep her course, as a general rule she should luff rather than bear up, as she thereby lessens her way, and, if a collision takes place, its effect is likely to be less disastrous (q). The rule that a ship is to keep her course does not mean A ship must that she is to do so obstinately when she sees that, under obstinately.^ the particular circumstances of the case, she can, by de- parting from it, avoid a collision (r). The following cases illustrate the application of Art. 22 : Casps illus- A barque in Margate Koads in a strong wdnd was wear- aniiilation of ing preparatory to coming to an anchor. A steamship was ^^- --• held solely in fault for a collision with her, although the (/.) The General Lee, 3 Mar. Law oU. Cas. 0. S. 204. (o) The Earl JFem>/ss, 6 Asp. 364; (0 The Transit, 3 Boned. 192 ; on app. 61 L. T. N. S. 289. and see fui'ther, p. 415, above, as {p) 'The Franconia, 2 P. D. 11 ; to the duty of a ship hove-to. but see The Corsica, 9 Wall. 630 ; (>«) The Marmion, 1 Asp. Mar. i»fra, p. 479. Law Cas. 412 ; The Aimo nwA The {q) The Agra and The Elizabeth Amelia, 2 Asp. Mar. Law Cas. 96 ; Jenkins, L. R. 1 P. C. oOl ; The The Great Eastern, 3 Moo. P. C. C. Great Eastern, itbi supra. N. S. 31 ; The Singapore, L. R. 1 (»•) The Lake St. Clair v. The P. C. 378. Underwriter, 3 Asp. Mar. Law Cas. («) She would be in fault if she 361 ; The Rosalie, b P. D. 245; The broke off more than necessary ; as Sitnnyside, 1 Otto, 208. See, how- in The Elizabeth Jones, 5 Davis, ever, infra, Art. 23, 476 THE REGULATIONS. Art. 22. steamsliip alleged tliat slie was baffled hy tlie rapid change in the course and lights of the barque (-s). A sailing ship, with the wind aft, meeting a steamship nearly end on, was held in fault for porting {t). But a slight alteration in the helm of a sailing ship, when an approaching steamship was two miles distant, was held not to be an infringement of the rule requiring her to keep her course (m). And a steamship, with another a quarter of a mile astern on her port quarter and overtaking her, was held not to be in fault for jiorting half a point (x). A sailing ship must not go about close ahead of a steam- ship, so as to embarrass the latter and make it difficult for her to keep out of her way (//) . But a steamship, attempt- ing to pass a sailing ship turning to windward in a narrow channel, must be prepared for the sailing ship going about, and the latter is under no obligation to give notice of her intention to go about (;:) . It seems that where risk of collision exists, a sailing ship is not entitled to go about until compelled to. Then Art. 23 applies, and excuses her for not keej)ing her course. A three-masted schooner was standing in towards the Groodwin Sands on the port tack, heading W. by S. Approaching her was a steamship on a S.S.W. course, having the schooner about one point on her starboard bow, and under such circumstances that there was risk of coUi- The schooner went about, and there was a collision. sion. The question was, whether the schooner had infringed Art. 22. The opinion of the Trinity Masters was asked by Butt, J., in these terms : — Would there have been any {.i) The 3lonsoon and The Ncplune, 2 Mar. Law Cas. O. S. 289 : and see The Falkland and 'Tlie Navigator, Br. & Lush. 204. [t) The Jio)^f/ai)ivillr and The James C. Stevenson, L. R. o P. C. ;31G. (m) The Norma, 3 Asp. Mar. Law Cas. 272 ; cf . The Batishee, 6 Asp. Mar. Law Cas. 221. [x) 'The Franconia, 2 P. D. 8. (//) The Newhurgh v. The Oscar, Holt, 231 ; The Saucy Lass v. The Bolder aa, Holt, 205. {z) The Palatine, 1 Asp. Mar. Law Cas. 468 ; it is not quite clear in tliis case whether it was neces- sary for the sailing ship to go about when she did. KEEP HEK COURSE. 477 risk to tho schooner, having regard to the tide (running to ^^^- 22- the westward) and all the surrounding circumstances, if she had stood further in towards the sands ? The answer to this question hoing in the afhrniativc;, it was held that Ai't. 23 applied, and that the schooner had not infringed the Regulations in going about {a). In a Canadian case a sailing ship in tow with sail set was struck on the quarter by another vessel in tow of the same tug, and was forced against an overtaking steam- ship (b). She was held in fault for not keeping her com-se ; nccl qu. as to the reason of the decision. A smack hove-to on the port tack, with her helm lashed, was heading so as to cross the course of a tkree-masted schooner close-hauled on the starboard tack. Neither vessel did anything until the collision was inevitable. The schooner, as well as the smack, was held in fault, because she did not bear up in time (c). In America there is a stringent rule, which has been American fi-equently insisted upon by the Coui-ts, requiring a sailing ship working to windward in company with other ships, w^hose duty it is to keep out of her way, to "beat out her tack. " If she goes about in a narrow channel before the shoaling of the water or other dangers of navigation require it, and comes into collision with another ship which would have cleared her if she had stood on, she is held to be in fault for the collision {d) . In a case of colKsion be- tween a sailing ship turning to windward and a steamship, the Circuit Court said : " What the law requii-es for a sail- ing vessel in a narrow channel is, to beat out her tack, and, having beat it out, to come about with aU proper despatch upon the other, leaving to the steam vessel the responsi- bility of being in a position to enable her to do so without danger" {c). (a) The Orwell, Ad. Div. 17th (c) The Rosalie, b^.J). 2^h. Dec. 1887. [d) The Empire State, 1 Bened. (b) The Farewell, 8 Quebec L. R. 57. 87. (f) The Empire State, uli supra. cases. 478 THE REGULATIONS. Art. 22. In a case wliere it was proved that there was, at the American time of the collision, a flat calm, it was held by the Supreme tradn^^ "' Court that the sailing ship, whose duty it was to keep her Ai-t. 22. course, could not be in fault (/). The rule requiring a vessel to keep her course is strictly enforced by the Courts in the United States. A sailing ship approaching a steamshi2D admitted that so soon as there was risk of collision she kept away two or three points. She was held to be in fault. The Court said {g) : " A vessel whose duty it is to keep her course has no right to change it as soon as she apprehends a collision. In this case the duty of the tug to keep out of the way of the lighter arose only when the two vessels were proceeding in such dii-ections as to involve risk of collision ; and it was under the same circumstances that the duty arose on the part of the lighter to keep her course. Therefore, under the statute requiring the lighter to keep her course, her apprehension of a collision could not justify her in changing her course. Moreover, it is the actual risk or danger of collision that determines the duty of both vessels, and not the apprehension merely (h) . The rule was made and is administered for the very purpose of prevent- ing the vessel charged with the duty of avoiding the other from being embarrassed by a change of course on the part of the other into danger, on the apprehension that such duty of avoidance will not be fulfilled " {i). A schooner, seeing the mast-head light of a steamship, and mistaking it for a light ashore, hove-to to get a cast of the lead, thereby presenting her red light to the steamship. The steamship ported. The schooner, on discovering her mistake, got under way, and crossed the course of the (/) The Commerce, 16 Wall. 33. course. Iff) The General U. S. Grant, 6 (A) But see as to this, supra, Bened. 465, 467 ; and see The p. 348. Adriatic, 17 Otto, 512, as to the (t) See also The Stephen Morgan, duty of a sailing ship to keep her 4 Otto, 599. KEEP HER COUllSE. 479 stearasliip, sliowing her green light. It was held that the ^ ^^- 22- schooner was solely in fault for not keeping her course {k) . Where a ferry boat crossing a river was under a port helm at the moment when she sighted another steamsliip coming up the river, it was held that her duty, under the rule requiring her to keep her coui'se, was to continue in her usual track (/). The danger of departing from Art. 22 is illustrated hy an American case, where a vessel, A., starboarded in order to assist another, B., whose duty it was to keep out of her way, in an attempt to cross her bows. Finding that she could not cross A.'s bows, B., at the last moment, stopped. In consequence of B.'s stopping and A.'s starboarding, a collision occurred. A. was held to be solely in fault (m). A steamship, just before reaching a point in New York liarbour where the channel is narrow and the navigation difficult, sighted a schooner's red light. There wore thi'eo channels open for the schooner, and only one for the steam- ship. The schooner selected the steamship channel, and a collision took place. The schooner was held in fault, bo- cause, although she kept her course, in the sense tliat she had from the first intended to make use of the steamship channel, she embarrassed the steamship by taking that course when she might have avoided any risk by taking one of the other channels {n) . It lias been decided by the Supreme Court that a sailing ship is not free from blame if, seeing the lights of a steamship ahead and not keeping out of the way, she pertinaciously keeps on lier com^se and runs down the steamship (o) . (A-) The Viryo, 7 Bened. 495. (h) The City of Saitford, 7 Bened. (I) The John Taylor, 6 Bcned. 350. 227. ip) The Sunnysidc, 1 Otto, 208. (w) The Corsica, 9 Wall. G30. 480 THE REGULATIONS. Article 23 (oo). Art. 23. In ohei/ing and condruing these rules due regard shall be Proviso ^'^^'^ ^0 ^^^^ dangers of navigation, and to any special circum- saving special stances whick mat! render a departure from the above rules cases. necessary in order to avoid i)nmedi(de danger. Art. 23 corresponds, and, with the exception of super- fluous words, is identical, with Art. 19 of the Regulations of 1863, and with Art. 23 of the Regulations of 1880. Terms of The concluding words of this article should be compared Art. 23 com- ^^..^|^ ^^^^^ ^f 3g ^ 3^ y-^^^ ^ ^5 g_ ij ^|^-g|^ ^.g^-ggg ^ pared with _ _ ' ^ those of 36 & sumption of fault in case of infringement of the Regu- s.n. ' ' ' lations — "unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the Regulations necessary " (7;) . It is clear, from Art. 23, that the steering and sailing rules — Arts. 14, 15, 16, 17, 18, 20, and 22 — do not apply where they cannot be obeyed without " immediate danger. " The " circum- stances" mentioned in 36 & 37 Yict. c. 85, s. 17, would therefore seem to be such as render a departure from the Regulations necessary to avoid immediate danger. It may be objected that in this view the words of s. 17, above quoted, "unless it is shown, &c.," have no oj)eration and are superfluous ; but it is difficult to give them any other meaning. The construction, here suggested, of Art. 23 and sect. 17, seems to have been that adopted by the House' of Lords in the cases of TheKliedive [q] and TJie Benares {r). In the latter case the meaning and operation of Art. 23 was more con- sidered, and a larger and more decided operation was given to it by the Court of Appeal, than in The Khedive by the House of Lords. In The Benares it was held that where {oo) Corresponding to Art. 27, ( cause from the severe obligation oi complying witli the previous collision. Ai'ticles under circumstances which would render obedience to them dangerous, when, by deviation, they might escape danger {g). But its application is strictly limited to cases where the circumstances are such that " there is immediate danger perfectly clear to the apprehension of those pre- sent " (//). It " does not prescribe any particular measures that should be adopted in departing from the strict terms of any of the previous Regulations that it governs, but it merely states that in construing and obeying these Regu- lations as far as possible you may take into consideration urgent attendant circumstances. ... It is common sense ; for if any rule were laid down by Act of Parliament, or any other authority, that could never be departed from in certain states of circumstances, such a rule would necessarily involve, on many occasions, the destruction of ships which it was intended to preserve " (/). Not only is departure from the rule of the road excused Dut}- to avoid by Art. 2-3, where the ride cannot be obeyed without colli- ^^ ^^°°' ^^ sion, but a literal observance of the Regulations cannot be purpose to set up as a defence where the collision might have been the Rule of avoided by ordinary care ik). " Wlien one person neglects ^^^ '^^^^ if J J \ J ^ r D ^ necessary. his duty, and so puts another into danger, the second is not justified in doing nothing to avert that danger, though ijj) The Eliza and The Orhioco, see The Superior, iibi supra. The Holt, 98. See The Coneordia, L. R. Supreme Court of the United States 1 A. & E. 93, 97. used similar language with regard (h) 2'he A lla» and The Flora, Holt, to the operation of Art. 19 of the 114 ; 2 Mar. Law Cas. 0. S. 38G ; Regulations of 18G3 in The Cayuga, The Moderation, 1 Moo. T. C. C. 14 Wall. liTO ; The Suiuii/side, 1 528. Otto, 208. (i) Ter Dr. Lushhigton in The (Ar) See further on this, supra, p. Allan and The Flora, itln supra ; and 22. 486 THE REGULATIONS. ^^^- 23. it is caused entirely by tlie fault of the first" (0- "You may depart, and you must depart, from a rule if you see with perfect clearness, almost amounting to certainty, that adliering to the rule will bring about a collision, and vio- lating a rule will avoid it ; and, indeed, this is provided for by the 19th Aiiicle" (of the Eegulations of 1863, corresponding to Art. 23 of 1884) {iji). And, again, "you have no right to stand in a difficulty upon a right, though it may be a perfectly good right, obstinately, recklessly, and regardless of the safety of others" {)/). Art. 23, in fact, merely states the general princij^le, which, it is sub- mitted, would prevail in the absence of such an enactment. The principle was thus stated by Best, C. J. : — " Although there may be a rule of the sea, yet a man who has the management of one ship is not to be allowed to follow that rule to the injury of a vessel of another, where he could avoid the injury by pursuing a different coiu-se " (o). A barque close-hauled on the starboard tack was held to be solely in fault for a collision with a barque that had just been in stays, and had not gathered way on the port tack. The Coiu't (in Ireland) said that if a ship insists on her right, under a rule of navigation, of not giving way, and makes no effort to prevent the collision when it is in her power to do so, she will be held not to have performed her duty, and to be in fault for the collision {p). So a shij) on the port tack was (in 1850) held in fault for a colHsion with another having the wind free, which she had seen a mile-and-a-half off and did not attempt to avoid (17) ; and more recently a schooner on the starboard tack was held {!) Fer Brett, L.J., 17ie Jane (o) Handaysidc v. Wilson, 3 Car. Bacon, 27 W. R. 35. & P. 528; sec also Mayhem y. Boyce, (m) Fer Dr. Lushiugton, in The 1 Stark. 423. Boanerqes and The Avqlo- Indian, 2 (j») TheldaacaA. TheWasa, 2 Mar. Mar. Law Cas. O. S. 239. See Law Cas. 0. S. 414. also The Ida and Tlie Warn, infra ; [q) The Commerce, 3 W. Rob. Handaiiside v. Wilson, 3 Car. & P. 287 ; but see the observations of 628 ; The Lady Anne, 15 Jur. 18. Sir J. Colville on this case, 4 App. (w) The Legalus and The Emily, Cas. 672. Holt, 217. WHEN TO BE DEPARTED FROM. 487 m fault for doing nothing before she came into collision Art. 23. ■with a smack hove-to on the port-tack (r). ' The Ladij Ainie, close-hauled on the starboard tack, was meeting another ship, close-hauled on tlie port tack. It was held that T/w Lad// Anite might have avoided the collision by putting her helm down at the last moment and easing off her head sheets, and she was held in fault for not doing so (s) . So a sailing sliip will be held in fault for a collision with a steamship if she makes no attempt to avoid a colHsion, where it is clearl}^ in her power to do so. In such a case a mere adherence to Art. 22 is no justification. In T//C Si( II Ill/side, a sailing ship, with the wind free, saw the mast-head and green lights of a steamship half a point on her port bow, a considerable distance off. The lights were those of a tug, drifting before the wind, at about a mile-and-a-half an hour, and waiting for emplo^mient. The sailing ship kept her com-se, and did not alter her helm until it was too late to avoid the tug. It was held in America by the Supreme Com-t that the sailing ship was in fault, as well as the tug {t). In T/ic Zadok {n), a sailing ship was held in fault for a collision in a fog with a steamship, because, amongst other acts of negligence, after she heard the whistle of the steamship approaching, she had no hands stationed at the braces ready to let them go so as to assist the helm when the steamship came into sight at close quarters. The Tasmania (.!■), a steamship going three and a-half knots, saw the red light of another steamsliip one mile or more distant, and two points upon her port bow. When the latter was about four ships' lengths off, the green came (r) Tlie Rosalie, 5 P. D. 245. tion of her course by the sailing (») 15 Jur. 18. ship. (<) The Siuinysidc, 1 Otto, 208; («) 9 P. D. 114. but see The Boitf/auiviUe v. The (x) 15 App. Cas. 223, reversing James C. Stevcmon, L. R. 5 P. C. 14 P. D. 53. 31C, for a case of pi'cmaturc altera- 488 THE REGULATIONS. necessary m departing from the Regulations. Art. 23. into -view. No alteration in speed or helm was made until the hull of the other ship was seen. The question was whether The Tasmania was in fault under Art. 23, for not having altered her course before the collision. After different decisions in the Courts below, the House of Lords held that she was not in fault (./■) . And in The High gate {//), Sir James Hannen distinguished the then subsisting decision of the Comi of Appeal in The Tasmania, and refused to hold a sailing ship in fault for not taking any step to avoid an approaching steamer until collision was imminent, saying that, " It is only where a clear case of necessity is made out that a captain can excuse himself for not follow- ing the rule." Great caution Great cautiou mu.st be used in applying the principle recognized in some of the above cases, that under some circumstances it is the duty of a ship to disobey the Regulations. It may be applied only where the circum- stances are very exceptional. " The principle of law that you are not to adhere to strict rules of navigation, but avoid an accident if possible, is a doctrine to be very care- fully watched" (s). The Court will not hold a ship in fault for not departing from the Regulations in a case where they wqtq prima faeie applicable, and the other ship failed to comply with them, unless it is clearly proved that those on board the first ship might with reasonable care have seen that the other ship was not going to comply with the Regidations ; and further, that they should have seen this at a time when it was in their power to avoid the collision. A ship, A., close-hauled on the port tack, and another, B., on the starboard tack with the wind free, were crossing within Art. 12 of the Regulations of 1868. A. stood on until immediately before the collision, when she luffed. [x) 15 App. Gas. 223, reversing 14 P. D. 53. (y) 62 L. T. N. S. 841. More fully referred to, supra, p. 433. [z) Fir Dr. Lushington, The Test, 5 Not. of Gas. 276. WHEN TO BE DEPARTED FROM. 489 B. neglected to keep out of the way, as required by the Art. 23. Regulation.';. It was held by the Gibraltar Court that A. was in fault as well as J^., because she pertinaciously kept her course under Art. IS when she ought to have seen that B. was not going to keep out of the way in com- pliance with the law ; and in so deciding, the learned judge relied on T//c Commerce {a). The Pri-\y Council reversed the decision of the Court below, and hold that A. was not in fault. Sir J. W. Colville, in delivering the judgment of the Privy Coimcil, said : " Their lordships remark that, though the principle involved in that case {Tlie Commerce) may be in itself a sound one, it is one which should be applied very cautiously, and only when the circumstances are clearly exceptional. They conceive that to leave to masters of vessels a discretion as to obeying or departing from the sailing rules, is dangerous to the public ; and that, to requii'e them to exercise such discre- tion, except in a very clear case of necessity, is hard upon the masters themselves, inasmuch as the slightest departure from these rules is almost invariably relied on as contri- butory negligence" {h). Art. 23 is not intended to apply to a case where the If the Regu- T-,,.. ., Ti'ji J 1 lations cannot Kegulations cannot be comphed with, nor to a case where be complied non-compliance could not by possibility have caused the '^'ith, or can- , ^ ^ . . iiot, II coin- collision. In such a case non-compliance with the Regu- plied with, lations is immaterial upon the question which ship is in J;^{]jg-^n ^ fault, but that is so by virtue of the general law, and not -^t. Ti does under Art. 23 (c) . But it appears that where the colli- sion, though in fact inevitable, may, in the opinion of a seaman of ordinary skill, bo avoided by departing from the Regulation {(I) which is prima facie appHcable, tlie {a) 3 "W. Rob. 287. {c) See Inman v. Beck, Tlie City [b) The William Frederick and of Antwerp and The Friederich, L. The Bi/foged Christensen, 41 L. T. R. 2 P. C. 25, 34 ; and ^iqjra, p. N. S. 535 ; 4 App. Cas. 669; and 431. see The Legatiis and The Emily, [d) The Benares, 9 P. D. 16. Holt, 217. 490 THE REGULATIONS. "Dangers of nu\-igation." A ship is not bound to take a step dangerous to herself. Art. 23. slilp will not be held, in fault for a departure from the Regulations merely because the collision has occurred {e) . By the terms of Art. 23, in applying the Regulations, regard is to be had to the " dangers of navigation." This phrase seems to refer j^rimarily to dangers other than collision ; but it is not clear that risk of collision is not included (/). Nothing in the Regulations requires a ship to take a measure which is dangerous to her safety (g). A vessel is not bound to obey the rule requiring her to port, if, by j)orting, she will incur serious danger by going ashore {h), or striking another ship (/). In such a case Art. 23 may aj^ply to both vessels, or to one of them. It excuses non- compliance with the Article requiring her to j)ort on the part of the one vessel, because of the rock or shoal ; and if, in order to avoid a collision, it is necessary for the other vessel to depart from the Regulations, it is her duty to do so, and Art. 23 excuses her departure. So, where a ship required by the Regulations to keep out of the way is unable to do so, it is the duty of the other, not to keej) her course, but herself to keep out of the way. Two vessels, close-hauled on opposite tacks, were crossing, and the ship on the port tack could not bear up for fear of collision, and could not go about be- cause of a shoal. It was held (in America) that the ship on the starboard tack was in fault for not keeping out of the way (/■). Disabled ship. If a vessel is partially disabled, or in a condition which " Special cir cumstances.' (e) See The Khedive, 5 App. Cas. 870, 902. (/) See The Benares, 9 P. D. 16. In The Maggie J. Smith, an Ame- rican case, 16 Davis U. S. 349, at p. 354, Field, J., says Art. 24 (the corresponding Article) only applies where there is some special cause rendering a departure neces- sary to avoid immediate danger, such as the nearness of shallow water or a concealed rock, the ap- proach of a third vessel, or some- thing of that kind. ((/) The &(. (-'gran v. The Henry, Holt, 72. (/«) The Lucia Janiina v. The Mexican, Holt, 130. (i) The Concordia, L. R. 1 A. & E. 93. [k) The Ann Caroline, 2 Wall. 538. WHEN TO HK DEPAllTKl) FROM. 401 prevents lior answering her Iiclm readily, she must take Art. 23. precautions in time, and do all she can to comply with the Eegulations effectually (/). A brig hove-to, reefing top- sails, was held in fault for not porting (/;/). AVherc a ship had no head sail on her, and the Regulations required her to bear up, it was held that it was the duty of those on board to take the after sail off her, so that she might be better able to bear up (ii). If it appears that a vessel is unable to comply with the llegulations owing to her being disabled, or in stays, or for other reasons, it is the duty of those on board the other to watch her closely. I'hey have no right to speculate on the disabled ship being able to keep out of the way, but they should themselves at once take steps to make the collision impossible (o). It was held in America that the fact of a schooner's flying- jib being carried away was no excuse for her not bearing iip ; and that the other ship w^as not in fault because she failed in the daytime to see that the schooner was partially disabled (p). To justify a departure from the Regvdations which is Necessity of alleged to have been necessary to avoid immediate danger, f^J^^i'the*^ there must be clear proof that an adherence to them would Rpprulations have caused such danger, and also that the step taken was proved. the right step (q) . It is not enough to show that, if the approaching ship had taken one manojuvi-e when others were open to her, obedience to the Hegulations would have increased, instead of diminishing, the risk of collision. Therefore, where the steamship San Salvador was ap- proaching the steamship Mcmnoii on a crossing course, (/) The Test, 5 Not. of Cas. '276. liaah, Brown, Adiu. 453. (w) The Blenheim, 1 Sp. E. & A. {p) The H. I'. Baldwin, Brown, 285. Ad. 300. (h) The Calcutta, 3 Mar. Law (7) The Concordia v. The Esther, Cas. 0. S. 336. infra; The Planet v. TJie Aura, (0) TheTriscilla,!..^. iA. &B. Holt, 2')5 ; The Emperor v. The V2o ; Thr Eclipse and The lioi/al. Zephyr, Holt, "i-i ; and .see The Cor- Consort, Holt, 220; see also the Ch. sica, 9 Wall. 630. 492 THE REGVLATIONS. Art. 23. Cases -where depai'ture from the Regulations held not justifiable. having her on her own starboard bow, and taking no step to keep out of the way, and the speed of the latter was such that in the existing circumstances she would probably have passed safely across the former's bows. The Mcmnon was held in fault for not stopping her engines, although, had The San Salvador kej^t her course, the risk of collision would have been increased and not diminished by The 3Ie))inon slackening her speed (/■). Where it is possible to comply with the Regulations, Art. 28 would be no excuse for departing from them. In a case under the Trinity E/ules of 1840, it was held that it was no excuse for not observing the rules that the night was very dark, and that the other ship was not seen until she was very close (s). Where two steamships were meeting in the Thames end on, and one starboarded in order, as was alleged, to clear a barge, in the absence of proof that the starboarding was necessary, she was held in fault for a collision with the other steamship (/). The obligation on a ship which seeks to justify a departure from the Eegulations is heavy. She takes upon herself the obligation of showing both that the departure was necessary in order to avoid imme- diate danger, and also that the course adopted by her was reasonably calculated to avoid that danger (w). The fact that a steam tug had a heavy ship in tow, and a strong wind and tide against her, was held not to justify her departing from the rule requiring her to keep out of the way of an approaching sailing ship {cc). And wliere a large steamship of 1,356 tons had a disabled steamship of 1,495 tons in tow, and was fast to the latter by a tow rope and chain cables of such length that from the bow of the towing vessel to the stern of the other was nearly a quarter of a mile, it was held by the Privy Council that (r) The Memnon, 6 Asp. 317 ; in Dom. Proc. 62 L. T. N. S. 84. («) The Flint, 6 Not. of Gas. 271. [t) The Concordia and The Esther, L. R. 1 A. & E. 93. (;<) 21ie Agra and The Elizabeth Jenkins, L. R. 1 P. C. 501. [x) The Warrior, L. R. 3 A. & E. 553. WHEN TO HE DEPARTED FROM. 493 those circumstances did not justify a departure from the ^ ^t. 23. rule requiring steamships to keep out of the way of a sailing ship (//) . Two steamships on crossing courses (within Art. IG), both making for a pilot cutter, must keep clear of each other by observing the Eegulations. The fact that they are both making for the cutter does not justify the steam- ship with the other on her starboard hand in neglecting to keep out of the way (;:) . A sailing ship beating to windward ahead of a steamship is justified by Art. 23 in going about when she has stood in towards a sand ahead of her as near as is prudent, although, except for the danger of going ashore, it would be her duty to keep her coui'se {a). It seems that Art. 23 does not justify a departm-e from the Eegulations on the ground that it was reasonable to expect that the force of the blow would thereby be di- minished {b) . Where a collision may be avoided by obeying the Regu- Convenience lations, it is not a sufficient excuse for departing from them departinj that the collision might with equal safety and more con- ^^'^^^ *^® veniently have been avoided by one or both ships departing from the Regvdations. Thus, where a steamship sighted another at a considerable distance, approaching her nearly end on and a little on her starboard bow, it was held that the law required her to port, and that she was in fault for starboarding, although by porting she would have had to cross the bows of the other ship (c) . If a ship that is close-hauled must, in order to avoid a A ship close- ((/) The American and The Si/ria, 18o4 ; it is submitted that the de- L. R. 4 A. & E. 226 ; on appeal, cisiou would have been the same L. R. 6 P. C. 127. under the existing Regulations. {z) The Ada V. The Sappho, I AsTp. The observations in The Arthur Mar. Law Cas. 475. Gordon, Lush. 270, with regard to {a) The Orwell, supra, p. 477. the duty of a sailing ship to keep \b) The Khedive, 5 App. Cas. 876. out of the way of a tug and her (c) The Araxes and The Black tow, upon grounds of convenience, Fr'uice, 15 Moo. P. C. C. 122. This must be taken with caution. case was decided under the Act of mg he Regulations. 494 THE REGULATIONS. Art. 23. hauled, when required to depart from the Regula- tions requir- ing her to keep her course, should luff, if pos- sible. Neither ship may depart from the Regulations on the chance of the other obeying them. Combined operation of Art. 19 and Art. 23. collision, either luff or bear up, it lias been said tbat the more prudent course for her is to luff, if possible, " so as thereby to stop her way ; and mitigate as far as possible the effects of a collision, if a collision should take place" {d). Although the steps which the Eegulations require two vessels approaching with risk of collision to take are not necessary, in the sense that a collision would certainly be avoided by only one of the vessels obeying the Eegula- tions, the law must be obeyed by both. A vessel depart- ing from the Eegulations will not be excused on the ground that the collision would have been avoided if the other vessel had not disobeyed the law. In such a case Art. 23 is no justification for either ship in departing from the Eegulations. Thus, where two steamships were meeting end on, and a collision would not have occurred if either had put her helm to port, both were held in fault by the Supreme Coui't of the United States {e). It remains to be decided what effect Art. 19 has upon the application of Art. 23. In America, where a " whist- ling" rule similar to that of Art. 19 has been in force for many years, it has been held that a steamship signalling to another that she intends to depart from the Eegulations, and departing from them, is not in fault for such a depar- ture if it was agreed to by the answering signal from the other ship. But strict proof was required that the assent- ing signal was given (_/). It would probably be held that where a ship is hailed by another to take a particular coui'se, if she does so and a collision occurs, the latter could not be heard to say that the former was wrong for departing from the Eegula- tions {g). {d) The Agra and The Elizabeth Jenkins, L. R. 1 P. C. 501. (e) The America, 2 Otto, 432. (/) The Milwaukee, 1 Brown, Adm. 313. {(/) See above," p. 6, and cases there cited. Art. 28 of the Wash- ington Regulations makes the helm signals compulsory. ORDINARY PRECAUTIONS TO BE TAKEN. 495 No ship, u)idor (ni// circuits fa iicr-s, to )tegl<'ct j^roper precautious. Article 24 (A). Nothiitfi ill these rules .shall exonerate an// ship, or the Art. 24. oicner, or niasfcr, or erric thereof, from the consequences of Besides (1)11/ nrqlect to earn/ liiihts or si(iiiah, or of am/ neqlect to 2j'-^t'''yin8' the •^ ./ .' ./ 1 . .1 J Regulations, keep a proper look-out, or of the neglect of a)ii/ precaution proper pre- n-hich may he required by the ordinary practice of seamen, or to be'taken'in by the special circumstances of the case. ^^ cases. This Article is identical with Art. 20 of the Regulations of 1863, and with Art. 24 of the Regulations of 1880. It seems difficult to attribute to it an}' legal effect. It was inserted in the Regulations, probably, ex abundante cauteld, and as a declaration, not to be overlooked by seamen, of the legal consequences of negligence. The omission by a vessel preparing to anchor to warn a ship astern of her position and intention was held neglect of a " precaution requii-ed by the special cii'cumstances of the case" (?). The duty of those in charge of a ship to navigate lier with due regard to the ordinary rules of seamanship, and under special circumstances to depart from the Regula- tions, has been already referred to (/.). What is required Precautions of seamen is ordinary skill and ordinary intelligence, the^ordinary Neither Aii. 24, nor any other part of the liegulations, practice of makes it their duty to foresee and jDrovide against every have been accident. But where literal compliance with the Re^ula- Recognised by . . the law. tions is not enough to avoid a collision, all must be done that a seaman of ordinary skill and intelligence would do to keep clear of the other ship (/). Where, for example, an [h) Corresponding to Art. 29 of (/.•) See pp. 2, 213, 480, s^.?., above, the Washington liegulations. (/) The Jci). In the case of a collision between sailing smacks, it beinjr admitted that one of them was in fault, the other was held to be also in fault for not having more than one hand on deck, it being the opinion of the Elder Brethren tliat had there been two hands on deck the colli- sion might have been avoided (r). In a fog there should be strength at the helm suflicient to alter the ship's course as quickly as possible on the order being given (d). A vessel under way is bound to keep clear of another at Keepinpr clear anchor. The rule seems to be the same m all cases where anchor, one of the ships is under way and the other, though not at anchor, is for any other reason unable to keep out of the way ; as where she is fishing and fast to her nets, or in stays, or disabled (e). And it applies though the ship at anchor is brought up in the fair- way, or elsewhere in an improper berth. " It is the bounden duty of a vessel under way, whether the vessel at anchor be properly or impro- perly anchored, to avoid, if it be possible with safety to herself, any collision whatever" (/). If one ship is fast to the shore, or lying at established moorings, it can scarcely happen that the other w^ould not be held in fault for the collision {(/). Where a steamship in the daytime ran into a sailing ship brought up in a river 500 yards wide, it was held by an American Court that the steam- (a) The Arthur Gordon and The Independence, Lush. 270. (b) The Khedive atid The Toor- u-aarts, 5 App. Cas. 876. (r) The General Gordon, G3 L. T. N. S. 117. (d) The Europa, 14 Jur. 627. {e) See above, p. 31. (/) Per Dr. Lushiii•). A vessel voluntarily taking up such a berth in a dock does so at her own risk (•-<). So where two colliers were beached near each other for the jjurpose of discharging cargo, it was held that it was the duty of the last comer to moor head and stern, and in such a way as not to foul the other when the wind shifted {t) . In coming to an anchor caution must be used not to Coming to injiu-e or embaiTass other ships. A vessel rounding-to, so ^° anchor. as to bring her head upon tide, should, before altering her helm, look round and see that all is clear, and that her manojuvre will not endanger other ships {u). A ship, having lost one anchor off Dungeness, in (o) The Cumberland (Vice- Ad. Mar. Law Cas. 0. S. 217; The Court, Lower Canada), Stuart's George and The Lidskjalf, Swab. Rep. (18.58), p. 75; The Egyptian, Adm. 117. 1 Mar. Law Cas. O. S. 358. (*) The Patriotto and The Sival, (p) The Volcano, 2 W. Rob. 337 ; 2 L. T. N. S. 301. The Mapgic Armstrong and The Blue {t) The Vivid, 1 Asp. Mar. Law Bell, 2 Mar. Law Cas. 0. S. 318. Cas. 601. {'/) The Inn is fail and The Secret, (u) The Ceres, Swab. Adm. 250 ; 35 L. T. N. S.'SIO. The Shannon, 1 W. Rob. 463; The {r) The Indian and The Jessie, 2 Thilotaxe, 37 L. T. N. S. 540. 504 THE REGULATIONS. Art. 24. attempting to bring up in the Downs lost her second anchor, and drove foid of another vesseL It was held that, the weather being heavy, she was in fault for at- tempting, with only one anchor, to bring up ahead of another vessel without the assistance of a tug which she might have taken (.r). In coming to an anchor in a crowded roadstead or harbour, proper care must be used to shorten sail in time, and not to run in at too great speed. A vessel running into Stangate Creek, in the Med way, was held in fault for a collision caused by her running in under too great a press of sail (?/). Where a ship delayed taking up her berth until night, and in consequence of the darkness injured another, she was held in fault for not having brought up by daylight, when she might have done so in safety (;:) . Where, in Hong Kong harbour, a collision might have been avoided if the starboard anchor had been let go, and it could not be let go because it was unshackled, it was held to be negligence not to have had the anchor ready {a) . By Art. 14 of the Convention contained in the First Schedule to the Sea Fisheries Act, 1883 (46 & 47 Vict. c. 22), it is illegal for a fishing boat to bring up between sunset and sunrise on ground where di-ift-net fishing is actually going on. This Article applies only in the waters and to the vessels mentioned in the Act ( b) . Precautions to After coming to an anchor, those on board must show at anchor^ ^^ proper skill and seamanship in keeping their vessel from driving and endangering other craft. If a ship parts from her anchor, when with proper care she might have ridden in safety, and drives against another vessel, the collision {z) The Annot Lyle, 6 Asp. M. {z) The Egyptian, 1 Mar. Law C. 50. Cas. O. S. 358 ; 1 Moo. P. C. C. (?/) The Neptune the Second, 1 Dod. N. S. 373. 467 ; The Secret, 26 L. T. N. S. 670 ; («) The City of Teking, 14 App. The Earl Spencer, L. R. 4 A. & E. Cas. 40. 431; The Masten, Brown, Ad. 43G. (i) See further, as to this Act, supra. Art. 10. ORDINAKY PRECAUTIONS WTIKX AT ANCHOR. iOo will be held to have been caused by the negligence of the former, although after parting from her anchor the colU- sion was inevitable, and all was done that could be done to avoid it. If she drives from her anchor in consequence of her yards not having been sent down, or because she was not tended or made properly snug, she will be held in fault (c). AVhore it is customary and prudent to moor, a vessel neglecting to do so will be held in fault (r/). The duty to keep an anchor watch has been already refeiTcd to {e). If a ship drives from her anchor or parts her chain, and a collision may be avoided by employing a tug which is available, it is negligence not to employ her (./). Where a ship gave another a foul berth in the Downs, and drove against her in a gale of wind while ridiug at single anchor with forty-five fathoms of chain, it was held that, although the other vessel drove also, she was herself solely to blame (g). Insufficient ground tackle, or riding by a single anchor when there should have been two down, will make a ship liable for a collision so caused {/i). The ship must be duly tended while at anchor. A ship which goes foul of another through improperly breaking her sheer, will be held in fault (/). Where a ship was riding in an open and crowded roadstead in blowing weather, without having sent down her top-gallant and main-royal yards, she was held in fault for a collision caused by her dri\iug (/.•). If a ship in a dock or harbour subject to the Harbours, Docks, Art. 24. ((■) The Excelsior, L. R. 2 A. & E. 268 ; The Christiana, 7 Moo. P. C. C. 160. (d) The Gipsey King, 2 W. Rob. 537. {e) Supra, p. 497. (/) The Arran, 9 Quebec L. R. 278; and see The Aiiiiot Lylc, p. 504, supra. {g) The Maggie Armstrong v. The Blue Bell, 2 Mar. Law Cas. O. S. 318, 319. (A) The Massachusetts, 1 W. Rob. 371 ; The JJespatch, 3 L. T. N. S. 219 ; The Volmno, 2 W. Rob. 337 ; and see The IVilliam Lind.sat/, L. R. 5 P. C. 338 ; Allen v. Quebec Ware- house Co., 12 App. Cas. 101. (0 See The Tecrless Lush. 30. \k) The Christiana, 7 Moo. P. C. C. 160 ; and see 'The Ilubg Queen, Lush. 266 ; The Excelsior, L. R. 2 A. & E. 268. 506 THE REGULATIONS. Art. 24. and Piers Clauses Act, 1847, is insufficiently moored, after notice from the harbour-master to provide proper fasts, she incurs a penalty of 10/. (/). It has been held negligence not to increase moorings where the state of the weather required it {m). It was held by the Supreme Court of the United States that a vessel in a gale of wind, with another brought up near her, was in fault for not taking timely precautions for avoiding a collision caused by the other driving on her («) . In another American case(o), it was held that where a ship at anchor drives and comes into collision with another at anchor, the biu-den is on the former, alleging inevitable accident, to prove that she had a proper watch on deck, that she discovered the dragging at once, that she took proper measures to prevent it, and that her ground tackle was sufficient. If a ship is brought up by her own people, or by a compulsory pilot, in an improper berth, so as to endanger other ships, she must be shifted and taken to a proper berth as soon as possible (j)) . Where a ship was compelled to shift her berth in bad weather, owing to her having only one anchor down, and in doing so, although proper pre- cautions were taken, she came into collision, it was held that she was in fault for the collision, because of her original neglect in riding to a single anchor {q). It was held negligence in a ship in threatening weather to ride to a buoy in the River Tyne, with her chain cables unbent and with no anchor ready to let go in case of part- ing from the buoy. Even in such situations, if the weather is threatening or there is cause for special precautions, an {!) 10 & 11 Vict. c. 27, s. 61. (;;) The irohurn Ahhcy, 3 Mar. [m) The John JIarloj and The Law Cas. O. S. 240. As to the William Tell, 2 Mar. Law Cas. duty of the master to shift, al- O. S. 290 ; The Louiniana, 3 Wall. though the pilot is on board, if 164. he is no longer in charge, see S. C, (w) The Sapphire, 11 Wall. 164. p. 234, supra. (ol The Dutchens, 6 Bened. 48, (y) The Despatch, 3 L. T. N. S. 21•) Th^ Tladda, 2 P. D. 31 ; The [n) The Atla.«, 2 Mar. Law Cas. Kepler, 2 P. D. 40. As to the duty 0. S. Dig. 1480. to have chaius bent, see The City of {.r) The Thornton, 2 Bened. 429. Fcking, 14 App. Cas. 40. (//) The Scotia, 63 L. T. N. S. 324. (s) The Vivid, 1 Asp. Mar. Law (;) The Kjobenharn, 2 Asp. Mar. Cas. 601. Law Cas. 213 ; and ."^ee The Clarita {t) See supra, p. 10, and The Clara, 23 Wall. 1. 508 Art. 24. Slipping avoid a collision. to THE REGULATIONS. Regulations, and tlie fog continued such that there was no reasonable opportunity of moving her, she was held free from blame for collision with anotlier steamer coming up after her (a). If there is no rule or custom requiring her to bring up out of the fair- way she may anchor there, although dii'ectly in the track of ships. Thus, a vessel brought up in the Mersey, directly in the track of the ferry steamers, was held not to be in fault for lying there [b). In America it is held that if a vessel does bring up in the track of ferry boats, as she is at liberty to do, she must keep a vigilant look-out and warn the ferry boat of her position (p). The obligation on a ship under way to keep clear of another at anchor, as before stated {d), applies although the ship at anchor is in an improper berth. And a vessel brought up in a berth which is improper only in the sense that it is an exposed and dangerous position, does not thereby contribute to a collision caused by another ship negligently driving into her (e). 13 ut when a barge in the Thames was brought up in an exposed position, and was sunk partly by the swell of a passing steamer, it was held that the negligence in bringing up where she was exposed to the steamer's wash partly caused the loss, and the suit against the steamship was dismissed (_/'). It seems that a vessel at anchor is not justified under all circumstances in holding on when by slipping she could avoid a collision. A vessel in Falmouth harbour was driving in a gale of wind towards the breakwater. She could have avoided the breakwater by slipping from her anchor, and getting under way. She did not slip in time, [a) The Aguadillana, 6 Asp. Mar. Cas. 390. [b) The Lancashire, L. R. 4 A. & E. 198. [c) The T). S. Grcfiorji, 6 Blatchf. 528 ; The Hudson, h Bened. 206 ; The Exchange, 10 Blatehf. 168; and see mtpra, p. 408. {d) Supra, p. .3o. (f) The Despatch, 3 L. T. N. S. 219; 14 Moo. P. C. C. 83. if) The Thtkr of Cormvall, 1 Pr. Adm. Dig. p. 201. GETTING UNDER WAV GOING AHOUl, i09 went ashore, and did injury to the breakwater. It was Art. 24. held that she was liable for the damage because of her neglect in not slipping in time (//). A vessel getting under way unnecessarily in bad weather Getting with a number of other ships about her would probably be "° ^'^ ^ ^^' held in fault for a collision whieli would not have occurred if she had lain fast {//). The duty of a heavy ship to exer- cise more than ordinary caution in getting under way, and of other sliips to keep clear of her, has been insisted upon by the American Courts {i). A vessel which was moved from one dock to another by a tug at night was held in fault for a collision with a ship at anchor. It was held that under the particular circum- stances she had no right to be under way at all (/.•) . In The John Fenioick {I), it was held to be the duty of a vessel casting off from her moorings at night to warn an approaching vessel by exhibiting a light. In an American case it was held that a ferry steamer getting under way when there was another vessel in her way which she ought to have seen, and which it was im- possible to clear, was solely in fault for the collision. But it was said that she was not required to wait for the arrival of another boat running on the same ferry, and which was due {in). If a vessel rides by, or makes fast to, or runs foid of, Riding by a any lightship or buoy, in addition to the obligation to ° make good all damage, she incurs a penalty of fifty pounds {u). A vessel in stays — " in irons " — is almost as helpless for Ship in stays; {ff) The Ukia, 3 Mar. Law Cas. (i) The City of Far is, 14 Blatchf. O. S. 148; cf. The Sapphire, 11 531. Wall. 164. {k) The Boricssia, Swab. Adm.di. (A) The Carrier Dove, Br. & Lush. (/) L. R. 3 A. & E. 500. 113; The.luliaM. Hal/or/:, iSpvuiXXW, {in) The Columbits, Abbott, Adm. 539 ; (yXeil v. Seam, 2 Sinaguc, 384. 62; The Thornton, 2 Boned. 429. {/;) Merchant Shipping Act, 1854 The last three are American deci- (17 &, 18 Vict. c. 104), s. 414. sions. 510 THE REGULATIONS. precautions before going- about. Art. 24. tlie purpose of keeping out of the way of another as a ship at anchor. It is the duty of other ships to keep clear of her. Before going about it is the duty of those on board " to take a due look round beforehand to ascertain that no ship is in the neighbourhood likely to come upon them" (o). If weather permits a ship must have such canvas on her that she can be kept under command and be able to stay ( p) . Upon similar grounds, it would seem to be negligence in a ship to be hove-to unnecessarily in the track of ships, a vessel hove-to being almost helpless, and therefore an obstruction to the navigation (q). It has been held by the Privy Council that a ship should not wear without reason when she can stay ; and a ship has been held in fault for a collision with another astern when she wore unnecessarily (r). In America a schooner wearing so close ahead of another ship that the latter could not clear her was held in fault (s). Missing stays. If a vessel misses stays the duty of those on board is to get her under command again as soon as possible {f). Where it is the duty of a ship under the Regulations to keep out of the way, she should not stand so close to the other ship, before going about, that if she misses stays a collision must take place. It will be no excuse that she was struck by a squall while in the act of going about («). A full-rigged ship, with the wind aft, meeting a brig and a schooner, both close-hauled on the starboard tack, came into collision with the brig, owing to the sudden and Ships working to windward in company. [o) The Sea Nijmph, Lush. 23 ; see also The Ida and The Wasa, 2 Mar. Law. Cas. O. S. 414; The Allan and The Flora, ibid. 386 ; The Eleanor and TIte Ahiia, ibid. 240 ; The Bolderaa, Holt, 205 ; The Neiv- hirgh and I'he O.scar, Holt, 231. {p) The Siirlvigshire and llie Africa, 2 Mar. Law Cas. 0. S. Dig. 672 ; The Falkland and The Navigator, Br. & Lush. 204. ((j) See supra, p. 416. (r) The FaUdand and The Navi- gator, ubi supra. (s) The Saxonia, 2 Mar. Law Cas. 0. S. 417. [t) The Eingston-hy-Sea, 3 W. Rob. 152; The Lake St. Clair anA. The Underwriter, 3 Asp. Mar. Law Cas. 361. {ti) The Kingston-by-Sea, ubi supra ; The Plato and The Ferse- verance, Holt, 262. GOING AliOUT. 511 unexpected going about of the schooner. It was held that ^rt. 24. she ought not to have stood so close to the other ships as to make a collision inevitable if either of them went about {x). So, a sailing ship is in fault if she goes about unnecessarily under the bows of a steamship (//). Where two ships arc turning through a narrow channel, one astern of the other and on the same tack, the duty of the sternmost ship is to keep a good look-out, and be ready to go about, if necessary, the instant the other goes about, so as not to risk a collision by standing on while the other is in stays, or has not gathered way on the other tack (z). It seems to have been considered by the Privy Council that a ship in stays, or just gathering way on the port tack, should apprise another ship approaching her on the starboard tack of her inability to keep out of the way (a). But a sailing ship turning up the Thames was held not to blame for giving no notice to a steamship astern of her intention to go about {b). The rule in America as to ships working to windward in Rule in narrow channels is that they must "beat out their tacks," ^adngUt*" and not go about before the depth of water or exigencies tacks. of the navigation require it(('). Vessels are expected to know the channel and the point at which other ships will be compelled to go about {d). A ship going about before she gets to the edge of the channel, and thereby causing a collision with a passing steamship, was held in fault (^). But the rule as to " beating out tacks " does not apply so as to preclude a ship from going about before she reaches {x) The Mobile, Swab. Adm. G9 ; (A) The Palatine, 1 Asp. Mar. ibid. 127. Law Cas. 468. (I/) See The Onvcll, supra, p. 477. (c) Thorp v. ITammond, 12 "Wall. (z) The Fri.icilla,Ij.R.SA.&Y.. 408; The Empire State, 1 Boned. 125 ; The Eclipse and The lioyal 57 ; The Bridgeport, 6 Blatchf. 3 ; Consort, Holt, 220. The Charlotte liaab, Bro\\-ii, Adm. (a) The lake St. Clair and The 453. Underwriter, S As^. Mar. Law Cas. {d) The Nellie D., 5 Blatchf. 361 ; and see The Leonidas, Stuart's 245. Vice- Ad. Rep., Lower Canada (e) The Nereus, 3 Bened. 238. (1858), p. 226. 512 THE REGULATIONS. Art. 24. Whether a ship should hokl herself in stays for another. Extra care required in passing over fishing- grounds. the slioal water iu order tliat she may be able to weather a point of land, or other object, on the next tack (/). The rule does not appear to have been expressly recognised in any Court in this country. In The Palatine [•) See Article 21. IM. T. I, 514 THE REGULATIONS. Art. 24. vessels navigating the river to keep in mid-cliannel, or if tliey go along the shore to go very slowly (.s). Wliere two steamships were meeting in a nari'ow channel, one going with and the other against the tide, and it was necessary for one of them to stop, it was held by the Supreme Court in America that the vessel going against the tide should have stopped at once, as she could do so the more readily {f). And in T//c Talahot {u), it was recently laid down in the Admiralty Division that it is a prudent ride for a steamship na^dgating a river against the tide to wait before rounding a point until a vessel coming from the opposite direction has passed clear, and a steamer was held in fault for not observing this nde in the river Scheldt. A vessel warping down the Thames against the flood tide was held in fault for a collision thereby occasioned (x) ; and in America it was held that a vessel with a warp across a river fair- way is bound to slack it to allow another vessel to cross (?/). A steamsliip proceeding down the Thames at night against a flood tide is required to exercise the greatest caution (s). Ships drop- A steamship is not justified in leaving a wharf in the forMnost^ ^™ Thames in a dense fog, and attempting to go up the river at a flood tide. And it may be the prudent course for a vessel navigating the river in a fog with the tide to dredge stern first with her anchor down, so as to be able to bring up in case of emergency (a). A keel in the Groole reach of the river Ouse was held in fault for driving tlirough a narrow part of the fair-way without her anchor on the bottom or near it {h). It would probably be held to be the duty of a ship [s] The Favorita, 18 WaU. 598. (r) The Trident, 1 Sp. E. & A. {t) The Galatea, 2 Otto, 439 ; as 217. to the Thames, see infra, p. 582. {a) The Aguadillana, 6 Asp. [u) 89 L. T. 239. M. C. 390, {x) The Hope, 2 W. Eob. 8. {h) The Malph Creyke, 6 Asp. \y) The Maverick, 1 Sprague, 23. M. C. 19. SEAMANSIIIP — OllDlNAllY I'RECAUTIONS. olo dropping through a fair-way in this manner to exhibit a Art. 24. light over her stern, or in some otlier way to warn ships that she is approaching them stem foremost (c). By 4'i Vict. c. 29 (Canada), Art. 27, sliips are required Rafts to keep out of the way of rafts. The enactment relating to ships engaged in laying or Telegraph repairing telegraph cables, and the duty of other ships to "^ "^''* keep clear of them, has been already referred to {supra, p. 341). If a vessel enters an eddy tide, and is thereby prevented Eddy tide, from answering her holm, and goes into colhsion with another ship, it is no excuse that the eddy prevented her from answering her helm {(/), unless the action of the tide could not have been anticipated or provided against (c) ; and the effect of the tide on other sliips must be known and allowed for (./'). In the case of a steamship navigating the Goole reach Risk of of the river Ouse, where the water was so shallow that ^ou^^f there was risk of her smelling the ground and failing to answer her helm, it was held to be her duty, by occasion- ally stopping her engines, to diminish her way, and so be well under control in case of emergency, and she was held in fault for neglect of this precaution (^7). If the weather is such that an object cannot be seen in Being iindcr time to avoid it, a vessel has no right to be imder way at leather ; ^^ all. In such weather she should bring up on the fii'st stress of opportunity, and not get under way unless obliged to do so (//.). In thick and bad weather generall}', it is the duty of a vessel under way to exercise more than ordinary care (c) See The Indian Chief, 14 P. D. (/) The Frantz Sigel, 14 Blatchf . 24. 480. [d) The La Plata, Swab. Adm. (. 8. rnderivrlUr, 3 Asp. Mar. Law Cas. (t) The Ulster, 1 Mar. Law Cas. 361. 0. S. 234. 520 THE KEGULATIONS. Art. 24. keep out of the way of other craft. In the absence of any rule or custom, they are not required to navigate in the shallow water of a river, so as to leave the deep channel open to vessels of greater draught (k). In the Thames, where they do not carry anchors, they are justified in going on after being overtaken by a fog, until they come in contact with something to which they can make fast (/). It is, therefore, the duty of other vessels, and particidarly of steamships, to keep out of their way. In order to do this, they must know, in each case, the set of the tide and probable course of the lighter (m) . Speed in nar- In a river or narrow channel, steamships must go at row channels. ^ j p ^ -m j_ • n ^ t such a rate oi speed as wiii not raise a sweii to endanger barges and other craft. In the Thames, and some other rivers, there are bye-laws to this effect. Whatever the rate of speed required by local bye-laws, if a ship, though not exceeding that rate, endangers other craft, she will be held in fault (»). But for a vessel sunk by the swell of a passing vessel to recover against the other ship, it must be clearly proved that the sunken craft was not mismanaged or overladen (o) . In the Suez Canal, five and a-half knots ; in the Tees, six miles an hour ; and in certain parts of the Thames, seven statute miles over the ground, are the highest rates of speed allowed by the local rules (p). Where a rate of speed is specified by a local nde of navigation or Act of Parliament, the rate over the ground as distinguished from the rate through the water, is prima facie intended {q) . {k) The Ralph Creyhe, G Asp. M. («) The Butavicr, 1 Sp. E. & A. C. 19. 378 ; 9 Moo. P. C. C. 286 ; see The [1] The Rose of England, 6 Asp. Duke of Comwall, 1 Pr. Adm. Dig. M. C. 304. 135 ; Smith v. Dobson, 3 M. & G. 59. [m) The Swalloiv, 3 Asp. Mar. (o) Luxford v. Large, 5 C. & P. Law Cas. 371 ; The Ou-en Wallis, 421. The rule of equal division of L. R. 4 A. & E. 175. For Ameri- loss only applies in case oi collision ; can decisions to the same effect, see 36 «& 37 Vict. c. 66, s. 25, sub-s. 9 ; Fretz V. Bull, 12 How. 4G6 ; Fearce but see p. 136, supra. V. Taqe, 24 How. 22?>; Butterjield {p) See Ajjpendix for these rules. V. Boyd, 4 Blatchf. 356. [q) The Alston, 8 P. D. 5. PRKCAUTIOXS AT A LAUNCH. 521 Whore a vessel is being launclied, the law casts upon Art. 24. the persons in charge of the launch tlio obligation of con- s^iai ~ ducting it with the utmost precaution, and of giving such precautions notice as is reasonable and .sufficient to prevent injury to launch, passing vessels. In The Am/aia.siaii (r), althougli notice of the intended launch was posted up in a conspicuous place, flags were flying on the ship to be launched, and two tugs with boats were employed to warn passing vessels, a vessel that was passing was not warned, and those in charge of the launch were held responsible for a collision with her. In T/ie Bleuheim {s), Dr. Lushington said, ^^dth regard to the duty of those in oliarge of the launch : — " Such reasonable notice of a launcli shall be given as shall pre- vent danger or reasonable chance of danger to other vessels navigating in the river. Tliat is the first great principle and rule in these cases. As all other vessels have a right to navigate in a river, no person shall interfere with that navigation mthout such reasonable notice of a launch as may prevent the cliance of an injury to them. What is reasonable notice depends on local circumstances, the breadth of tlio river, the number of vessels passing, and other circumstances of tliat kind. It must be not a mere general notice of a launch on a particular day ; the notice must so specify the time of the launch that vessels navigating up and do^\Ti the river may not be damaged or incur danger." In The Am/a/usian {t) the duty of those in charge of a launch was thus stated : " The law throws upon those who launcli a vessel the obKgation of doing so with the utmost l)rocaution, and giving such a notice as is reasonable and sufficient to prevent any injury liappening from the launch ; and, moreover, the bm-den of showing that every reasonable precaution has been taken, and every reason- (>•) 2 r. D. 231 ; see also T/ic (s) 4 Not. of Cas. 393. Viaiiua, Swab. 405. (/) it was held that a vessel at anchor in the way of a launch was in fault for a collision with the launch. Notice had been given her at six o'clock of the intended launch, which took place at half -past ten ; and shortly before that hour a tug had been sent by those in charge of the launch to endeavour to get the ship at anchor to allow the tug to tow her out of the way. In The Glengarry (s) it was held that all proper pre- cautions were taken, and that the vessel under way (a tug with barges in tow) was solely in fault for steaming across the path of The Glengarry at the moment she was being started. Even after proper notice of a launch has been given, it must not take place so long as other vessels are in the way. If it is customary for the harbour-master to super- intend or be present, it should not take place in his absence [ci) . (u) 8 P. D. 119. Similar Ian- P. D. 235, on this point, guage was used by Sir R. Philli- (y) 7 P. D. 217. more in The Glengarry, 2 P. D. [z) 2 P. D. 235. 235. («) The United States, 2 Mar. Law (x) See also The Glengarry, 2 Cas. 0. S. 16G. LOCAl- HULKS TO UKMAIX IN FORC'E. 523 Tliore is no rule in law requiring small vessels to keep Art. 24. out of the way of larger ones, though it may be much Small craft easier for thorn to do so than for the larger ship to take ^yMw't'r'^ the steps required by the Kegulations. A large ship keep out of going at a slow speed in a narrow channel may be unable hea^^^ps. to alter her course rapidly, but, so far as she can do so, she must comply with the Regulations. In such a case it will be the duty of the smaller vessel to take such precau- tions as are rendered necessary by the comparatively help- less condition of the larger ship {b). Reservation of Rules for Ilarbour.s anrl InlancJ Kavigafiou. Akticle 25 (c). NothiiHj in thm' rules shall interfere with the operation of Art. 25. a special rule, duhj made by local authority, relative to the Local rules navigation of any harbour, river, or inland naviyation. bv\hf General This Ai-ticle is identical with Art. 25 of the Eegula- tions of 1880. The Kegtdations of 1863 contain no con-esponding Article. It does not appear to make any alteration in the law as regards waters within the Queen's dominions to which the Merchant Shipping Acts apply, the effect of local rules in such waters being saved by 25 & 26 Vict. c. 63, s. 31. Local rules have not, in all cases, been recognized by the Coiu'ts as of equally binding effect with the general Regu- lations ; but there is no doubt that an infringement of a local rule made by a competent authority and applicable to the case will, unless excused by special circumstances, be held to be negligence contributing to a collision (d). A {/)) See IVte La Plata, Swab. the Washini^ton Regulations. Adm. 220; onapp., tiic^. 298 ; aud {d) See The Margaret, 9 P. D. see The Arthur Gordon and The 47 : 9 App. Cas. 873 ; The Yonrri ludrpetideinr. Lush. 270. and The Spearinan, 10 App. Ca^. {c) Corresponding to Art. 30 of 276. 524 THE REGULATIONS. Art. 25. Effect of local rules in fo- reign waters. L}'e-law made under a local Act required ships coming into the Tyne to keep on the north side of the river. The Eaiihn-aite Hail, coming in from the sea in a tliick fog, was in collision, on the south side of the river, with a vessel bound out. In the absence of proof of negligence on the part of the latter, The Ilaithimite Hall was held to be in fault for the collision (f). In this case Sir K. Philli- more said, with regard to the effect of local rules : " There should, however, be no misunderstanding as to the effect of these and similar bye-laws governing the navigation of a river. It cannot be held that, because they or any of them are disobeyed, the vessel disobeying them is therefore to be held to blame. They are only evidence of what it is the duty of a vessel to do under the circumstances named in the particular bye-law. As such evidence, however, they are an important element in every case that comes within their provisions ; and if it should apj^ear that by the breach of one of them a ship has occasioned or contributed to a collision, the existence of such a bye-law would afford the very strongest reason for holding that a ship had been guilty of a breach of duty and was to blame for the collision "(/). An infringement of a local rule made under 25 & 26 Vict. c. 63, s. 'j2, or by or under an Act which incorporates 85 & 36 Vict. c. 85, s. 17, will cause the ship to be held in fault without reference to the question of actual negligence. See supra, pp. 58, seq. The words of Article 25 are very wide, and appear to negative the operation of the general Regulations in all (e) 'The Raitliwaite Hall, 2 Asp. Mar. Law Cas. 210. (/) As to the obligation to obey local rules, the recognition of them by an Admiralty Court, and proof of them, see The Henry Morton, 2 Asp. Mar. Law Cas. 466 ; The Iron Dul-e, Holt, 227 ; The PcerlesH, Lush. 30; 13 Moo. P. C. C. 484; The Smyrna, 2 Mar. Law Cas. O. S. 93. As to the effect of a breach of a local statutory rule or duty, see The United Service, 8 P. D. 56 ; Atkinson v. Newcastle a)icl Gateshead Waterworks Co., 2 Ex. D. 441. Ignorance of a local rule is no excuse for disobeying it : The River Lerwent, 6 Asp. M. C. 467, i)cr Lord Esher, M. E,. LOCAL HULLS TO IIKMAIN IN FORCE. 525 waters, at homo or aLroad, whore they conflict with rules ' " duly made by local authority." But it seems to have heen held that local rules as to sliips' lights in foreign waters were not binding on Britisli sliips {(j). Local rules are in force iu tlie Thanios, Mersey, Arron Local rules, river, Clyde, Ilumbor, Tees, Trent, Tyne, and at Belfast, Dublin, and Cork. In the case of the Thames and some other waters, the local rules are nearly identical with the general llegulations. Some of these rules will be found in the Appendix, infra. It has been hold by a Scotch Court that in the river Clyde, whore local rules of navigation are in force, the general Hegulations nevertheless applied ; and a steam- ship that had infi'iuged the general Ilegulations was held in fault (//) . Vessels navigating the sea channels at the mouth of the Mersey are requii-ed to keep on the starboard side of the channel ; and vessels at anchor in those channels are required to exhibit a second riding light at the mizen- peak («'). By 25 & 26 Yict. c. 63, s. 32, her Majesty has power to make regulations for rivers and inland waters where they cannot be made under any local Act. Under this j^ower rules have been made for the Mersey (/•) and for some of the Lancashire inland navigations (/). By 10 & 11 Yict. c. 27, dock and harbour authorities have power to make such regulations ; and by 28 & 29 Vict. c. 125, in dockyard ports the Queen's harbour-master has a similar power. Under the last-mentioned Act Regulations have been made for Queensto"\vn, Doptford, {g) The William Htitt, cited in (i) 37 & 38 Vict. c. 52. See Lowndes on Collision, 187 ; The Appendix. Micheltmo and 'The Dacca, P. C. (A-) See Order in Council of 27th May, 1877. June, 1866. (h) Little V. Bariis, The Owl and (/) See two Orders in Council of The Ariadne, 9 Sees. Ca. 4th Ser. 18th May, 1870. 118. 526 THE REGULATIONS. Art. 25. Local rules conflicting' with the general Ilea-ulations. Chatliam and Slieerness, Woolwicli, Portsmoutli, Plymouth, Pembroke, and Portland {in). There are special rules for the navigation of the Danube {)i), and for the Suez Canal (o). There are in force in the Bosphorus rules relating to the navigation of steamships. These rules are issued in the Turkish language, and it is not clear that they are intended to apply to any but Turkish ships. One of them requires steamships in the Bosphorus to navigate in mid- channel. Difficulties arise in some cases where the local rules are not consistent with the general Regulations ; but it appears that in the waters in which they are in force the local rules must be obeyed without regard to the general Regu- lations, if the latter conflict with them. At a time when there was no bye-law in force in the Thames requmng sailing ships to carry lights, a Trinity sailing ballast lighter was run down in the river when carrying no lights. It was held that, not being a sea-going vessel, she was not required by the general Regulations to carry lights, and that she was not required to carry them under the local rules, there being no rule on the subject (p). Sir R. Phil- limore expressed an opinion that the power of the local authority (the Thames Conservators) did not enable them to make bye-laws for sea-going ships, and their powers applied to river craft only. It seems, however, that the existing Thames bye-laws are binding on all ships in the Thames. (w) See Orders in Council of 29tli Feb. 1868, 29th June, 1878, 19th May, 1885, 29th June, 1888, 15th Aug. 1890, and 22nd Nov. 1890. («) As to foi-mer rules for the Danube, see The Smyrna, 2 Mar. Law Cas. 0. S. 93 ; Orders in Council of 6th January, 1862; 21st March, 1863; 6th April, 186G. The Danube rules now (1890) in force appear to be those of 30th May, 1884, replacing those of 19th May, 1881. [o] The substance of these rules will be found in the Appendix below. {p) The C. S. Butler, L. K. 4 A. & E. 238. In America there are in force special rules as to steamships' lights, some of which appear to be inconsistent with the Kegulations. LIGHTS I'Oll SQUADllONS AM) CONVOYS. 527 It appears tliat where the local rules do not conflict witli Art. 25. the general rules, the latter are supplementary to the local rules. Local rules, though not made by any competent authority, may, by long usage and well-recognized practice, establisli a custom, the infringement of whicli will be negligence. The obligation to obey such a custom of the river was upheld by the Privy Council in The Fi/cuoord. That case was decided under sect. 297 of 17 & 18 Vict. c. 104, by which it was enacted, in effect, that vessels going up the Thames should keep on the north or star- board side. The Fi/enoorcl, a foreign ship, was navigating on the south side, and came into collision with a vessel bound down. It was lield that, even if the statute was not binding on foreign ships, a custom had emanated from the statute that ships should navigate in accordance with it, and that Tlie Fycnoonl was to blame for transgressing the custom ((/) . The question may arise whether in rivers, such as the Thames, where there are in force local rules which contain no " starboard side " or corresponding rule, vessels are required b}^ Art. 21 of the general Eegulations to navigate on the starboard side. There is no doubt that the intention of those who framed the Thames Eules was that vessels should be free to navigate on either side of the river, and it would probably be held that such is the law j but the question is not free from doubt (r). Si)eci(d Liglits for Squadrons and Convoys. Article 26 (s). Nothing in these rules shall interfere icith the operation of Art. 26. any special rules made hy the Governme)it of any nation Special lights {q) The Fymoord, Swab. Adm. 447. 374 ; see also, as to local custom, (>•) See above, p. 465. The Smyrna, 2 Mar. Law Cas. [s) Corresponding to Art. 13 of O. S. 93 ; 2 Moo. P. C. C. N. S. the Wasliington Regulations. 528 THE REGULATIONS. Art. 26. for squadrons and convoys. uHh respect io additional station and signal lights for ttvo or more ships of irar, or for ships sailing under convoij. This Ai'ticle corresponds with Art. 26 of the Regulations of 1880. The Regulations of 1863 contained no similar proviso. Her Majesty's ships are not bound by the Regulations issued under the powers of the Merchant Shipping Acts [t) ; but Regulations exactly in accordance with them being issued by the Lords of the Admiralty, the question of negligence in case of a collision between two of her Majesty's ships, or between one of them and a merchant ship, is substantially the same as in the ease of a collision between merchant ships («). In the case of a collision between a foreign man-of-war or public ship and a merchant vessel, the foreign vessel, if she submits to the jurisdiction of the courts of this country, would be bound by the Regulations {x). Art. 27. Distress signals. Article 27 (//). When a ship) is in. distress, and requires assistance from other ships, or from the shore, the following shall be the signals to he used or displayed hij her, either together or separately, that is to say : — In the daytime — 1. A gun fired at intervals of about a minute ; 2. The Internatio)ial Code signal of distress indicated by N. C; 3. The distant signal, co)isi.sting of a sipun-e flag, having either above or below it a ball, or anything resem- bling a ball. (t) See 17 & 18 Vict. c. 104, s.4. (m) H.M.S. Topaze, 2 Mar. Law Cas. O. S. 38; H.M.S. Supply, ibid. 262. And see Art. 1001 of the Queen's Regulations for the Navy, of 1879. (.r) See The Lord Byron, cited Maude and Pollock on Shipping, 4th ed. 607, note (A-) ; The JSfew- battlc, 33 W. R. 318. (y) Corresponding to Art. 31 of the Washington Regulations. DISTRESS SIGNALS. 529 At nujJd — Art. 27. 1. A (J HH fired at intervals of about a miinite ; 2. F/anu's on the s//ij) {as from a hiundng far barrel, oil barrel, ^c.) ; 3. Rockets or shells, throtcinrj stars of anij colour or de- scription, fired one at a time, at short inter rak. The Regulations of 1880 contain no corresponding Article. The Article appears to have been inserted in the Regu- lations by mistake. Her Majesty has no power under the Acts recited in the Order in Council of the lltli August, 1884, to make regulations for vessels in distress requiring assistance. The signals specified in Art. 27 are, however, authorized by 86 & 37 Vict. c. 85, s. 18, as regards British ships, and all ships within British jurisdiction. M. M M APPENDIX. 25 & 26 Vict. c. 63, ss. 25—32, and ss. 57, 58, 60. § 25. On and after the 1st day of June, 186.3, or such later EDaftmont of day as may bo fixed for the pui-pose by Order in Council, Regulations the I\oo-ulations contained in the Table marked (C) in the ^•*^'{ff^"i"5 schedule hereto shall come into operation and be of the same s^jfTjal's and force as if they were enacted in the body of this Act ; but her sailing rules, Majesty may from time to time on the joint recommendation in Schedule, of the Admiralty and the l^oard of Trade, by Order in Council, Table (C). annul or modify any of the said Regulations, or make new Regulations in addition thereto or in substitution therefor ; and any alterations in or additions to such Regulations made in manner aforesaid shall be of the same force as the Regula- tions in the said schedule. § 26. The Board of Trade shall cause the said Regulations, Regulations and any alterations therein or additions thereto hereafter to to be be made to be jirintod, and shall furnish a copy thereof to any published, owner or master of a ship who applies for the same ; and production of the Gazette in which any Order in Council containing such Regulations, or any alterations therein, or additions thereto is jiublished, or of a copy of such Regula- tions, alterations, or additions signed, or purporting to be signed by one of the Secretaries or Assistant-Secretaries of the Board of Trade, or sealed, or purporting to be sealed with the seal of the Board of Trade, shall bo sufficient evidence of the due making and purport of such Regulations, alterations, or additions. ^ 27. All owners and masters of ships shall bo bound to Owners and take notice of all such regulations as aforesaid, and shall, so masters bound long as the same continue in force, be bound to obey them, ^^ ° ^ them, and to carry and exhibit no other lights, and to use no other fog signals than such as are required by the said Regulations; and in case of wilful defaidt the master or the owner of the ship, if it appear that he was in such fault, shall, for each occasion upon which such Regulations are infringed be deemed to be guilty of a misdemeanour. M M 2 532 APPENDIX. Breaches of Regulations to imply ■wilful default of person in charge. If collision ensues from breach of t lie RegnlationSy ship to be deemed in fault. Inspection for enforcing Regulations. Rules for harbours ^28. In case any damage to person or property arises from tlie non-observance by any ship of any Regulation made by or in pursuance of this Act, such damage shall be deemed to have been occasioned by the wilfid defaidt of the person in charge of the deck of such ship at the time, unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the Regulations necessary. § 29. If in any case of collision it appears to the Court before ufiicJi the case is tried, that such collision ivas occasioned by the non-observance of any Rcyulation made by or in pursuance of this Act, the ship by ichicJi such Reyulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfac- tion of tlie Court, that the circumstances of the case made a departure from the lieyulation necessary. (Repealed 36 & 37 Tict. c. 85, s. 33; the same Act containing (s. 17) a corre- sponding proviso. See infra, p. 536.) § 30. The following steps may be taken to enforce compli- ance with the said Regidations ; that is to say, (1.) The surveyors appointed under the third part of the Principal Act (a), or such other persons as the Board of Trade may appoint for the purpose, may inspect any ships for the purpose of seeing that such shijis are properly provided with lights and with the means of making fog signals in pursuance of the said Regulations, and shall for that purpose have the powers given to insjiectors by the 14th section of the Principal Act. (2.) If any such surveyor or person finds that any ship is not so provided, he shall give to the master or owner notice in writing, pointing out the deficiency, and also what is, in his opinion, requisite in order to remedy the same. (3.) Every notice so given shall be communicated in such manner as the Board of Trade may direct to the collector or collectors of customs at any port or p'orts from which such ship may seek to clear, or at which her transire is to be obtained ; and no collector to whom such communication is made shall clear such ship outwards, or grant her a transire, or allow her to proceed to sea without a certificate under the hand of one of the said surveyors, or other persons appointed by the Board of Trade as aforesaid, to the effect that the said ship is properly provided with lights, and with the means of making fog signals in pursuance of the said Regu- lations {b). § 31. Any rules concerning the lights or signals to be carried by vessels navigating the waters of any harbour, river, or («) 17 & 18 Vict. c. 104. to a Court of Survey against a sur- \h) The M. S. Act, 1876 (39 & 40 veyor's refusal of a certificate. Vict. c. 80), s. 14, gives an appeal LKGISLATIOX A>; TO f:f)T,r.TSK)XS. 533 other inland navigation, or concerning the steps for avoiding under local collision to bo taken by such vessels, which have been or are ■^^^'^ ^!^ ^r'^' . hereafter made by or luidor the authority of any Tjocal Act Khali coutiuuo and bo of full force and effect, notwithstanding anything in this Act or in the Schedule thereto contained. § 32. In case of any har])Our, river, or other inland navi- in harbours gation, for which such Acts are not and cannot be made under and rivers the authority of any Local Act, it shall be lawful for ITor where no such Majesty in Council, upon application from the harbour, trust, r^Jptf ^^'^ V)„ or body corporate, if any, owning or exercising jurisdiction made, upon the waters of such harbour, river, or inland navigation, or, if there is no such harbour, trust, or body corporate, upon application from persons interested in the navigation of such waters, to make rules concerning the lights or signals to be carried, and concerning the steps for avoiding collision to be taken by vessels navigating such waters, and such Rules when so made shall, so far as regards vessels navigating such waters, have the same eifect as if they were Regulations contained in Table (C) in the Schedule to this Act, notwith- standing anything in this Act or in the Schedule thereto contained. § 33. In every case of collision between two ships it shall be In ease of col- the (hitij of the person in charge of each ship, if and so far as he lisiou one ship can do so without danyer to his oicn ship and crew, to render to shall assist the the other ship, her master, crew, and passengers {if any") such ^ '"' assistance as may be practicable, and as may be necessary in order to save them from any danger caused by the collision. In case he fails so to do, and no reasonable excuse for such failure is shotcn, tlie collision shall, in absence of proof to the contrary, be deemed to have been caused by his wrongful act. neglect, or default ; and such failure shall also, if proved upon any iiwestigation held under the third or eighth part of the principal Act, be deemed to be an act of misconduct or a default for tchich his certifcate {if any) may be caticelled or suspended. (Repealed by 36 & 37 Yict. c. 85, s. 33. The same Act con- tains (8. 16) a similar provision ; see infra, p. 536.) # * •?.- ■::■ -Y- § 57. "SMienever foreign ships are within British jurisdic- Foreign ship tion, the Regulations for preventing collision contained in in British Table (C) in the Schedule to this Act. or such other Regula- jurisdiction to tions for preventing collision as are for the time being in T?ltuHtion° force under this Act, and all jirovisions of this Act relating j^ Tabic (C) to such Regulations, or otherwise relating to collisions, shall iu Schediile. apply to such foreign ships ; and in any cases arising in any British Coiirt of Justice concerning matters happening within British jurisdiction, foreign ships shall, so far as regards such 534 ArrENDix. Regulations where adopted by a foreign country, may be applied to its ships on the high seas. Ships of foreign countries adopting the rules for measurement of tonnage need not be re -measured in tliis coimtry. Regulations and provisions, be treated as if tliey were British ships. § 58. Whenever it is made to appear to Her Majesty that the Government of any foreign country is willing that the Regulations for preventing colHsion contained in Table (C) in the Schedule to this Act, or such other Regulations for preventing collision as are for the time being in force under this Act, or any of the said Regulations, or any provisions of this Act relating to collisions, shoidd apply to the ships of such countrv when bevond the limits of British iurisdiction, Her INIajesty may, by Order in Council, direct that such Regulations, and all provisions of this Act which relate to such Regulations, and all such other provisions as aforesaid, shall apply to the ships of tlie said foreign country, whether within British jurisdiction or not. * « § 60. AVhenever it is made to appear to Her Majesty that the rules concerning the measurement of tonnage of merchant ships for the time being in force under the principal Act (c) have been adopted by the Government of any foreign country, and are in force in that country, it shall be lawful for Her Majesty, by Order in Council, to direct that the ships of such foreign country shall be deemed to be of the tonnage denoted in their certificates of registry or other national papers ; and thereupon it shall no longer be necessary for such ships to be re-measured in any port or place in Her Majesty's dominions, but such ships shall be deemed to be of the tonnage denoted in the certificates of registry or other papers, in the same manner, to the same extent, and for the same purposes in, to, and for which the tonnage denoted in the certificates of registry of British ships is deemed to be the tonnage of such ships. -AT- *• * * * The Schedule referred to in this Act — Table (C). The Regulations contained in this Schedule, which, with the exception of some verbal errors, were identical with those of January, 1863, were repealed by an Order in Council of the 9th January, 1863, and lay the Bame Order in Council other Regulations were enacted in their place. The Regulations of 1863 remained in force until the 1st of September, 1880, on which day the Regulations enacted by Order in Council of the 14th of August, 187'J, came into force. By the same Order the Regula- tions of 1863 are repealed as from that day. The Regulations of 1884 came into force on the 1st of September, 1884 (as to British ships), and those of 1880 were repealed as from that date : see Orders in Council, 11th August, 1884, London Gazette, 19th and 22nd August, 1884. ((■) 17 & 18 Vict. c. 104. LEGISLATION AS TO rOlJ.ISTONS, The Legislation as to Collisions prior to 25 & 26 Vict. c. 63, was as follows :- — In 1840 tho London Trinity House issued the following rule (dated 30tb. October, 1810), which, though not liaving the force of law, was recognized as embodying tho custom of sea- men (see 1 W. Rob. 488 for tho rule) : — "Whereas tho recognized rule for sailing vessels is that those having tho wind fair shall give way to those on a wind ; that when both are going by tho wind the vessel on the starboard tack shall keep her wind, and the oiio on tlic larl)oard tack bear up, thereby passing each other on the larboard hand ; that wlien both vessels have tlu; wind large or abeam and meet, they sliall pass each otlier in tho same way on the larboard hand ; to effect which two last-mentioned objects, the helm must be put to port ; and as steam vessels may be considered in the light of vessels navigating with a fair wind, and shoidd give way to sailing vessels on a wind on either side, it becomes only necessary to provide a rule for their observance when meeting other steamers or sailing vessels going large ; when steam vessels on ditferent courses must unavoidably or necessarily cross so near that by continuing their respective courses there woidd be a risk of coming in collision, each vessel shall put her helm to port so as always to pass on the larboard side of each other. This was followed by 9 & 10 Vict. c. 100, s. 9 : Every steam vessel, when meeting or passing any other steam vessel, shall pass as far as may be safe on the port side of such other vessel, and every steam vessel navigating any river or narrow channel shall keep, as far as practicable, to that side of the fairway or mid-channel of such river or channel which lies on the starboard side of such vessel, due re- gard being had to the tide, and to the position of each vessel in such tide ; and the master or other person having tho charge of any such steam vessel and neglecting to observe these Regulations, or either of them, shall for each and every instance of neglect forfeit and pay a sum not exceeding fifty pounds. This was followed by 14 & 15 Vict. c. 79, s. 27: Whenever any vessel proceeding in one direction meets a vessel pro- ceeding in another direction, and the master or other person having charge of either such vessel perceives that if both vessels continue their respective courses they will pass so near as to involve any risk of a col- lision, he shall put the helm of his vessel to port, so as to pass on the port side of the other vessel, due regard being had to the tide and to the position of each vessel with respect to tho dangers of the channel, and, as regards sailing vessels, to the keeping of each vessel tinder com- mand ; and th" master of any steam vessel navigating any river or nar- row channel shall keep as far as is practicable to that side of the fairway or mid-channel thereof which lies on the starboard side of such vessel ; and if tho master or other person having charge of any steam vessel neglect to observe these Regulations or either of them, he shall for every such offence be liable to a penalty not exceeding fifty pounds. Then came 17 & 18 Vict. c. 104, ss. 296, 297 : § 296. Whenever any ship, whether a steam or sailing ship proceeding in one direction, meets another ship, whether a steam or sailing ship, proceeding in another direction, so that if both ships were to continue 0:J5 536 APPENDIX. their respective courses they would pass so near as to involve any risk of a collision, the helms of both ships shall be put to port so as to pass on the port side of each other, and this rule shall be obeyed by all steamships and by all sailing ships, whether on the port or starboard tack, and whether close-haiiled or not, unless the circumstances of the case are such as to render a departure from the rule necessary in order to avoid immediate danger, and subject also to proviso that due regard shall be had to the dangers of navigation, and, as regards sailing ships on the starboard tack close-hauled, to the keeping of ships under command. § 297. Every steamship when, navigating any narrow channel shall, whenever it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such steamship. All these enactments have been repealed, and the only Act upon the subject now in force is 25 & 26 Vict. c. 63, above stated. Duties of master in case of collision. Liability for infringement of Regulations in case of collision. 36 & 37 Vict. c. 85. § 16. In every case of collision between two vessels it shall be the duty of the master or person in charge of each vessel, if and so far as he can do so without danger to his own vessel, crew, and passengers (if any), to stay by the other vessel until he has ascertained that she has no need of further assistance, and to render to the other vessel, her master, crew, and pas- sengers (if any) such assistance as may be practicable and as may be necessary in order to save them from any danger caused by the collision ; and also to give to the master or person in charge of the other vessel the name of his own vessel and of her port of registry, or of the port or place to which she belongs, and also the names of the ports and places from which and to which she is bound. If he fails to do so, and no reasonable cause for such f ailm-e is shown, the collision shall, in the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default. Every master or person in charge of a British vessel who fails without reasonable cause to render such assistance or give such assistance as aforesaid shall be deemed guilty of a misdemeanour, and if he is a certificated officer, an inquiry into his conduct may be held, and his certificate may be can- celled or suspended. § 17. If in any case of collision it is proved to the Court before which the case is tried that any of the Regulations for preventing collision contained in or made under the Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such liegulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the Regulation necessary. ( 587 ) THE REGULATIONS FOR PREVENTING COLLISIONS AT SEA (.4 Art. 1. In tlio followiiij,^ rules ever}' steamship wliidi is under sail and not under steam is to be considered a sailing ship ; and every steamship which is under steam, whether under sail or not, is to be considered a ship under steam. Rides concerning Lights. Ai't. 2. The lights mentioned in the following articles, numbered 3, 4, 5, 6, 7, 8, 9, 10, and 11, and no others, shall be carried in all weathers, from sunset to sunrise. Art. 3. A sea-going steamship when under way shall carry — (a.) On, or in front of, the foremast, at a height above the hull of not less than 20 feet, and if the breadth of the ship exceeds 20 feet then at a height above the hull not less than such breadth, a bright white bght, so constructed as to show an uniform and unbroken light over an arc of the horizon of 20 points of the compass, so fixed as to throw the light 10 points on ouch side of the ship, viz., from right ahead to 2 points abaft the beam on either side ; and of such a cha- racter as to be A'isible on a dark night, with a clear atmosphere, at a distance of at least five miles : (b.) On the starboard side, a green light, so ct)nstructed as to show an uniform and unbroken light over an arc of the horizon of 10 points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard 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. (c.) On the port side, a red light, so constructed as to show an uniform and unbroken light over an arc of the horizon of 10 points of the compass, so fixed as to throw the light from right ahead to 2 points abaft the beam on the port side, and of such a character as to be visible on a dark night, with a clear atmo- sphere, at a distance of at least two miles. (x) Of 1884, 588 APPENDIX. (d.) The said green and red side lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow. Art. 4. A steamship, when towing another ship, shall, in addition to her side lights, carry two bright white lights in a vertical line one over the other, not less than three feet apart, so as to distinguish her from other steamships. Each of these lights shall be of the same construction and character, and shall be carried in the same position as the white light which other steamships are required to carry. Art. 5. (a.) A ship, whether a steamship or a sailing ship, which from any accident is not under command, shall at night carry, in the same position as the white light which steam- ships are required to carry, and, if a steamship, in place of that light, three red lights in globular lanterns, each not less than ten inches in diameter, in a vertical line one over the other, not less than three feet apart, 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 shall by day carry in a vertical line, one over the other, not less than three feet apart, in front of but not lower than her foremast head, three black balls or shapes each two feet in diameter. (b.) A ship, whether a steamship or a sailing ship, employed in laying or in picking up a telegraph cable, shall at night carry in the same position as the white light which steam- ships are required to carry, and, if a steamship, in place of that light, three lights in globular lanterns each not less than ten inches in diameter, in a vertical line over one another, not less than six feet apart ; the highest and lowest of these lights shall be red, and the middle light shall be white, and they shall be of such a character that the red lights shall be visible at the same distance as the white light. By day she shall carry in a vertical line one over the other, not less than six feet apart, in front of but not lower than her foremast head, three shapes not less than two feet in diameter, of which the top and bottom shall be globular in shape and red in colour, and the middle one diamond in shape, and white («). (c.) The ships referred to in this Article, when not making any way through the water, shall not carry the side lights, but when making way shall carry them. (d.) The lights and shapes required to be shown by this Article are to be taken by other ships as signals that the ship showing them is not under command, and cannot therefore get out of the way. («) See 48 & 49 Vict. c. 49, s. 5. THE KEGULATIONS OK 1X84. 539 The signals to be made by ships in distress and requiring assistance are contained in Art. 27. Art. 6. A sailing ship under way, or being towed, shall carry the same liglits as are provided by Art. 3 for a steam- ship under way with the exception of the white light, wliich she shall never carry. Art. 7. Whenever, as in the case of small vessels during bad weather, the green and red side lights cannot be ii.xed, these lights shall be kept on deck, on their respective sides of the vessel, ready for use ; and sluill, on the approach of or to other vessels, be exhibited on their respective sides in sufficient time to prevent collision, in such manner as to make them most visible, and so that the green light shall not be seen on the port .side, nor the red light on the starboard side. To make the use of these portable lights more certain and easy, the lanterns containing them shall each be painted out- side with the colour of the light they respectively contain, and shall be providi'd with proper screens. Art. 8. A ship, whether a steamship or a sailing ship, when at anchor shall carry, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light, in a globular lantern of not less than eight inches in diameter, and so constructed as to show a clear uniform and unbroken light visible all round the horizon at a distance of at least one mile. Art. 9. A pilot vessel, when engaged on her station on pilotage duty, shall not carry the lights required for other vessels, but shall carry a white light at the masthead, visible all round the horizon, and shall also exhibit a flare-up light or flare-up lights at short intervals, -which shall never exceed fifteen minutes. A pilot vessel, when not engaged on her station on pilotage duty, shall carry lights similar to those of other ships. Art. 10. Open boats and fishing vessels of less than twenty tons net registered tonnage, when under way and when not having their nets, trawls, dredges or lines in the water, shall iu)t be obliged to carry the coloured side-lights; but every such boat and vessel shall in Vivn thereof have ready at hand a lantern with a green glass on the one side, and a red glass on the other side, and, on approaching to or being approached by another vessel, such lantern shall bo exhibited in sufficient time to prevent collision, so that the green light shall not be seen on the port side nor the red light on the starboard side. The following portion of this Article appHes only to fishing vessels and boats when in the sea ofl' the coast of Europe lying north of Cape Finisterre : — (a.) All fishing vessels and fishing boats of twenty tons net registered tonnage or upwards -when under way and 540 APPENDIX. wLen not required by tlio following regulations in this Article to carry and show the lights therein named, shall carry and show the same lights as other vessels under way. (b.) All vessels when engaged in fishing with drift nets shall exhibit two white lights from any part of the vessel where they can be best seen. Such lights shall be placed so that the vertical distance between them shall be not less than six feet and not more than ten feet ; and so that the horizontal distance between them measured in a line with the keel of the vessel shall be not less than five feet and not more than ten feet. The lower of these two lights shall be the more forward, and both of them shall be of such a character, and contained in lanterns of such construction as to show all round the horizon on a dark night 'wuth a clear atmosphere, for a distance of not less than three miles. (c.) A vessel employed in line fishing with her lines out shall carry the same lights as a vessel when engaged in fishing with drift nets. (d ) If a vessel when fishing becomes stationary in conse- quence of her gear getting fast to a rock or other obstruction, she shall show the light and make the fog signal for a vessel at anchor. (e.) Pishing vessels and open boats may at any time use a flare-up in addition to the lights which they are by this Article required to carry and show. All flare-up lights exhibited by a vessel when trawling, dredging, or fishing with any kind of drag net shall be shown at the after part of the vessel, excepting that, if the vessel is hanging by the stern to her trawl, dredge or drag net, they shall be exhibited from the bow. (f.) Every fishing vessel and every open boat when at anchor between sunset and sunrise shall exhibit a white light visible all round the horizon at a dis- tance of at least one mile. (g.) In fog, mist or falling snow, a drift net vessel attached to her nets and a vessel when trawling, dredging, or fishing with any kind of drag net, and a vessel em- ployed in line fishing with her lines out, shall at intervals of not more than two minutes make a blast with her fog-horn and ring her bell alternately (^). Art. 11. A ship which is being overtaken by another shall {b) Article 10 of the Regulations Council of 30tli December, 1884, of 1880, applicable to certain foreign as to British trawlers' lights in the fishermen and to British fishermen seas north of FinisteiTC, are set in certain waters, and an Order in out below, p. ;j44. THE REGULATIONS OF 1884. 041 show from her stern to such last-mentioned ship a white light or a flare-up light. Sound Signals for Fog, Sfc. Art. 12. A steamship shall be provided witli a steam whistle or other efficient steam sound signal, so placed that the sound may not be intercepted by any obstructions, and with an effi- cient fog-liorn to be sounded by a bellows or other mechanical means, and also with an efficient bell (e). A saiHng ship shall be provided with a similar fog-horn and bell. In fog, mist or falling snow, wlu'tlior by day or night, the signals described in this Article shall be used as follows ; that is to say, (a.) A steamship under way shall make with her steam- whistle, or other steam sound signal, at intervals of not more than two minutes, a prolonged blast, (b.) A sailing ship under way shall make with her fog-horn, at intervals of not more than two minutes, when on the starboard tack one blast, when on the port tack two blasts in succession, and when with the wind abaft the beam three blasts in succession, (c.) A steamship and a sailing-ship when not under way shall, at intervals of not more than two minutes, ring the bell. Speed of Ships to be Moderate in Fog, Sfc. Art. 13. Every ship, whether a sailing ship or steam-ship, shall, in a fog, mist or falling snow, go at a moderate speed. Steering and Sailing Rules. Art. 14. "Wlien two sailing ships are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other, as follows, viz. : — (a.) A ship which is running free shall keep out of the way of a ship which is close-hauled, (b.) A ship which is close-liauled on the port tack shall keep out of the way of a ship which is close-hauled on the starboard tack, (c.) When both are running free with the wind on different sides, the ship which has the wind on the port side shall keep out of the way of the other, (d.) When both are running free with tlio wind on the (c) The followinj^ note is ap- tions require a bell to be used a ponded to the Order in Council : drum will be substituted on board "In all cases where the Eesjula- Turkisli vessels." o42 APPENDIX. same side, the sliip wliicli is to windward shall keep out of the way of the ship which is to leeward. (e.) A ship which has the wind aft shall keep out of the way of the other ship. Art. 15. If two ships under steam are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other. This Article only applies to cases where ships are meeting end on, or nearly end on, in such a manner as to involve risk of collision, and does not apply to two ships which must, if both keep on their respective courses, pass clear of each other. The only cases to which it does apply are when each of the two ships is end on, or nearly end on, to the other ; in other words, to cases in which, by day, each ship sees the masts of the other in a line, or nearly in a line, with her own ; and, by night, to cases in which each ship is in such a position as to see both the side lights of the other. It does not apply by day, to cases in which a ship sees another ahead crossing her own course ; or by night, to cases where the red light of one ship is opposed to the red light of the other, or where the green light of one ship is opposed to the green light of the other, or where a red light without a green light, or a green light without a red light, is seen ahead, or where both green and red lights are seen anywhere but ahead. Art. 1 6. If two ships under steam are crossing so as to involve risk of collision, the ship which has the other on her own starboard side shall keep out of the way of the other. Art. 17. If two ships, one of which is a sailing-ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship. Art. 18. Every steamship when approaching another ship so as to involve risk of collision shall slacken her speed, or stop and reverse, if necessary. Ai't. 19. In taking any course authorized or required by these Regulations a steamship under way may indicate that course to any other ship which she has in sight by the fol- lowing signals on her steam whistle, viz. : — One short blast to mean " I am directing my course to star- board." Two short blasts to mean "I am directing my course to port." Three short blasts to mean "I am going full speed astern." The use of thsc signals is optional ; but if they are used, Tin; RKGri.AiioNs of 1 a gnxm light so constructed as to show an imbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right alicad to two points abaft the beam on the starboard side, and of such a character as to be visible at least two miles. (c) On the \nn-t side* a red light so constructed as to show an unbroken light over an arc of the horizon of ton points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles. (d) The said green and red lights shall be fitted with in- board screens projecting at least three feet forward from tlie light, so as to prevent these lights from being seen across the bow. (e) A steam vessel when under way may carry an addi- tional white light similar in c(mstr action to tlie light mentioned in sub-division (a). These two liglits shall be so placed in line with tlie keel that one shall be at least fifteen feet higher than the other, and in such a position with reference to each other that the lower light shall be forward of the upper one. The vertical distance between these lights shall be less than the horizontal distance. Art. 3. A steam vessel, when towing another vessel, shall, in addition to her side lights, carry two bright white lights in a vertical line one over the other, not less than six feet apart, and when towing more than one vessel shall carry an ailditional bright white light six feet above or below such lights, if the length of the tow, measuring from the stern of the towing-vessel to the stern of the last vessel towed, exceeds 600 feet. Each of these lights shall be of the same con- struction and character, and sliall bo carried in the same position as the white liglit mentioned in Article 2 (a), except- ing the additional light, which may be carried at a height of not less than fourteen feet above the hull. Such steam vessel may carry a small white light abaft the funnel or aftermast for the vessel towed to steered by, but such light shall not be visible forward of the beam. Art. 4. — (a) A vessel which, from any accident, is not under command .shall carry at the .same licight as the white light 5j0 appendix. meutloncd in Article 2 (a) wlieru they can best be seen, and, if a steam vessel, in lien of that light, two red lights m a vertical line one over the other, not less than six feet apart, and of such a character as to be visible all round the horizon at a distance of at least two miles ; and shall by day carry in a vertical line one over the other, not less than six feet apart, where they can best be seen, two black balls or shapes, each two feet in diameter. (b) A vessel employed in laying or in picking up a telegraph cable shall carry in the same position as the white light mentioned in Article 2 (a), and, if a steam vessel, in lieu of that light, three lights in a vertical line one over the other, not less than six feet apart. The highest and lowest of these lights shall be red, and the middle light shall be white, and they shall be of such a character as to be visible all round the horizon at a distance of at least two miles. By day she shall carry in a vertical line one over the other, not less than six feet apart, where they can best be seen, three shapes not less than two feet in diameter, of which the highest and lowest shall be globular in shape and red in colour, and the middle one diamond in shape and white. (c) The vessels referred to in this Article, when not making -way through the water, shall not carry the sidelights, but when making way shall carry them. (d) The lights and shapes required to be shown by this Article are to be taken by other vessels as signals that the vessel showing them is not under command, and cannot there- fore get out of the way. These signals are not signals of vessels in distress and requiring assistance. Such signals are contained in Article 31. Art. 5. A saibng vessel xmder way, and any vessel being towed, shall carry the same lights as are prescribed by Article 2 for a steam-vessel under way, with the exception of the white lights mentioned therein, which they shall never carry. Art. 6. Whenever, as in the case of small vessels, under ■way during bad weather, the green and red side lights cannot be fixed, these lights shall be kept at hand, lighted and ready for use ; and shall on the approach of or to other vessels, be exhibited on their resj)ective sides in sufficient time to prevent collision, in such a manner as to make them most visible, and so that the green light shall not be seen on the port side, nor the red light on the starboard side, nor, if practicable, more than two points abaft the beam on their respective sides. To make the use of these portable lights more certain and easy, the lanterns containing them shall each be painted out- side with the colour of the light they respectively contain, and shall be provided with proper screens. AVASHIXGTON (PUOPOSEl)) RKGUI.ATIOXS. 551 Art. 7. Steam-vossols of less tliau forty and vessels under oars or sails of less than twenty tons gross tonnage respec- tively, when underway shall not be obliged to carry the lights mentioned in Artich' 2, (a), (b), and (c) ; but if they do not- carry them they sliall be provided with the foUowiiig lights : 1. Steam-vessels of less than forty tons shall carry : (a) In the fore part of the vessel, or on or in front of the funnel, where it can best be seen, and at a height above the gunwale of not less than nine feet, a bright white light constructed and fixed as prescribed in Article 2 (a), and of such a character as to be visible at a distance of at least two miles. (b) Green and red side lights constructed and fixed as juTscribed in Article 2, (b) and (c), and of such a character as to be visible at a distance of at least one mile, or a combined lantern showing a green light and a red light from right ahead to two points abaft the beam on their respective sides. ISuch lantern shall be carried not less than three feet below the white light. 2. Small steam-boats, such as are carried by sea-going vessels, may carr^' the white light at a less heiglit than nine feet above the gunwale, but it shall be carried above the combined lantern mentioned in sub-divi- sion 1 (b). 3. Vessels under oars or sails of less than twenty tons shall have ready at hand a lantern with a green glass on one side and a red glass on the other, which, on the approach of or to other vessels, shall be exhibited in sufficient time to prevent collision, so tliat the green light shall not be seen on the port side nor the red light on the starboard side. The vessels referred to in this Article shall not be obliged to carry the lights prescribed by Ai-ticle 4 (a) and Article 11, last paragraph. Art. 8. Pilot vessels, when engaged on their station on pilotage duty, shall not show the lights required for other vessels, but shall carry a white light at the mast-head, visible all round the horizon, and shall also exhibit a flare-up light or flare-up lights at short intervals, which shall liever exceed fifteen minutes. On the near approach of or to other vessels they shall have their side lights lighted ready for use, and shall flash or show them at short intervals to indicate the direction in which they are heading, but the green light shall not be shown on the port side, nor the red light on the starboard side. A pilot vessel of such a class as to be obliged to go along- /)52 APPENDIX. side of a vessel to put a pilot on board may stow the "white light instead of carrying it at the masthead, and may instead of the coloured lights alDOve mentioned have at hand ready for use a lantern with a green glass on the one side and a red glass on the other, to be used as prescribed above. Pilot vessels -when not engaged on their stations on pilotage duty shall carry lights similar to those of other vessels of their tonnage. Art. 9. Fishing vessels and fishing boats, when under way and when not required by this Article to carry or show the lights therein named, shall carry or show the lights prescribed for vessels of their tonnage under way. (a) Vessels and boats when fishing with drift nets shall exhibit two white lights from any part of the vessel where they can best be seen. Such lights shall be placed so that the vertical distance between them shall be not less than six feet and not more than ten feet, and so that the horizontal distance between them, measured in a line with the keel, shall be not less than five feet and not more than ten feet. The lower of these two lights shall be the more forward, and both of them shall be of such a character as to show aU round the horizon, and to be visible at a distance of not less than three miles. (b) Vessels when engaged in trawling, by which is meant the dragging of an apparatus along the bottom of the sea — 1 . If steam-vessels, shall carry in the same position as the white light mentioned in Article 2 (a), a tri- coloured lantern, so constructed and fixed as to show a white light from right ahead to two points on each bow, and a gi-een light and a red light over an arc of the horizon from two points on either bow to two points abaft the beam on the starboard and port side respectively ; and not less than six nor more than twelve feet below the tricoloured lantern a a white light in a lantern, so constructed as to show a clear, uniform, and unbroken light all round the horizon. 2. If sailing vessels of seven tons gross tonnage and iipwards, shall carry a white liglit in a lantern, so constructed as to show a clear, uniform, and un- broken light all round the horizon, and shall be provided with a sufiiciont supply of red pyrotechnic lights, which shall each burn for at least thirty seconds, and shall be shown on the approach of or to other vessels in sufficient time to prevent collision. WASHINGTON (PROPOSE!)) REGULATIONS. ;j/33 In the ^Mediterranean Sea tlio vessels referred to in siib- divisicjn (b) 2 may use a flare-up light in lieu of a pyrotechnic li<^ht. All lights menti(nied in sub-division (b), (1) and (2), shall be visible at a distance of at least two miles. 3. If sailing-vessels of less than seven tons gross tonnage, shall not be obliged to carry the white light mentioned in sub-division (b) 2 of this Article ; but if they do not carry such liglit. tliey shall have at hand, ready for use, a lantern showing a bright white light, wliicli shall, on the approach of or to other vessels, be exhibited whore it can best be seen in sufficient time to prevent collision ; and they shall also show a red pyrotechnic light, as prescribed in sub-division (b) (2), or in lieu thereof a flare-up light. (c) Vessels and boats when line fishing with their lines out and attached to their lines, and when not at anchor or stationary, shall carry the same lights as vessels fishing with drift nets. (d) Fishing vessels and fishing boats may at any time use a flare-up light in addition to the lights which they are by this Article required to carry and show. All flare-up lights exhibited by a vessel when trawling or fishing with any kind of drag net shall be shown at the alter part of the vessel, excepting that, if the vessel is hanging by the stern to her fishing gear, they shall be exhibited from the boAv. (e) Every fishing vessel and every boat when at anchor shall exhibit a white light visible all round the horizon at a distance of at least one mile. (f) If a vessel or boat when fishing becomes stationary in consequence of her gear getting fast to a rock or other obstruction, she shall show the light and make the fog signal prescribed for a vessel at anchor, respectively. {See Article 15 (d), (e) a7id last paragraph.) (g) In fog, mist, falling snow, or heavy rain-storms, drift net vessels attached to their nets, and vessels when trawling, dredging, or fishing with an}- kind of drag net, and vessels line fishing with their lines out, shall, if of twenty tons gross tonnage or upwards respectively, at intervals of not more th;in one minute, make a blast ; if steam-vessels with the whistle or siren, and if sailing vessels with the fog horn, each blast to be followed by ringing the bell, (h) Sailing vessels or boats fishing with nets or lines or 554 Ari'EXDix. trawls, wlien Tinder way, shall in day time indicate their occupation to an ajiproaching vessel by dis- jjlaying a basket or other efficient signal where it can best be seen. The vessels referred to in this Article shall not be obliged to carry the lights prescribed by Article 4 (a) and Article 1 1 , last paragraph. Art. 10. A vessel which is being overtaken by another shall show from her stern to such last-mentioned vessel a white liglit or a flare-up light. The white light required to be shown by this Article may be fixed and carried in a lantern ; but in such case the lantern shall be so constructed, fitted, and screened that it shall throw an unbroken light over an arc of the horizon of twelve points of the comj)ass, viz. for six points from right aft on each side of the vessel, so as to be visible at a distance of at least one mile. Such light shall be carried as nearly as practicable on the same level as the side lights. Art. 11. A vessel under 150 feet in length, when at anchor, shall carry forward where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern, so constructed as to show a clear, uniform, and un- broken Kght visible all round the horizon at a distance of at least one mile. A vessel of 150 feet or upwards in length, when at anchor, shall carry in the forward part of the vessel, at a height of not less than twenty and not exceeding forty feet above the hull, one such light, and at or near the stern of the vessel, and at such a height that it shall not be less than fifteen feet lower than the forward light another such light. The length of a vessel shall be deemed to be the length appearing in her certificate of registry. A vessel aground in or near a fairway shall carry the above light or lights, and the two red lights prescribed by Art. 4 (a). Art. 12. Every vessel may, if necessary in order to attract attention, in addition to the lights which she is by these Eules required to carry, show a flare-up light, or use a de- tonating signal that cannot be mistaken for a distress signal. Art. 13. Nothing in these rules shall interfere with the operation of any special rules made by the Government of any nation with respect to additional station and signal lights for two or more ships of war, or for vessels sailing under convoy, or with the exhibition of recognition signals adopted by shipowners, which have been authorized by their respective Governments and duly registered and jjublished. Art. 14. A steam-vessel proceeding under sail only, but WASIlIKGrOX proposed) llEGULATIONS. 5'j5 liaving lier funnel iq), shall carry in day time furward, wIkto it (;an best be seen, ouo black ball or .sbaj^iu twu feet iu diameter. Sound Signals for Fog, ^r. Art. 15. All signals prescribed by this Article for vessels under way shall be given : (1) ]5y '^ steam vcanels^' on the whistle or siren; (2) By " sailing vessels and vessels toiced^^ on the fog horn. The words ^'prolonged hlast^^ used in this Article shall mean a blast of from four to six seconds' duration. A steam vessel shall be provided with an efficient whistle or siren sounded by steam or some substitute for steam, so placed that the sound may not be intercepted by any obstruc- tion, and with an efficient fog horn to be sounded by mechanical means, and also with an efficient bell(«). A sailing vessel of twenty tons gross tonnage or upwards shall be provided with a similar fog horn and bell. In fog, mist, falling snow, or heavy rain storms, whether by day or night, the signals described in this Article shall be used as follows, viz. : — (a) A steam vessel having way upon her shall sound at intervals of not more than two minutes a prolonged bjast. (b) A steam vessel under way, but stopped and having no way upon her, shall sound at intervals of not more than two minutes two prolonged blasts with an interval of about one second between them. (c) A sailing vessel under way shall sound at intervals of not more than one minute when on the starboard tack one blast, when on the port tack two blasts in succession, and when with the wind abaft the beam, three blasts in succession. (d) A vessel when at anchor shall at intervals of not more than one minute ring a bell rapidly for about five seconds. (e) A vessel at anchor at sea, when not in ordinary anchorage ground, and when in such a position as to be an obstruction to vessels imder way, shall sound, if a steam vessel, at intervals of not more than two minutes, two prolonged blasts with her whistle or siren, followed by ringing her bell ; or if a sailing vessel, at intervals of not nnu'e tlian one [a) In all eases where the Rules require a bell to be used, a drum mav be substituted on board Turkish vessels, or a gong where such articles are usetl on board small sea-going vessels. 556 APPENDIX. minute two blasts with her fog horn, followed by ringing her bell. (f) A vessel when towing shall, instead of the signals pre- scribed in sub-divisions (a) and (c) of this Article, at intervals of not more than two minutes, sound three blasts in succession, viz., one prolonged blast, followed by two short blasts. A vessel towed may give this signal, and she shall not give any other. (g) A steam vessel wisliing to indicate to another, "The way is off my vessel ; you may feel your way past me," may sound tliree blasts in succession, viz., short, Ions:, short, with intervals of about one second between them, (h) A vessel employed in laying or in picl- 24. (Orders of harbour master or assistant to be obeyed.) ^- * ■:;. n^ i:- 46. In case of damage being done to any of the company's (Caledonian Eailway Co.) works by vessels, rafts, or vehicles, the same shall be detained until satisfaction be made or suffi- cient security be found for payment. 51. (Owner or master to be liable for damage and disobedience by J} er sons on board.) THE CLYDE. The Clyde. Bye-laws of 6th August, 1889, made under 21 & 22 Vict. c. 149 (Local), and 50 Vict. sess. 2, c. 8 (Local). 1. (Vessels over sixty tons to have pilot.) 2. (In daytime one hand, at night and in fog two hands, on the look-out.) 3. (Steam vessel or dredger turning or tmable to heep out of the toay to sound four or more blasts or strokes of her bell ; there- upon the other vessel to keep out of the ivay.) 4. (Yards to be peaked; boivsprits and jibbooms run in or topped.) 5. (Anchors to be laid so as not to interfere ivith fairivay. Boivsprits and jibbooms of vessels aground to be rigged in.) 6. ( Vessels not to anchor or moor above Bowling, or inside the river ivalls.) 7. (Small boats prohibited in certain parts of the river.) 8. (Scows to have coamings eighteen inches high.) LOCAL RULES. 563 1 1 . (A I niyhtand in dense fog speed not to exceed four miles an Local rules hour.) ('file Clyde). ***** 14. When steam vessels proceeding in opposite directions are approacliing one another, each shall, when witliin fifty yards of the other, slow her engines, and each shall alter her course to starboard, so that each shall pass to the jiort side of the other. 15. When two steam vessels are proceeding in the same direction, hut with unequal speed, the slower vessel shall, when about to be overtaken, bo kept sufficiently to the left or port side of the channel as to leave a free passage for the faster vessel, and shall bo slowed, and, if necessary, the engines stopped, as soon as the faster vessel comes within fifty yards of her; and the engines of the faster vessel shall also be slowed, when within fifty yards of the slower vessel, until the latter shall bo passed ; and it shall bo sufficient intimation to the slower vessel of the faster vessel's purpose of passing her that the boll of the faster vessel be twice rung and her engine whistle bo twice sounded ; but the faster vessel shall not attempt to pass the slower until the latter shall have given her room to pass safely. Failing that being done, the person in charge of the faster vessel shall report the offence to the pilot board in order that such offence may be dealt with. Note. — The faster vessel should not claim to pass the slower at a narrow or otherwise difficult part of the river, and only when the course is free of other passing vessels. 1 6. A steam vessel meeting or overtaking any sailing vessel, or tug with sailing vessel or timber raft in tow, shall slow her engines when within fifty yards of such vessels, and shall continue slowing until she shall have passed the same ; and when about to pass any vessel aground or at anchor shall slow her engines at least 150 yards from such vessel, and so continue until she shall have passed the same. 17. Every vessel when being overtaken by another vessel after dark shall show from her stem a white light until the other vessel shall have passed. 18. Vessels coming out of dock shall signify the same by a prolonged blast of the steam whistle of not less than five seconds' duration, and in cases where a vessel is not under steam the tug boat in attendance shall make the same signal. 19. Every steam vessel under her own steam, crossing from one side of the river towards the other side, shall keep out of the way of vessels navigating up and down the river. 20. {Steamships to go dead slow past dredging machines, diriiig bells, and river tcorks.) oo2 564 APPENDIX. Local rales 21. (Steamships to no dead slow past notice boards to that (The tlyile\ effect.) 22, 61, and 102. (Stea77ishi])s to go dead slow in certain parts of the river.) 23. {Tugs not to tow vessels alongside or ahrcast of each other, except certain small craft ; tow not to exceed 160 yards in length.) 25, (Order of her thing of vessels arriving together at a ivharf.) 32. Every vessel when on tlie river shall conform to the Board of Trade Rules with regard to lights ; and every vessel moored to the bnoys shall, between snnset and sunrise, have a white light exhibited in a globular lantern of not less than eight inches in diameter, placed in a conspicuous situation, and raised at least twelve feet above the deck, so as to show a clear, uniform, and unbroken light all round the horizon. 33. (Sunken vessel to be lit by two red lights and a white light. A look-out man to be on board or in a boat, and to shoio red flags in daytime.) As to Launches. 34. (Two small boats to lie in the river 200 yards above and beloiv the launch; pilot of launch to show red flag ivlth '•''launch'''' in xohite letters five minutes before launch; the boats thereupon to show similar flags ; no craft in the river to j^^iss boats so signalling until launch is over ; if launcJi delayed, pilot to show rvh'ite flag and boats to withdraw their red flags ; twenty-four hours' notice of launch to be given to harbour -master ; delay of traffic by launch.) ■ * ' ■};• is- * * 110. (Horse boats and steam ferry boats to carry ivhite light twelve feet above the deck.) A code of rules dated 9th Febiiiary, 1859, confirmed on the 11th April, 1859, and made under 10 Vict. c. 27 (Local), and 21 & 22 Vict. c. 149 (Local), by the Clyde Pilot Board, contains the following directions : — 11. (Vessels not to anchor in the fairioay of the Firth.) 12. All vessels proj)elled by the power of steam, or sailing with a fair wind and falling in with vessels beating to wind- ward, shall alter their course in sufficient time to pass astern of the vessel so beating. All vessels beating to windward, and meeting on opj)osito tacks, shall avoid getting foul of each other by the vessel on the starboard tack keeping to the wind, and the vessel on the port tack bearing up so as to pass easily astern of the other — all under a penalty of bl. LOCAL RULES. 565 13. (^Steamship not to voce, or pass witJii)i fij'h/ yards of one Local niles ahead.) " ' ' * (The Clyde). 14. (Appears to require the lit/his described in the Regulations for Preventing Collisions at Sea, made under 25 ^' 26 I'ict. c. 63, to be carried.) COEK. The bye-laws and regulations of 9th June, 1869, for pi'cvcnting col- Cork, li-sious, in force at Cork (under 1 Geo. IV. c. 52, and the Cork Harbour Amendment Act, 180G), are substantially the same as the General Regu- lations. There are, however, some variations and additions, the principal of which are as follows: — The local rules are expressly made applicable to steam and sailing lighters; the fog-horn or bell is to be sounded once eveiy minute ; and there arc special provisions for speed when passing dredgers and other craft, and ft)r the navigation of rafts of timber. Kulcs 85, 89, 90, and 91, arc as follows: — 85. When any steam vessels moving in opposite directions shall approach each other, the masters shall respectively slow engines as soon as such vessels shall come within one hundred yards of each other, and shall cause the respective vessels to keep as near as they can towards the side of the river to the right or starboard, so as to afford all possible facility to each other to pass. 89. Every steam vessel, "when navigating any narrow channel, shall, Avhenever it is safe and practicable, keep to that side of the fairway or midchannel, which lies on the starboard side of such steam vessel. 90. No steam vessel shall race, or attempt or strive or race, the one against the other; nor shall any steam vessel attempt to come in the wake of another steam vessel between Horse- head and the sea, nor pass one proceeding in the same direc- tion, except at a safe distance ; and the slower moving vessel shall allow the faster moving vessel freely to pass. 91. The master, or other person in charge of steam vessels, shall not proceed at any greater speed than quarter speed in any part of the river west of the east end of Myrtle Hill Terrace. DUBLIN. Bye-laws made under the Dublin Port and Docks Act, 1869, and con- Dublin, finned on the 2nd December, 1884, provide that : — 1. {All vessels to navigate on the starboard side of midchannel.) 2. ( Vessels crossing to their wrung side do so at their own risk.) 566 APPENDIX. Local niles (Dublin). Holyhead. 3. (^Ovrrtahcn steamer to licep on starboard side and allow other vessel to pass.) 4. {Ships'' lights to he those of the Regulations for Preventing Collisions at Sea.) 5. {Ships at anchor to exhibit a white light not more than tic enty feet from deck; to ring bell in fog.) 6. {Steamships to go sloiv, quarter speed, or stop engines at certai?i places.) 8. (Ships not to anchor between Poolby Lighthouse and Custom House. GEANGEMOUTH. {See Careon Eivee.) HOLYHEAD. At Holyhead, by Regulations of the 1st December, 1877, issued by order of the Board of Trade, and signed by the harbour-master, ships are warned against bringing up outside the breakwater, or in the fairway, where they are in the track of packets ; if unavoidably brought up ia the faii'way masters are particularly requested to exhibit two riding lights, one at the peak and one forward ; when navigating the fairway at night vessels should bui-n a flare-up or bright light ; small vessels should come into the harbour of refuge and leave the outer anchorage for large ships ; vessels riding in the harbours or roadsteads are to exhibit the Regulation riding Ught ; vessels are not to enter the inner harbour at a high rate of speed, or endanger the packets alongside the jetties ; in bad weather vessels are to be securely anchored and made snug ; coming round the breakwater vessels are to go at reduced speed, as they are coming round a blind comer ; the mail packets burn a red flashing light when rounding the breakwater ; and when swinging and blocking the entrance the red flash light is burnt and fog-bell sounded ; when the harbour is clear a green flash light is burnt. HUMBEE. Humber. '^^'•^ following rules were made under the powers of 25 & 26 Vict. c. 63, by Order in Council of 8th February, 1890 («). They are to bo read in connection with ndes made by Order in Council of 7th March, 1887. An infringement of them brings a ship within the penalty of 35 & 36 Vict. c. 85, s. 17 ; The Ri2)on, 10 P. D. 65. I. All vessels, as well sailing vessels as steamers (except dumb-craft), while navigating, or anchored, or moored in the Eiver Humber, or in any part of the Eiver Ouse below the North Eastern Eailway bridge crossing the Eiver Ouse at or [a] See London Gazette, 1890, Vol. 1, p. 796. LOCAL RULES. 56'i near Hook, or in any part of tlio Uivor Tront, at or helow Local rules Gainsboruugli, shall observe and obey the " liej^^ulutious for (liii"'Li^-»'J- Preventing Collisions at Sea," set out in the first schedule annexed to an Order in Council made in pursuance of and for the time being in force under the Merchant Shipping Act Amendment Act, 18G2, or any statutory modification thereof, with the exceptions and additions made in the following Hulcs. II. All vessels as aforesaid when at anchor in the River Plumber, or in any part of the Eiver Ouse below the North Eastern Railway bridge crossing the River Ouse at or near Hook, or in any part of the River Trent at or below Gains- borough, shall, between sunset and sunrise, instead of tho light prescribed by Art. 8 of the said Regulations, exhibit from the forestay, or otherwise near the bow of tho vessel, where it can best be seen, 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 tho horizon at a distance of at least one mile ; and in addition thereto, all vessels having two or more masts shall exhibit another white light at double (a) tho height of the bow light, at tho main or mizen peak, or the boom topj^ing lift, or other position near the stern where it can best be seen. III. Dumb-craft shall, between sunset and sunrise, exhibit in tho forepart of the craft a white light behind an opal frosted or gi'ound colourless glass shade, and distinctly visible on all sides, not less in height above deck or above any cargo or other obstruction on the deck : — (1.) AVhen at anchor, than five feet; (2.) When being towed, than three feet ; and the sternmost of the craft towed shall also exhibit a white light at tho stern. IV. Every passenger feiTy steamer plying between Hull and New Holland while under way and in motion shall in all weathers, between sunset and sunrise, carry at the stern a bright white light so constructed as to show an unbroken and uniform light over an arc of the horizon of twelve points of the compass, so fixed as to throw tho light from right astern to six points on each side of the ship, and of such a character as to be visible on a dark night with a clear atmosphere at a distance of at least one mile. V. Every dredger moored in the River Humber or off any pier or quay shall, between sunset and sunrise, exhibit at the head a white light in a globular lantern of not less than eight (rt) This means not less than double ; twenty-five feet from the deck held to comply with the Kulc. T/ic Magncia, 15 P. D. 101. 568 APPENDIX. Local niles inclios in diameter, and a similar light at the stern, and in (Humber). addition thereto an amber light four feet above each of the said white lights, all the said lights to be so constructed as to show a clear, uniform, and unbroken light, visible at a distance of at least one mile. VI. Every vessel shall be navigated with care and caution, and at a speed and in a manner which shall not involve risk of collision by causing a swell, or endanger the safety of other vessels or moorings, or cause damage thereto, or to the river banks. Special care and caution shall be used in navigating such vessel where there is much traffic, and when passing vessels employed in dredging or removing sunken vessels or other obstructions. If the safety of any vessel or moorings is endangered, or damage is caused thereto, or to the river banks by a passing steam vessel, the onus shall lie upon the master or owner of such vessel to show that she was navigated with care and caution, and at such a speed and in manner directed by these liules. VII. {S/eams/ups approaching xoreck removing craft, or craft laying or removing buoys or drawing moorings, are to go dead sloiv 300 yards before reaching such craft and 100 yards after jjassing them.) VIII. Any vessel which, from tmavoidable circumstances, may be compelled to anchor in the fairway of the river, shall, with as little delay as may bo, remove to a proper roadstead, or otherwise proceed on her course. IX. In interjoreting these Rules the term "dumb-craft" shall include canal boats, mud-barges, and other barges, lighters, vessels "without masts," and vessels without either deck or mast, sloops, keels with their masts lowered, and rafts. The Rviles of Tth March, 1887 («) in connection with which the above rules are to be read, apjily (rule 1) to all vessels navigating or anchored or moored in the River Trent betw'een the Stone Bridge at Gainsborough and Trent Fall. Rules 2, 3, limit the number of vessels -which may be towed at one time. Rule 4 : Every vessel anchoring in the river shall have her anchor buoyed. Rule 5 : Vessels anchoring for the purpose of di'edging or fishing not to obstruct the navigable channel, nor to lie abreast of each other. Rule 6 : Vessels lying at works or wharves and waiting to load or discharge, or anchored for purposes of fishing, to have ropes made fast ashore. Rule 7 : No vessel, unless waiting to load or discharge cargo, to lie for more than forty-eight hours in any of the following places : — Mortar Bight, StockAvith or Ropery Bight, Jenny Hiuti Bight, Kelfield Upper Bight, lower part of Andrew's Wife's Reach (above Southfield drain), Dcrrythorpe or Althorpo Bight, Boggard Hall Bight between Buri'iugham Ferry andKeadby Bridge, Keadby Bridge to Keadby Lower Town End, upper part of Amoott's Hook Bight near Amcott's Sluice, (ff) London Gazette, 1887, Vol. I., p. 1440. LOCAL RULES. 569 lower part of Aincott's ITook and Neap Staith. Rules 8, 9 : Fishing Local rules vcs.-els liot to lie iu certain places, and not to exceed twenty tons. (HuuiLcr). Kule 10 : Any vessel anchored or moored so as to be an obstruction to navig-ation to be removed within eiglit hours after deliveiy of an order of the corporati(jn. Rule 11 : No vessel to lie or be moored at any jetty, staith, or landing jjlacc, so as to obstruct navigation. Rule 12 : All vessels at anchor and not moored to any wharf, staith, jetty, or the river bank to liave on board a competent person at all times. Rules 13, 14, provide for buoying and lighting landing-places and steps which are submerged at high water, and for slackening ferry chaius wheu not in actual use. MERSEY (SEA CHANNELS). 37 & 38 Vict. c. 52. An Act to make Berjxdations for Preventing Collisions in Sea Channels leadiiiy lo the River Mersey. Whereas it is expedient to make special regulations for Mersey (sea preventing collisions between vessels in the sea channels channels), leading to the Eiver Mersey. Be it enacted by the Uueen'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. Any general Eegulations for I'reventing Collisions at Sea for the time being in force under the provisions of the Merchant Shijiping Acts shall bo construed as if the following Eegulations were added thereto, that is to say — (1.) Every steamship, and every vessel in tow of any steam- ship, when navigating in the sea channels or ap- proaches to the Eiver Mersey, between the Eock Liglithouse and the furthest point seawards to which such sea channels or ai)proachcs respectivel}- are for the time being buoyed on both sides, shall, Avhenever it is safe and practicable, keep to that side of the fairway or mid- channel which lies on the starboard side of such steamship or vessel in tow. (2.) Every ship at anchor in the said sea channels or ap- proaches, within the limits aforesaid, shall carry the single white light i)rcscribed by Art. 7 of the General Eegulations (rt) for Preventing Collisions at Sea, made under the authority of the "Merchant Shipi)ing Amendment Act, 1862," at a heiglit not exceeding twenty feet above the hull, suspended from the fore- stay, or otherwise near the bow of the ship where it (rt) I.e., of 1863. 570 , APPENDIX. Local rules can be best seen ; and, in addition to tbe said liglit, (Mersey). all ships having two or more masts shall exhibit another similar white light, at double the height of the bow light, at the main or mizzen peak, or at the boom topping lift, or other position near the stern where it can be best seen, § 2. This Act shall not come into operation until the first day of November, 1874. MEESEY, EIVEE. Mersey River. The following rules were made pursuant to 25 & 26 Vict. c. 63, s. 32, by au Order iu CouncU of the 17th May, 1890 : — Rules concerning the lights or signals to he carried, and con- cerning the steps for avoiding collision to be taken by vessels navigating the River Mersey {a). 1 . Every vessel exceeding ten tons measurement, including river craft while navigating, or anchored or moored in any part of the Eiver Mersey, shall from and after the 17th day of May, 1890, observe and obey the " Eegulations for Pre- venting Collisions at Sea," made in pursuance of the Merchant Shipping Act Amendment Act, 1862, and which may from time to time be in force, with the exceptions and additions mentioned in the following rules. 2. Canal flats, and all other vessels without masts, whilst being towed, shall carry the lights prescribed for sailing vessels by Art. 6 of the said " Eegulations for Preventing Collisions at Sea." 3. In addition to the lights for a steam vessel towing another vessel prescribed by Art. 4 of the said Eegulations, such steam vessel shall carry a bright white light showing astern as a guiding light to the vessel or vessels being towed. 4. Every vessel when at anchor shall carry the white light prescribed by Art. 8 of the said Eegulations, at a height not exceeding twenty feet above the hull, suspended from the forestay, or otherwise near the bow where it may best be seen ; and in addition to the said light all vessels having two or more masts shall exhibit another similar white light at double the height of the bow light at the main or mizen peak, (a) The Eules of 1866 purported subject to the general Eegulations to apply to " the sea channels and as modified by 37 & 38 Vict. c. 62, approaches" to the Mersey. It ap- supra. pears that ships in these waters are LOCAL RULES. 571 or on tlio hoom topping lift, or other position near the stern, Local rules where it can ho Itest seen {b). (Mersey). 5. Every vessel, whether over or under ten tons net register, havi^^• on board any explosive except ships' aTiiiiiunition, shall also when at anclior exhibit a red light iu a globular lantern, not less than ten inches in diameter, over the forward white light prescribed by Art. H of the said Regulations. 6. Instead of the light prescribed by Art. 1 1 of the said Regulations, a bright white light shall bo shown continuously, between sunset and sunrise, in all weathers on board every vessel while under way and in motion, ^uch light shall bo of such a character as to be visible on a dark night, witli a clear atmosphere, at a distance of at least one mile ; it shall be so constructed as to sliow an uniform and unbroken light over an arc of the horizon of twelve points of the compass ; and it shall be so fixed as to throw the light right astern and for six points therefrom on each quarter of the vessel (c). 7. A vessel anchored to mark the position of a wreck or other obstruction shall carry iu all weathers, from sunset to sunrise, two bright white lights in globular lanterns of not less than eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light visible all round the horizon for at least one mile, which lights shall be placed horizontally on a cross yard on the foremast at a height not exceeding twenty feet above the hull, and twenty feet apart. And the said vessel shall carry in all weathers, between sun- rise and sunset, two black balls placed as hereinbefore ordered with regard to the lights afore-mentioned. OUSE, RIVEE. {See Humbek, supra.) SOLENT. By an Order in Coiuicil of the 3rd of May, 18S2, made under the Solent Solent. Nangation Act, 1S81, 4-1 & -15 Vint. c. '219 (Local), certain limits arc speci- fied for anchorage ground in the neighbourhood of Cowes and Ryde. (i) In The Lockslcy Hall, Ad. there being no peak halliards. Div., 28th March, 1887, Butt, J., (c) The corresponding rule of oth held that a light on the main January, 1881, occasioned the de- halliards forty feet forward of the cision in The Fire Queen, 12 P. D. tatfrail complied with a correspond- 1-17. ing rule (of 5th January, 1881) ; 572 APPENDIX. Local rules. SUEZ CANAL (a). Suez Caual. The substance of the Regulations for the navigation of the Suez Canal (of 1st Julj', 1878) is as follows : — The maximum speed is to be five- and-a-half knots. All ships over 100 tons are to take pilots ; "but the responsibility as regards the management of the ship devolves solely on the captain " ; j^ards are to be braced forward ; jibbooms to be in ; and a kedge ready to let go astern ; a boat is to be towed astern ; watch to be kept by day and night ; hands are to be stationed ready to let go hawsers ; navigation at night is at the captain's risk. Ships moored are to show a light forward and another aft ; otherwise the usual lights to be carried, except that on the approach of another ship two white lights are to be shown over the side on which the other is to pass ; whistles are to be blown on shij^s approaching and passing ; steam- sliips are to stop when the passage is not clear, and to reduce speed when passing craft. "Whenever a coUision ai^pears probable, no ship must hesitate to take the ground, and thus avoid colhsion. The expenses con- sequent upon a grounding under these circumstances shall be defrayed by the ship in fault." Vessels approaching are to reduce speed and hug the starboard side, if required to do so by the pilot ; vessels are not to over- take and pass others, except when necessary, and then only at sidings by the direction of the canal authorities. SUIE, BIVEE (WATEEEOED). Suir, River. Bye-laws of 28th November, 1887, made under the powers of 25 & 26 Vict. c. 63, s. 3'2 (i), apjjly to the river Siiir from Granagh Castle to the Old Bridge of Carrick, including the tributary streams known as Killo- teran or Mount Con grove Pill, Kilmeaden or Ph elan's Bridge Pill, Clodagh River or Portlaw Pill, Pouldrew Pill, Pilltown Pill or River, Lingawn River, and Ballylinch Channels. Riile 1 : All barges, lighters, and other river craft (except craft moored or at anchor at or opposite to Carrick-on-Suir Quay), "shall between sunset and sunrise, whether at anchor or under way, exhibit in the bows or on the mast an all-round white light of sufficient power to be distinctly visible on a dark night with a clear atmosphere at a distance of at least one mile." Rule 2 : The person in charge of any such craft " under way and showing the white light, shall dip said light repeatedly on the approach of any vessel or steamer in sufficient time to prevent a collision." Rule 3 : All steam tugs, steam barges, and seagoing vessels (except when moored or at anchor at or opposite to Carrick-on-Suir Quay) to carry and exhibit lights in accordance with the Sea Regulations. Rule 4 : Penalty 51. TEES, EIVEE. Tees River Bye-laws dated the 2nd May, 1887, made under the Tees Conservancy ' ' Act and the Harbours, Docks, and Piers Clauses Act, 1847, provide: — (3) owner and master, and also pilot, if ;iny, to be responsible for observance of bye-laws ; (5) ships to be moored under direction of harbour master, and (a) See Nautical Magazine, 1878, p. o72 ; as to compulsoiy pilotage, see The Guy Manticring, 7 P. D. 132. [h) SeeLondon Gazette, 1887, Vol. II., p. 6707. LOCAL RULES. 573 anchors to Ije buoyed ; (G) whips at anchor or moored to liavc sails furled, Local rules yards, davits, bowsprits, &c., to be peaked and riLrged in ; (7) anchors of (Tees), ships moored to bo inboard clear of f,'un\valo or hanf,'ing from hawse pipe ; (8) three ships only abreast at staiths, &c. ; (9) ships at staiths, kc, not to lay anchor in channel ; (10) ships not to lie betw(;en tiers ; (13) steam- ships to carry the Regulation lights, except that " in case of a steamship having no foremast it shall bo sufficient if the said white light {t/te mast- head light) bo at a lieight not less tliaii twelve feet above the hull, fixed on a staff not more than thirty feet from the stem ; and in the case of a steam vessel not exceeding twelve feet in breadth, it shall be sufficient if such light be at a height not less than six feet above the hull, fixed on a staff not more than twelve feet from the stem" ; (15) steamship in tow- er under sail and not under steam to carry side lights only ; ( 1 7) a " bright white light" to be shown from the stern of a ship being overtaken ; (18) ves- sels at anchor and also outside vessel of tier to exhibit riding light ; (19) open cargo and fishing craft and rafts to use the Regulation lantern with green and red slides ; (20) ships to obey liarbour-master. As to the navigation of the river, there are the following rules : — 21. Every vessel navigating the river shall keep the star- hoard side, so that the port-helm may always be applied to clear vessels proceeding in the opposite direction {a). 22. Every steam vessel when approaching another vessel on an opposite course or from an opposite direction shall, before approaching within 100 yards, slacken her speed, and keep as near as possible to tlie starboard side of the river, so as to afford the greatest facility for passing the approaching vessel {b). 23. Every steam or other vessel (and whether being towed or towing another vessel) must so approach the river from sea as to enter on that side of the channel reserved for their navigation. 24. All vessels when under way, requiring to pass over a part of the channel which is not within that portion reserved for their navigation, for the purpose of proceeding to or from landings, moorings, or other places, must take upon them- selves the responsibihty of doing so in safety with reference to the passing tralRc ; and any vessel continuing its navigation after reaching such landing, mooring, or other place, must again proceed to the side of the river specified as the proper side for its navigation, so soon as practical)lo, and take upon itself the responsibihty of doing so in safety, with respect to the passing trafFic. 25. Yessels crossing the river, and vessels turning, must take upon themselves the responsibility of doing so safely with reference to the passing traffic {b). {a) This does not mean that the ib) These Rules apply whenever vessel crossing the river is to bo two vessels navigating at all near liable whatever the fault of the the centre of the river are ap- other may be. The Thetford, Ad. proachnig one another, even though Div. 21st May, lbS7. in svich positions as to show one 574 APPENDIX. Local rules 26. No steam vessel shall at any time be navigated in any ^ ^^^^' part of the river at a higher rate of speed than a maximum rate of seven statute miles per hour over the ground (c). 27. Whenever there is a fog, no steam vessel shall be navi- gated in any part of the river at a higher rate of speed than, three miles per hour. 28. AVhen steam vessels are proceeding in the same direc- tion, but with unequal speed, the vessel which steams slowest shall, when overtaken, keej) sufficiently to that bank of the river which is on her own starboard side, and shall offer no obstruction whatever, by crossing the channel or otherwise, to the free passage of the faster vessel, and shall ease and, if necessary, stop the engine as soon as a faster vessel comes within 100 yards, and in like manner the faster vessel shall ease its engine when it comes within 100 yards of the slower vessel, until it has passed the vessel so overtaken ; and, that ignorance of the approach of the faster vessel may not be pleaded by the master of the slower vessel, it shall be suflB.- cient intimation of such approach if the steam-whistle of the faster vessel be three times sounded ; but no vessel overtaking any other vessel will be justified in passing such vessel at any of the points or turnings of the river, or at any dock entrance. 29. Every steam vessel other than a steam vessel employed in towing, meeting, or overtaking any sailing vessel or steam tug with sailing vessels in tow, shall ease its engines before arriving within 100 yards of, and until it shall have passed, the sailing vessel or steam tug and trains. Every steam tug and train, when meeting another vessel, shall, in proper time, put their helms to port, and, when overtaken, shall keej) suffi- ciently to the proper side of the river to allow the vessel over- taking them to pass. 30. All vessels towing in from sea with a long scope of tow- line must shorten the same on getting inside the river, and before reaching the Eston Wharf. The tow-line, when so shortened, must not exceed twenty- five fathoms in length. 31. Every steam tug or other steam vessel towing a vessel into the port which shall not already have a pilot on board, and whether showing a signal for a j)ilot or not, shall be bound to ease, or stop if necessary, to enable a pilot to board the vessel, unless the master thereof shall have previously another their green lights. Unless (r) An earlier rule, which did there is extreme necessity, they not state whether the speed was must both of them port. The Mari/ over the ground or through the Lohden, 6 Asp. M. C. 262, decided water, occasioned the decision in under the corresponding Rules 17 The R. L. Alston, 8 P. D. 5. and 18 of 1870. LOCAL RULEf?. 575 informed tlio master of the steam vessel that he did not intend Local rules to take a pilot. C^^^^)-- 32. No vessol shall be allowed to drift in any part of the river or harbour. Every vessel must bo properly navigated, or moored clear of the navigable cliannel. Vessels proceeding to any doclc, and arriving oil' the entrance of such duck before the signal for admission is hoisted, must keep on either sido of the navigable channel, and out of the fairway of the river or dock traiiic, until tlio signal is hoisted for their reception. 33. No steam tug or other steam vessel shall tow two or more vessels alongside each other, nor shall tow more than one raft of timber when such rafts exceed 150 feet in length or thirty feet in breadth. 34. A steam vessel shall not tow at one time more than six keels, wherries, or other boats, 35. (J'essels to be properly manned.) 36. Every steam vessel having any vessel or vessels in tow shall attend upon the vessel or vessels in tow until such vessel or vessels is or are properly moored or secured. 42. {Vessels Ukehj to be damaged by surge of passing craft may show red flag or red ligltt ; thereupon passing steam vessels to go dead slow whilst within 100 yards of tite signal.) 43. No steam vessel shall go more than a sj)eed of six statute miles per hour over the ground in that part of the river Tees between the Commissioners' Graving Dock and Eamlett's Bight ; nor at a greater speed than five statute miles per hour over the ground between Bamlett's Bight and Stockton Bridge. 44. {Steamships' engines to be stopped when within fifty yards of small boats coming alongside.) 45. ( Vessels approaching landing steps to ring bell or sound whistle.) THAMES. Rules and bye-laws for the navigation of the River Thames, made Thames, under the Thames Conservancy Acts, 1857 and 18G4, the Thames Navi- <;ation Act, 18GG, the Tliaracs Conservancy Act, 1867, and the Thames Navigation Act, 1870, and appi'oved by Order in Council of Februury 5th, 1872, proviort side to port side. The liicketts ported to round the point, and then {») 4 Asp. Mar. Law Cas. 4!)3 ; R. 252. followed in 'The Bcrrinqtoii and The (p) The Altyre, Ad. Div. 27th Ostrich, Ad. Div. 9th March, 1S83. Feb. 1885. (o) The Lad;/ TTodehou.ic, 2 T. L. (trued in a similar sense, referring to the time during which she is under the action of her helm by reason of tho point. The Margaret was taken to tho Ilouse of Lords, where the decision of the Court of Appeal was reversed and that of Butt, J., restored (x). The decision of tlie House of Lords (a) 6 P. D. 1.39, 145. (w) Fcr Brett, M.R., 9 V. D. 10. {() 9 r. 1). 17. (.<•) 9 Api). Cas. 87:i. 588 API'EN'DIX. Local rules proceeded upon the ground that, even assuming that the (Thames). construction ])hiced upon liiile 23 by the Court of Appeal was Rule '23. correct, and that 'lite Clan Sinclair had transgressed the rule, 3'et since the transgression of the rule did not contribute to the collision, and since The Manjaret could by ordinary care have avoided the collision, she (77/e Marcjaret) was alone in fault. In the House of Lords a point was raised as to the apijlication of Eule 23 which had not been raised in either of the Courts below. It was contended that the heading which precedes Eule 17 of the Thames Eules limits the application of Eule 23 to that part of the river which lies between Blackwall Point and Yantlet Creek ; and that. The Clan Sinclair being at the time of the collision above Blackwall Point, the rule (lid not apply to her. The contention of the api^ellants upon this point was not upheld. Eule 23, therefore, ajiplies to a vessel about to round Blackwall Point on her outward voyage, though she is above (to northward and westward of) a lino drawn from the Point to Bow Creek. As to the true construction of Eule 23, the Lords (Lords Blackburn, Watson and Fitzgerald) gave no decision. Lord ])lackburn dissented from the opinion expressed by Butt, J., that "the meaning of the rule was that the vessels which were in the straiglit, or nearl}- straight, reach, before they began to turn at all, were to wait there until all vessels that might be seen across the land coming in the opposite direc- tion had passed." The effect of that would, he thought, be very inconvenient and hamper the navigation of the river very mi ch. The fair meaning of the rule was, he suggested, " that you begin to round when there is so much curving and rounding of the river that the vessels going down the river begin to turn round the land; they then begin to round, and v\hen they have come so far down that the curving of the river ceases and they go straight, they then cease to round." He considered that the moutli of the South-West India Dock is above the place at which Eule 23 begins to apply. The direction in Eule 23 to ease and wait is a question of degree. It does not mean that the ship's way is to be stopped to the extent of losing control over her (?/) ; it means that she shall proceed at a slower pace than ordinary for the purpose mentioned in the rule (::). Rule 21. The eifect of Eule 24 has been recently discussed in two cases. In llie Schwann{a) it was held by Butt, J., to apply to a vessel, which having been at anchor with her head down [y) Per Lord Blackburn, 9 App. (~) Ptr Lord Watson, ibid. p. Cas. 880. 885. {ri) 6 Asp. M. C. 409. DECISIONS UPON THE THAMES RULES. 589 the river, was getting under way and turning witli ]ior liead Local rules athwart the tide fur the purpose of pursuing her voyage up ('fli:»i"ew). river oq the flood tide. la The River Dcrwent{h) it was held I^"le» 24, 25. by the Court of Appeal, that a vessel which had been pro- ceeding up river on a fljod tide, and on the soutli side of mid- channel, and was turning across the river witli her anchor dredging for the purpose of getting head to tide did not cease to be a crossing ship so long as she was moving towards the nortli shore. In the opinion of the maj(uity of the Court (Lindley and Lopes, L.JJ., agreeing with the Nautical As- sessors) a vessel becomes ''a crossed ship" as soon as she is as far across the river as she can go in safet}-, even though she is still angling athwart the stream; but Lord Esher, M. I{., expressed a contrary opinion on this point. When Eule 24 becomes applicable to a vessel, Rule 25 becomes applicable to vessels approaching her up or down river (c). The decisions in The Orwell, The Ostrich, The Indian Chief, The A(juadiHana, Perkins v. Ginycll, Golds))iitli v. Sluitcn/, The City of Delhi, The Rose of Knyland, The Lonij Newton, Jiolles v. Newell, Elmore v. Hunter, and The Skerryvore are noted above in connection with the rules to which they relate. TEENT. {See Humber.) TYNE. The river Tyne bye-laws of 1.5tli November, 1884, are made under the (Tyne). River Tyne Improvement Acts, and the Acts incorporated thercwitli. (See the Tyne Improvement Acts of ISoO, 1852, 1857, 1859, ISGl, 1865, and 1877 ; the Harbours, Docks, and Piei's Clauses Act, 1847.) They provide for (5) the mooring of vessels under the harbour-master's orders ; anchors not to be let go; (6) dismantling; (7) anchors to be on deck or hung from hawse-pipe ; (9) one vessel only to lie at a staith ; (10) vessels not to lie between tiers ; (11) steamers moored not to move engines. The rule as to steamships' lights {VI) is the same as Art. 3 of the Sea Regu- lations, except as to steamships without foremast, which may carry the masthead light on a staff, as in the Tees Rules {supra, p. 572) ; (13) steam- ships towing to carry a second light on the foremast or staff ; (14) steamships and sailing ships being towed and steamships under sail to carry side lights only; (15) stern light to be shown to overtaking ship ; ^IG) vessels at anchor, outside vessel of tier, and any other vessel (*) 6 Asp. M. C. 4C7. (e) See the cases last cited. 590 APPENDIX. Local rules so ordered by harbour master, to show riding light ; rafts and open boats (Tyne). to show either red and green side lights, or lantern with red and green slide ; (18) fog signals, as in the Sea Regulations. As to Navigation. 19. Every vessel under way shall, when proceeding seaward, be kept to the south of mid-channel, and when proceeding inward from sea or up the river, to the north of mid-channel, aud so that in either case such vessel shall, with a port helm, always be and be kept clear of any vessel proceeding in the opposite direction. 20. Every steam or other vessel (whether towing any other vessel or not, or being towed) shall, unless prevented by stress of weather, be brought into port to the north of mid-channel, and be taken out of port to the south of mid-channel {d), {e). 21. ( I'^essel necessarily on ivrony side of river not to obstruct other vessels ; to cross to right side as soo?i as possible (e).) 22. ( T^essel crossing or turning in the river not to cause ob- struction (e).) 23. When steam vessels proceeding in opposite directions are approaching each other they shall be kept on their proper sides, and, if necessary, speed shall be slackened, the vessel going against the tide in all cases giving way to the one going with the tide ; and when steam vessels are approaching each other so as to involve risk of collision, their helms shall be put to port, and, if necessary, their engines shall be stopped or reversed. 24. When any steam vessel (except a steam vessel when towing sailing vessels) is approaching any sailing vessel or steam-tug with sailing vessels in tow proceeding in the opposite direction, the speed of such steam vessel shall, if necessary, be slackened when it is within 30 yards of and until it shall have passed the sailing vessel or steam tug and towed vessels. 25. Sea-going steam vessels shall not be navigated in the port above the Low Lighthouse at a greater speed over the ground than six knots or seven statute miles per hour, whether going with or against the tide. 26. {T'cssels not to cause risk of collision.) 27. [>Stea7nship unable to keep out oj' the ivay of sailing ship to {'/) This means that a vessel eoniing in from sea must not cross the entrance close to the pier heads. The Hnrvent, 11 P. D. 14. (e) These rules do not make a crossing vessel responsible, what- ever the circum^tances may be, if she comes in contact with another vessel which is on the side of the river pi'escribed for her navigation. A vessel may legitimately cross the river whenever it is reasonably safe to do so, and it is the duty of other vessels j^roceeding up or down the river to use the ordinary precau- tions for avoiding collision with her. The Theijord, 6 Asp. M, C. 179. !,()( AI, lU'LF.S. 59 1 sound four hla.sls uj' two seconds duration; tlioi salUnfj ship (o Local rules keep out of tvaij.) (Tyne). 28. Every suiliug or steam vessel overtakiug any other vessel shall be kept out of the way of tho overtakcju vossel, which shall be kept on her course, an11. official, ship's, and euj^ineers' logs, 309. in previous acticju, 311. judgment iu uuotlier action, 308. foreign judgment, 225. result of iucpiiry under Merchant Shipping Acts, 309, before other tribunals, 309. protest, 310. depositions, 310. coastguard and liglithouse logs, 310. letter of muster, 31U. statement by master, 310. by seamen and others, 310. interrogatories, answers to, 311. as to questions of seamanship, 312. proof of the Regulations, 311, 341. fact of collision, whether evidence of negligence, 1, 31. of negligence when compulsor\- pilot in charge, 236. as to what is Trinity outport pilotage district, 271. as to calling compulsory j)ilot, 311. Fair-way, vessel brought up in, 35, 507. by necessity, 507. meaning of term, 464. Fault, statutory presumption of. See Presumption of Fault. Ferry Boat, must not ply in dense fog, 407. bringing uj) in the track of, 508. American cases as to collisions with, 408, 508. Fisuermen's Lights. See Fishiny Boats ; Liyhts, >S/tij}s\ FisnixG Boats, lights for. Art. 10. .380. fog-signals for, 382. trawler at work, 387. drift-net lisliermen, 381. line fishermen, 381. practice of trawlers to carry wdxite light, 390, Fl^vre, to attract attention, not illegal, 361. for fishermen, 381. to be shown to overtaking ship, Art. 1 1 . . 391 . M. 1: u gio index. Fog, vrhat is, within the Regulations, 397. speed in, Art. 13. .398. ferr}^ boats not to ply in dense fog, 407. vessel under way unnecessarily in, 402, 404, 407, 515. transmission of sound in, 32. duty of sailing ship in, 404, 405. duty of steamship in, 403. dredging with anchor, 404. barge under way in, 520. speed of sailing ship in, 404. running to get out of fog, 401. whether steamship to lie dead in the water in, 403. alteration of coui'se in fog, 353, 403, 452. Tog- SIGNALS, Article 12. .395. for steamship at anchor, 396. for sailing ship at anchor, 396. for fishing boats, 382. for steamship under way, 395. for sailing ship on starboard tack, 395. on port tack, 395. going about, 396. with wind aft, 396. trawler with gear fast, 388. to be sounded when in neighbourhood of fog-bank, 397. transmission of sound in fog, 32. mechanical fog-horn must be used, 397, 398. breaking down of, 54. Thames rules as to, 398. EoREiGN Judgment. See Judgment. FoREiGX Law. See America ; France, &c. when applicable, 208, 214. application, in case of collision abroad, 214. compulsory pilotage, liability of owners, 218, 230. limitation of liability by, 183. foreign local rules of navigation, 216, 524. foreign judgment. See Judgment. Foreign Ships, law applicable to, 208, 212, 215, 216, 218. pilotage certificates for masters and mates, 228. foreign owners, their liability. Sec Liahilitg ; Owners. Admiralty jurisdiction in case of collision between, 209. INDEX. Oil Foreign Siiii'S — continued. their rip^lit to sue in British Court, 209, 210. arrest of, for injury to property of British subject, 211. pilotage compulsory for foreign ships, 218, 2.30. limitation of liability, 173. See Llmitdlion of Llahilitij. tonnage of, for calculating liability, KJH, 170, 534. defence of compulsory pilotage availa);lo for, 21.3, 218. criminal liability lor reckless navigation of, 2U'J. infringement of Eegulations by, 216. liable for not standing bj^, 216. have benelit of limitation of liability, 219. British local rules of navigation bind, 216. liability of, for negligence, 212, 214. rule of the ruad for, 215, 533. no proceedings by Board of Trade, in case of loss of life, 223. statutory rules as to presumption of fault, 63, 217. ship of foreign sovereign. See Sovcrei;/)), Forciijn. ships of war and public ships not liable to arrest, 220. duty of, to assist other ship in collision, 217. rule as to division of loss applies to, 134, 220. Lord Campbell's Act, 222. 'FojTL BEiixn, 502. France, Law of, limitation of liability, 183. insurers' liability in case of collision, 289. division of loss, 158. liability for negligence, 213. presumption of fault, 32. compulsory pilotage, 256, 279. Free. See Running Free. Freight, damage lien attaches to, 81. liability of cargo to arrest, for payment of, 81. loss of, recoverable as damages. 111, 118. Germany, Law of, limitation of liability, 184. division of loss, 159. oAvner not liable for fault of compulsory pilot, 279. presumption of fault, 32. insurers' liability in case of collision, 289. Getting under Way, 509. R K 2 612 INDEX. GorN'G ABOL'T, rule as to beating out tack, 477, 511. sailing ship must not embarrass steamship by, 434. care to be used before, 510. missing stays, 510. duty to keep clear of ship in stays, 509. two ships on the same tack beating to windward, 461, 511. ship in stays, 510, 512. Government, Ship belonging to. See Sovn-eign, Foreign. liability in case of damage by, 102. not subject to arrest, 102, 220.' foreign public ship, damage by, 220. GRANGEilOUTH, LoCAL EULES, 561. Ground Tackle, insufficiency of, 11, 101, 242, 505. compulsory pilotage no defence in case of deficient, 242. Hailing, from the other shij), excuse for departing from Regu- lations, 6, 494. Harbour Authority, liability for fault of harbour master, 100, 252. unlicensed pilot employed by, 228. duty of, to remove wrecks, 97, 99. and to light and buoy sunken ship, 97, 361. liability for collision, 97—101, 251. Helm, verbal orders to, anomalous character of, 420, orders by hand, variety of practice, 421. collision caused thereby, 420. pilot liable for orders to, 244. owner, for carrying out pilot's orders to, 247. action of, with propeller reversing, 452. rule of port helm. See Port Helm. to be assisted by starting sheets and braces where necessary, 405. Holland, Law of, division of loss, 159. limitation of liability, 184. presumption of fault, 32. compulsory pilotage, 279. limitation of liability introduced from, 165. INDEX. 613 Holyhead, local rules of navigation at, oG(J. HovE-To, Ship, sliij) liovo-to, must comply with stceriug rules, 375, 415. steamship hovo-to under canvas, 430. was under way within Regulations of 18G3 as to lights, 375. Avhether she is not under command witliin Art. 5 , .373. whether negligence to lie-to in track of ships, 415, duty to get way on, where risk of collision, 416. IIuMBEK, local rules of navigation for, 5G6. Identification of Weong-doing Ship, 31 i). "Immediate Daxger," departing from Eegulations to avoid, Art. 23.. 480. «» " Improper Navigation," meaning of the term in statute limiting liabilit}', 176. damage by ship being launched is, 176. collision by detective steering gear is by, 175. injury by tug to tow is by, 176. In REM. See Proceedings in rem; Lien, Damage; Action. Independent Contractor, liability of ship for fault of, 89 seq. Inevitable Accident, meaning of the expression, 7. burden of proving, 8. instances of, 9 — 13. American cases as to, 13. ship disabled or \mmanageable, 9. defence of, cannot be sustained where speed excessive, 405. craft driving with the tide, 11, 16, 519. fault of one ship causing collision between others, 9. moorings giving way, 10. cable parting, 10. jamming of cable, 10. steering gear giving way tlirougli latent defect, 11. not letting go ancOior in time, 11, 13. ship driving over sand, 1 1 . dense fog, 12. whether rule of division of loss applies to, 152, 156. costs in case of. See Costs. 614 INDEX. Infeixoement of the IvEGULATIOXS. See Presumption nf Fault. history of la-u* as to, 39 seq. presumption of fault arising from, 38 seq. improper speed in tliick weather. Art. 13. .398. not using- mechanical fog-horn, 397. * improper hghts, 42, 54, 359 — 395. breaking clown of fog-horn, 54. improper screens, 4G. local rules, what rules are within the penalty of sect. 17. .58. Regulation infringed must be material to the case, 45. what amounts to infringement, 46. reasonable compliance required, 54, 368. there must be an opportunity of compliance, 46. failure to stop and reverse, 47. The Benares, 49. whether there can be, where collision is inevitable, 55. owners liable where ship deemed to be in fault, 64. whether the Sea Regulations can be infringed in a river, 59. infringement in the agony of collision, 56. in consequence of previous negligence, 56. whether tug liable for infringement by tow, 57. ordinary negligence, apart from the Regulations, not within penalty of sect. 17. .57. foreign ships within sect. 17. .63, 217. infringement must be pleaded, 307. Injury to Person, detention of foreign ship for, 211. Board of Trade proceedings in case of, 122. Inscrutable Fault, whether loss divided in case of, 2, 130, 157. in America, 158. Inspection, power of Admiralty Division to order, 312. exercised, refused, 312. Insurance, collision with reference to, 289 — 297. where collision is without fault in either ship, 289. by faiilt of the other ship, 289. insured ship, 289. both ships, 289. demurrage expenses caused by collision, 289. the running-down clause in a policy, 290. insurance against negligence not illegal, 292. loss after termination of voyage insured, 293. i.\i)i;\. CAr> IxsuKANCE — conlimied. insurers subrogated to rig-lits of assured, 293. assured recovering damages is trustee for insurer, 295. sufferer by collision may recover, notwithstauding compen- sation received from insurer, 123, 295. insurer cannot recover where assured could not, 29G. collision between two ships of same owners, 290. no average contribution for collision, 296. duty of master to take pilot in case of, 256. ruuning-down clause, 1-11. Interest on damages added to amount of statutory liability, 112. And see Damaycs. Interrogatories, 311. Italy, Law of, limitation of liability, 184. division of loss, 159. Jamming of Cable, 10. Judgment, not admissible as evidence, 225, 309. whether it can be pleaded, 308. foreign, whether enforceable in Admiralty, 225. resjiidicuia, plea of, 224, 309. for balance, where both ships in fault, 141. in personam bar to action in rem., 225. Judicature Act, nde-of division of loss, 133. Jurisdiction, of common law Courts for collision on high seas, 210. for collision in foreign country, 211. where plaintiff and defendant are aliens, 210. Admiralty. (See Admiralty Jurisdiction. criminal, for collision, 298. collision with pier abroad, 211. Jury, assessment of damages by, Lord Campbell's Act, 324. Keep her Course, duty of ship to, Art. 22. .471. meaning of expression, 473. 616 INDEX. Keep her Course — contimied. ship rounding a point, 474. duty of crossing steamship to, Ai't. 16. .425. duty of sailing ship to, in presence of steamship, Art. 17. . 429. duty of overtaken ship to. Art. 20. .456, 460. ship hj the wind may luff a little, 475. how ship hove-to is to, 475. alteration of speed is not infringement of Art. 22. .474. Keep out of the "Way, how a ship is to, 411, 471. Lati^ch, special precautions at, 36, 521. liability for damage by unregistered, is unlimited, 173. damage by, is by " improper navigation," 176. rule as to division of loss applies in case of damage by, 136. Law. See Foreign Law; Common Law; Maritime Laio; Ameri- can Law. Laying-to. See Hove-to. Lex Fori, rule as to application of, 208. claimants against ship rank according to, 215. comj^ulsory pilotage, non-liability of owners, 215, 218. statutory rules as to presumption of fault are, 63, 216. whether limitation of liability is, 218, 220. whether rule as to division of loss is, 135, 220. Lex Loci, rule as to application of, 208. liability for negligence of agents where collision aboard, 212, 214. whether limitation of liability is, 220. rule of division of loss, 135, 220. Liability, of actual wrong-doer, 66. of master, 66. when pilot on board, 246, 257. of pilot, 66. of shipowner for negligence of officers and crew, 68. of salvor, 13, 301. of charterer, 71, 74. of Trinity pilot, 178. of owner whore ship is demised, or under charter, 70 seq. INDKX. 617 Liability — continued. of undorwritors. See Insu7-ance. Ly civil law, 68. damage to pier or harbour works, 73, 86. of persons other than shipowner, 73. of ship in Admiralty, as distinguished from owner, 75, 88 svq. by American law, 93. See Harbour Authority ; Dook-otvner. of pilotage authority for pilot's negligence, 102, 253. in case of damage by Queen's ship, 102. by foreign public ship, 102. of foreign ship for negligence of crew, 212 — 214. cargo-owner not liable, 103. of part-owners, 103. joint wrong-doers, 103. in case of collision by fault of a third ship, 26. mere ownership creates none at law, 68. collision between ships of same owner, 104, 284. as between co-owners, 104. respective liabilities of tug and tow. See Tu(/ and Tow. of shipowner to charterer, for collision by fault of crew, 287. no average contribution for collision, 296, 302. of owner for injury to pilot by fault of crew, 109. of foreign sovereign, 220. of freight, in action in rem, 8 1 . limitation of. See Limitation of Liahiliti/. for loss of life or personal injury. See Loss of Life ; Injury to Person. of wrong-doer notwithstanding insurance, 123, 295. for interest and costs beyond statutor}' amount, 111, 177. at common law for damage at sea, 210, 212. for collision abroad, 95, 211. where both ships in fault, 125 seq. See Dirision of Loss. foreign law as to. See Foreign Law. where no fault in either ship. See Inevitable Accident. of unregistered British ship, 173. by the maritime law, 212. for wilful injury, 69, 223. for negligence. See Negligence. of wrong-doer, to indemnify employer, 72. for fault of compulsory pilot. See Compulsory Pilot. parting of moorings, 10, 101. infringement of th(> Eegulations. ^qq Presumption of Fault. collision with lightshiji, 123, 178. for damage by a launch, 36, 173, 176. by sunken ship, 96, 361. by ship abandoned, 96. G18 INDEX. Lien, Damage, generally, 78 — 88. its nature, 78, 79. damage to pier or harbour works, 73, 86. damage to or by a barge, 81. collision in body of a county, 81. where jurisdiction in Admiralty by statute, 85. priority of liens, 82. indelible character of, 80. whether it attaches where no collision, 85. none, for loss of life or personal injury, 122, 144. not founded on noxal action or deodand, 7G. none for damage by carrier to cargo, 82. to what it attaches, 80. cargo not subject to, 81. except to compel payment of freight, 81. it attaches to freight, 81. and to ship's tackle and equipment, 80. liability of ship and owners, how far concurrent, 75 scq. remains after death or bankruptcy of shipowner, 80, 89. takes precedence of liens arising from contract, 82. postponed to subsequent salvage lien, 82. where two or more actions for same collision, 84. where ship owned by company in liquidation, 80, 84. discharge of, 86, 88. assignment of, 88. laches in enforcing, 80, 88. American law as to, 93. Life, Loss of. See Loss of Life. Lightship, frequent collisions with, 303. penalty for injuring, 303. limitation of liability in case of collision with, 123, 178. Lights, Ships', range of, 370. rules concerning, 359 — 395. powers of Board of Trade to enforce, 534. must be strictly obeyed, 367. with reasonable strictness, 54, 368. whether obligation to carry, by the maritime law, 360, 377. clear night no excuse for absence of, 363. other than Regulation lights not allowed, 359. except in exceptional cases, 360. flare to attract attention allowed, 360, 381. sunken ships, duty to light, 98, 361. INDIA". 019 Lights, Siiirs' — continued. if lost, must bo rojilacoil, .302. lost in previous collision, 2o, 303. must 1)0 fiirried in positions required by law, 302, 308. ship with improper lights may be stopped, 305. taken down to bo trimmed, no excuse, 303. riding lights, 337 scq. side lights, 305, 387. mast-head light for steamships, 305. misleading lights, 302. spare lights, 302. shii) ashore, duty to light, 301. obscuration of lights, 303, 307, 378, 400. infringement of regulations as to (s. 17), 42 — 45, 54, 308. must be carried from sunset to sunrise, 359, 303. punishment for not carrying, 305. special lights required by local rules, 304. shipowner responsible for proper lights being carried, 305. for steamships under way, 305. seagoing steamships only within Art. 3 . . 370. ship dredging stern foremost, 307. Board of Trade instructions as to, 308. screens, infringement of regulations as to, 308. inspection of, ordered by Court, 370. for ships under convoy, 528. for ships not under command, 371. for men-of-war, 527. for telegraph ships, 341, 372. for steamships towing, 371. for sailing ship towing, 371. for sailing ship in tow, 375. for steamship in tow, 307. for dredgers in the Thames, 504. for sailing ships, 375. for fishing boats, 380. riding to nets, 381. line fishermen, 381. for trawlers, 382, 387. trawler with net fast, 381. steam trawler, 382, 387. fishermen may use flare, 381. for pilot boats, 379. ship driving from her anchors, 370. for boats and small craft, 370, 380. when they cannot be carried for bad weather, 370. practice of trawlers as to, 390. riding light. Art. 8. .377 ; Art. 10. .380. in the Ilumber and Mersey, two riding lights, 507, 570. 620 INDEX. Lights, Ships' — continued. ship moored to buoy or wharf, 379. inspection of fishermen's lights, 386. whether trawler at work must carry side lights, 387. stern light for overtaken ship, Art. 11 . .391. how to be carried, 394. sometimes indicate direction of ship's head but not her course, 390, 422. burden of proof as to, 3G. local rules as to. See Humher, Mersey, Thames, ^"c. Rides, in Appendi.K. Limitation of Liability, limitation by maritime law, 162. depends upon statute, 165. based on protection, 163. liability on master's contracts, foreign law, 161, 163. analogy of noxal action, 164. deodand, 164. connection between limitation of liability and division of loss, 164. connected with liability of ship, 164. history in English law, 165. the existing law, 25 & 26 Vict. c. 63. . 167. what owners are entitled to, 171. justice of the Acts questioned, 169, 181. applies to all ships and in all waters, 169. foreign ships' tonnage, how calculated, 170. deduction of crew spaces, 170. steamships' tonnage, how calculated, 171. alteration of register tonnage after collision. 171. register not conclusive as to tonnage, 171. successive actions by cargo-owners and shipowners, 323. unregistered British ships not entitled to, 173. what ships entitled to, 173. limit of liability where more than one collision, 174. without actual fault or privity, meaning of expression, 171, 176. co-owners, one in fault, 172. amount recoverable in Board of Trade proceedings, 175. owners not discharged by sinking of ship, 174. Lord Campbell's Act, damages recoverable under, 175. loss of life, amount recoverable, 167, 175. improper navigation, meaning of term, 175 seq. injury to tow by tug, 176, 205. injury by a launch, 176. shipowner liable for interest in addition to, 177. shipowner liable for costs in addition, 177. INUEX. 021 LlMITATIOX OF LlAltlLlTV — continued. Avrong-doLT not purged by payment of statutory lial)ility, 177. only applies to injury to craft, persons or goods afloat, 178. railway company carrying in ship of other owners, 17H. liability of owiK-r navigating own sliip is unlimited, 178. Trinity House pilot, 178. actual wrong-doer unlimited. 17(). single ship company, 179. liability for damage to lightship, 178. as against Crown, 178, 180. does not affect liability of cargo to arrest, 178. combined with rule as to division of loss, 138, 179. insurance against risks covered by, 179. its policy discussed, 1G9, 181 secj. foreign law as to, 182, 183. owners entitled to, in contract as well as tort, 174. whether /^u-yb/-/, 218, 220. foreign ships imder old law, 219, priorities of claimants, 180. proof by Crown, 180. liolder of bottomry bond on freight, 180. action for, 320. benefit of Act may be claimed by defence or counterclaim, 32 1 . costs of limitation action, 321. evidence by affidavit, 321. whether liability must be admitted, 321. right of cargo owner to issue whether one or both ships in fault, 322. transfer of action after judgment limiting liability, 322. proof against fund ; estoppel, 322. Lis alibi pendens, 223. Liverpool, compulsory pilotage, 269. cases as to, 234, 269. local rules for Mersey river, 570. sea channels, 569. Local Rules of Navigation, power for her Majesty in Council to make, 532. saving clause as to, in the Sea Eegulations, Axt. 25. .523. ignorance of, no excuse, 524. where inconsistent with the Sea Eegulations, 343, 526. foreign ships bound by, 216. in foreign waters, 216, 524. applicable in conjunction with Sea Regulations, 59, 343, 526. in dockyard ports, 525. customary track in winding rivers, 467. 622 INDEX. Local Rules of Navigation — continued. practice inconsistent with tlie Sea Eegulations not good, 357. effect of, upon question of neg'ligence, 523. infringement of, whether within sect. 17. .58. as to ship's lights, 362. for Belfast, 560. Carron river, 561. the Clyde, 562. Cork, 565. Solent, anchorage in, 571. Dublin, 565. the Elbe, 379. Grangemouth, 561. Holyhead, 566. the Humber, 566. Mersey (river), 570 ; (sea channels), 569. Penarth, 364. Rangoon, 362. Tees, 572. Suez Canal, 364. Thames, 575; decisions on, 585. Trent, 566. Tyne, 589. Log, ship's log evidence against, but not for, the ship, 309. though the mate dies after collision, 309. official log, 309. engineer's log, 309. lighthouse and lightship, 310. LoNDOx Trinity House, compulsory pilotage, 266, 269. pilotage districts of, 269. outport districts, 270. evidence as to what is an outport district of, 271. exemj)t ships, 272. jiilotage licences to masters and mates, 272. oversea licences, 273. pilotage certificates, 273. Look-out, duty as to, generally, 496. liability for consequences of neglect of, 496. astern, 393, 497. not to be employed on other duty, 496. glasses, 498. station for, 496, 497, 499. iM)i;x. 623 Look-out — cunt in tied. on forecastle) licad in Thames, 497. ■U'liat is sullifieut, 4'JG. American cases as to, 499. duty of tug and tow to keep, 200, 201, 498. "vrhon pilot on board, 21G. Loud CAMrnELL's Act. ►Soo (JamphelVs Act, Lord. Loss, Division of. See Division of Loss. Loss OF LirK, no action in rem, under Lord Campbell's Act, 122, 144. proceedings by lioard of Trade in case of, 122. limit of liability in case of, 167, 175. inquiry by IJoard of Trade before action brought, 318. except -where ship sued is foreign, 223. criminal liability for, 297. priorities of life claimants, limited liability, 180. Lyikg-to. See Hove-to. Mail Ships, speed of, 401. Maritime Law, existence of, questioned, 161. division of loss, whether a rule of, 127 seq. no limitation of liability by, 161. rule as to ship on port tack bearing up, 339, 409. overtaking ship to keep out of the Avay, 460. the Eegidations for preventing collisions are part of, 344. as to ships' lights, 360, 377. liability for negligence by, 212. division of loss. See Division of Loss. MARiTniE Lien. See Lien, Damage. Master, duties of, when pilot in charge, 246. relative authorities of master and pilot, in law, 243, 255. by the custom of seamen, 253. liability for acts of crew, 66. for acts of pilot, 257. in respect of certificate, 257. as carrier, 287. duty to take pilot, 256. 0J4 IMDKX. Master — con finned. penalties for improper navigation, pilot on board, 258. for neglecting to carry lights, .'364. resj)onsibility with, reference to his certificate, 257. whether fellow servant of crew, 109. duty of, with regard to cargo injured by collision, 116. as to standing by to assist, after collision, 61. co-owner, limitation of liability, 172. having pilotage certificate, owner's liability, 228, 263. pilotage certificates granted to British and foreign, 263, 273. Measure of Damages. See Damages. Meeting Steamships, rule of the road for. Art. 15. .419. distinguished from "crossing" and "overtaking" ships, 421, 426. " end on, or nearly end on," moaning of the term, 419, 424. in a winding river, what are, 425, 427, 466. Mersey, pilotage in, 235, 269. local rules for the river, 570. local rules for the sea channels of, 569. starboard side rule in, 525. lights in, 569, 570. launch in, special precautions for, 522. effect of infringement of local rules, 59. -• Mid-channel, meaning of the term in Ai-t. 21 . .464. Misdemeanor. See Criminal Liabilitij. endangering life or ship, 298. infringing the Regulations, 298. not standing by to assist, 60. neglect to carry lights, 365. navigating on wrong side, 463. Misleading, by hailing or whistling, 6, 494. by improper lights, 5, 50, 57, 362. Moorings, parting of, 11, 101. insufficiency of, in dock, penalty for, 506. ship at, to carr}' lights, 378. making fast to other craft, 507. when required, 505. INDEX. 625 NaRRO-W CnANNEL, starboard side rule, Art. 21 . .462. under former Acts, 463. ■what is a, 464. whether for judge or jury to say, 466. navigation of a winding river, 467, .01 3. consequence of infringement of starboard side rule in, 463. passing a ship ahead in a, 13, 462, 479, 518. turning to windward in, going about, 461, 511. speed in, 520. raising swell in, 520. "Navigation, iMPRorEii." See Improper Navigation. Navigation, Rules of. See Regulations ; Local Rules. Navy, collision with Queen's ship, liability, 102. And see Queen^s Ships. position and authority of pilot in, 254. shijis of Royal, whether bound by the Regulations, 528. Negligence, generally, 1 — 39. defined, 2. is the same at law and in Admiralty, 17. a wrong stop taken in the agony of colHsion is not, 3. careless management of thing likely to do damage, 34, 72. causing collision, 14. collateral, not causing the loss, 24. defective equipment, 24, 33, 176. causing the loss but not the collision, 15. causa proxima nofi remota spectatur, 16. in one sliip does not excuse the other, 6, 494. causing a collision which makes a second inevitable, 25. of one ship causing a collision between others, 27. after collision, 114, 116, 117. non-compliance with the Regulations is, 6. or with local rules of navigation, 523. presumed })y law. See Presumption of Fault ; Infringement of Regulations ; Standing Bg. stress of weather, excuse of, 516. unnecessary alteration in the course, 27. proof of negligence, 30 seq. burden of proof, 30. fact of collision not sufficient, 1. on part of compulsory pilot, 238. failure to hear fog-signal, 32. what is prima facie proof of, 34. 35. M. S S 626 INDEX. Negligence — continued. at a launch, o, 36, 521. in a salvor, 13. in a tug, 13. See Tug and Tow. whetliei' negligence to heave-to in track of ships, 415. contributory negligence, 1 8 seq. whether negligence of compulsory pilot is, so as to affect the owners, 202,236,241. where pilot's negligence affects the ship, 23, 236, 242. where with ordinary care the collision might have been avoided, notwithstanding negligence in the other ship, 18 seq. collateral negligence influences juries, 28. wilful injury, 29, 70, 223. legal consequences of, by maritime law, 212. consequences of, not got rid of by payment of amount of statutory liability, 177. rule as to division of loss does not affect question what is negligence, 144. insurance against, not illegal, 292. as to sunken ships, 97. Netherlands, Law of. See Holland. Norway, Law of, as to division of loss, 160. NoxAL Action, analogy between, and law as to damage lien and limitation of liability, 76, 80, 164. Nuisance, ship brought up in fairway, 35, 507. ship sunk in fairway, duty to buoy and light, 97, 361. OusE, EiVER, rules, 566. Overtaken Ship, what is, 392, 426, 462. duty of, to show Kght astern. Art. 11 . .391.] duty of, to keep her course. Art. 22. .471. " crossing " ship may be, 426. is not " approaching " the other within Art. 18. .451. Overtaking Ship, duty of, to keep out of the way, Art. 20. .456. is a rule of maritime law, 460. may be a " crossing " ship, 426. INDEX. 627 Overtaking Ship — continued. what is an, 426, 458. anomalous American decision, 429. sailing ship overtaking? steamship or sailing ship, 4.57. must bo going faster than ship ahead, 458. cases illustrating Art. 20. .4()1. passing another in a narrow channel, 462. ship ahead wearing, following ship is not an overtaking ship, 462. ships plying to windward in company, 511. Owner OF Cargo. Seo Car(/o Owner ; Carrier. Owners of Ship, liability of. See Linhility. at common law, 67. by maritime law, 212. by Roman law, 68. of abandoned ship, their liability for damage by, 96. whether liable for wilful and criminal acts of crew, 29, 69. not liable for negligence of compulsory pilot, 227. And see Compulsory Pilot. how affected by fault of compulsory pilot, 23, 236, 243. not liable quel owners, 68. prima facie liable as employers of crew, 68. liable for acts of crew within scope of their employment, 69. resident abroad, liabilitj^ of, 211. of foreign ship. See Foreign Ship. service of writ on foreign, 318. foreign. See Foreign Law ; Foreig7i Ship. foreign, liable for infringement of the Eegulations, 63, 216. foreign, defence of compulsory pilotage available for, 215, 218. foreign, whether liable for not standing by, 216. unregistered, liability of, 68, 74. unregistered, recovery by, 106. liable for negligence of Thames waterman, 233. when liable for negligence of pilot. See Compulsory Pilot. indirectly liable in Admiralty when not at law, 89 scq. not discharged from liability by loss of their ship, 103. part owners. See Part Owners. suing in successive actions, 106. limited liability of. See Limitation of Liability. " actual fault or privity of," meaning of term, 171. wrong-doing master a part owner, 172. pro hdc vice owners, liability of, 89 — 93. collision between ships of samo owner, 104. ss2 628 INDEX. Part Owkers, successive actions by, lOG. contribution between, for damages, 104. several liability of, 103. wrong-doing master part owner, limitation of liability, 172. surety for damages, recovery by, against co-owner, 104. damage to cargo, action for. See Cargo; Cargo Owner. survival of action in case of death of part owner, 107. collision between sbips owned in part by same persons, 104. Parting of Cable or Moorings, 10, 101, 195. Partners, liability of, for collision, 74. is imlimited, where not shipowners, 74. Party, Third, procedure, 207. Penalties, infringement of the Eegulations, 38 — 60. for not standing by after collision, 60 — 65. for improper navigation, when pilot in charge, 258. injury to lightship or buoy, 123, 303, 509. cancellation of certificate, 257, 300. neglecting to carry lights, 365. improper mooring in dock, 506. Perils of the Sea, collisions within exception of, 286. Person in Charge, who is, within rule as to standing by, when pilot on board, 61 . is in owners' employment, 2^^'i'ma, facie, 68. Person LIABLE. See Liahilifi/ ; Otcners; Comjmlsory Pilot ; Wrong- doer. Personification of Ship, the wrong-doing ship, 75 seq. Persons entitled to Eecover, 106 — 109. bailees of injured ship, 106. under Lord Campbell's Act, 106. persons or owners of cargo on board wrong-doing ship, 107. persons injured, 106, 175. common employment, doctrine of, 109. compulsory pilot not fellow servant of crew, 109, unregistered owners of injured ship, 106. indorsee of bill of lading, 106. INDEX. 620 Pier, damage to, 73, 80, 9G. damage tu, by compulsory pilot, owners not liable, 232. damage to pier abroad, 211. unlimited liability in case of damage to, 7?, 178. maritime lieu for damage to, 73. Pilot. See Compulsory Pilot. authority and duties of, in law, 243. whether law and practice agree as to his authority, 253. may be sued in Admiralty, 31G. compulsory. See Compuhonj Pilot. liability of Trinity, is limited, 17S. is owner's servant, when not compulsory, 227. duty of master to employ, in case of insurance, 2.5(). compulsory pilot is not fellow-servant of crew, lO'J. actions against, 66. Pilot Boat, collision with, 380. signals for, 364. lights of, Art. 9.. 379. Pilotage Acts and Authorities, list of, 258 — 280. Pilotage Authority not liable for pilot's negligence, 102, 253. Pilotage Certificate, pilotage not compulsory for ship whose master has, 228, 263. granted to masters and mates of British and foreign ships, 263, 268, 273. Port Helm, applicable only to steamsliips meeting end on, Art. 15. .422. both ships must port, 423, 494. old rule as to, 422. effect of port helm Avith propeller reversing, 453. ride of, does not apply to sailing ship meeting steamship, 431 . Port Tack, duty of ship on, Art. 14. .409. Portugal, law of, limitation of liability, 184. division of loss, 159. Practice, inconsistent with the Regulations is illegal, 357. as to navigation of winding rivers, 467. in collision actions. See Practice; Collision Action. 630 INDEX. Practice : Collision Actions, service of writ out of jurisdiction, 304. address of "syrit, 304. ty whom writ to be served, 304, 327. owners resident abroad, 318. preliminary act, 305. in wliat actions necessary, 306. object of preliminary act, 306. proof must be secutidiim allegata, 307. infringement of Eegulations must be pleaded, 307. defence, pleadings, 308. pleading judgment at law, 308. evidence. See Evidence. wlio to begin in collision action, 311. inspection, order as to, 312. assessors, tbeir function, 312. diiferenee of opinion between tbem, 313. seamanship, evidence of experts, 312. defaidt of appearance, judgment, 87. plaintiff, unsuccessful at law, cannot sue in Admiralty, 313. nor at law and in Admiralty at same time, 313. consolidation of actions. See Consolidation. plaintiff lying by to await result of previous action, 315. cross-actions, stay of proceedings where one ship only arrested, 315. cross-actions, one in County Court, 316. separate actions for injury to property and person, 316. action against pilot, 316. against Dublin Steam Packet Co., notice, 317. action at law, supplemented by proceedings in rem, 317. and vice vet'sd, 317. re- arrest of ship for costs, 318. no action for loss of life before Board of Trade inquiry, 318. loss of life, no action m rem, 318. third party procedure, 319. arrest of wrong ship, 319. limitation of liability action for. See Limitation of Liability. successive actions by shipowner and cargo owner, stay, 323. loss of life. Board of Trade proceedings, 323. damages assessed by registrar and merchants, 323. remoteness of damage, whether for registrar or Court, 323. Lord Campbell's Act ; assessment of damages by jury, 324. surety in Admiralty bond, recovery against co-owner, 324. liability of master in bond to stop arrest, 324. Admiralty jurisdiction of High Court, 325. of County Courts, 326. v; INDEX. 631 Pbecautions, whon passing over fishing grounds, 512. saving clause in Regulations as to ordinary or special, Art. 24.. 495 scq. special precautions required by ship navigating in unusual manner, 513. and by ship of peculiar construction, 518. in fog. See Foy. Presumption of Fault. See Burden of Proof. statutory rules as to, in case of — infringement of the Eegulations, 38 seq. See Infringe- ment of the Regulations. not standing bj' to assist after collision, CO — 63. See Standing by. history of legislation as to, 39. object of statutory rule, 41. deficiency of lights, 42 — 45, 54, 359 scq. steering rules, 4G. shipowner liable where faidt presumed, 64. * and j)er5on in chai'ge of the deck, 65. division of loss where faidt is that of compulsory pilot, 141. whether tug aifected by fault of tow, and vice versd, bl. infringement of local rules, 58. in case of foreign ships, 63. rules as to, are lex fori, 63, 216. whether they apply to Queen's ships, 64. pRiviTy OF Master or Owner, no limitation of liability in case of, 171, 176. right of co-owners to limitation of liability, 171. Proceedings in rem. See Lien, Damages. generally, 79. cannot be tacked to action at law, 317. ship may be liable in, where owner is not, 89 seq. may bo supplemented by common law action, and vice versd, 317. none for damage to cargo by carrier, 82. do not always give rise to maritime lien, 86. against barge, 81. where no collision, but damage, 85. for loss of life or personal injmy, do not lie, 122, 144. against ship of foreign sovereign, 220. against tug, 206. 632 IMDEX. Peoof. See Evidence. of negligence, 30 seq. burden of, 30. as to fault, when compulsory pilot in charge, 236, 238. of Eegulations, 311, 341, 530. Peopellek, effect of on ship, when reversing, 453. Protest, evidence against, but not for, the ship, 310. Queen's Ships, Kability for damage by, 102. not bound by statutory Eegulations, 463. responsibility of captain with pilot on board, 254. ship chartered by Government, 72. whether subject to ride as to presumption of fault, 64. not subject to compulsory pilotage Acts, 228, 287. Eatt, in Canada, 515. Eailwat CoMPAvr, liability of, when carrying by sea, 178. Eecover, Persons entitled to. See Persons entitled to Recover, Eeference to Eegistr.ui, costs of, do not follow result of action, 332, 333. as to consequential damages, 324. Registrar. See Reference to Registrar. Eegulations for Preventing Collisions at Sea, of 1884, set out, 537. "Washington Maritime Conference, 341. AVashington Eegulations, set out, 548. history of legislation as to, 339. early history of the port-tack rule, 339. publication of, 530. how proved, 311, 341, 530. owners and masters bound to obey, 530. whether Eegulations for other purposes than prevention of collision are vahd, 342, 530. to minimize effect of, as well as to prevent collision, 450. in what waters they apply, 342, 465. their application in waters where local rules are in force, Ai-t. 25.. 405, 459, 532. to what ships they apply, 344. to ships propelled by electricity, 359. Queen's ships and foreign ships of war not bound by, 528. INDEX. 6'i3 Eegulatioxs for Preventing Collisions at vi-zx— continued. penalty for disobeying. See Frestityiption of Fault ; Infriiujc- mcnt ; Penalties. their international character, 844. uniform construction by all nations desirable, 345. safety attained by uniform observance, 472. rules as to construction of, 346, 480. apply until the ships are clear, 356. they furnish the test of negligence, 347. departure from them allowed only in case of necessity, Art. 23.. 480. they apply where there is risk of collision, 348. and \semble) where probable risk of collision, 348. indications of risk, 350. whether they apply where collision is inevitable, 352, 442. Avhat constitutes risk of collision, 349. alteration of course for safety where there is no risk, 353. alteration of course causing risk, 353. "meeting" ship does not become "crossing" ship by alteration of course in accordance with the Regulations, 355. apply until risk determined, 356. close shaving not allowed, 356, 516. must be promptly obeyed, 355. practice of custom inconsistent with Eegulations is bad, 357. to ships of what nations Eegulations of 1884 apply, 358. decisions on earlier Eegidations are binding, 358. steamship, what vessel is, 359, 360, 370. "underway," meaning of the term. See Under Way. rules concerning ships' lights. JSee Lights, Shij)s\ steering and sailing rules. Arts. 14 — 21. .409 — 479. for sailing ships. Art. 14. .409. for steamships meeting, Art. 15. .419. for steamships crossing, Ai't. 10. .425. for sailing ship and steamship, Ai"t. 17. .429. steamship to stop and reverse. Art. 18. .434. duty of ship required to keep out of the way. Art. 14. .411. duty of ship required to keep her course. Arts. 14, 20.. 412, 460. duty of overtaking shij:*, Art. 20. .456. starboard-side rule, narrow channels. Art. 21 . .462. a hard case. Art. 14. .413. ship hove-to must comply with steering and sailing rules, 414, 474. ordinary precautions to be observed. Art. 24. .495 seq. small ships not required to keep clear of large, 523. local rules of navigation. See Local Rules. 634 ' INDEX. Eemoteness of Damage, 110, 121. Eemoval of Wreck, duty of harbour authority as to, 99 seq. Eepairs, cost of, allowed as damages, 111. possessory lien for, whether damage lien ranks before, 82. duty to repair injured ship after collision, 116. after arrest, 84. Ees. See Proceedings in rem ; Lien. Ees judicata, 224. Eespondeat superior, doctrine of, is lex loci, 214. expediency of doctrine, 182. does not apply in case of compulsory pilotage, 227 seq. or to superior officer in Eoyal Navy, 102. Eestitutio in integrum, meaning of phrase, 110. EiDiNG Light, Art. 8. .377. See Lights, Ships\ for fishing boats and open boats, 381. in Mersey, best position for, 333. EiSK OF Collision, what constitutes, 349. indications of, 350. uncertainty of facts causing risk, 351. instances of, 351. whether Eegulations apply where there is probability of risk, 348, 478. or after risk is determined, 438. altering course so as to bring about, 353, 459. altering course where there is no, for greater safety, 353. ElYER, whether the Eegulations apply in, 343. customary track of ships in, 467. navigation of winding, 467, 513, 514. starboard-side rule in, Art. 21 . .462. American rivers, rules of navigation in, 469, 513. application of crossing rule in, 427. duty to ease before rounding a point, 468, EoMAN Law, liability for collision, 68. EOUNDING-TO, 433. EuNNiNG-DOWN Clause, in policy of insurance, 290. INDEX. 635 *' EuNNiNG FREE," meaning of the term, Art. 14. .410. Rule of the Road. See Regulations for Preventiny Collisions ; Local liulcs ; Forciyn Laio ; Forciyn Ships. Russia, Law of, divisiou of loss, 160. limitation of liability, 184. Sailing Ship, what is, Art. 1 . . 359. duty of, approaching steamship, Art. 17. .429. running free, Art. 14. .410. close-hauled, Art. 14. .414. meaning of "close-hauled," 414. approftching another on opposite tack, Ai't. 14. .409. with the wind aft, Art. 14. .409. to go at moderate speed in fog, &c., Art. 13. .404. overtaking another steam, or sailing, ship. Art. 20. ,456. sound signals for, in fog, &c., Art. 12. .395. no " end on " rule for, 423. hove-to. See Hovs-to, Ship. Saint Lucia, law of, division of loss, 160. limitation of liability, 170. compulsory pilotage, 220. Salvage, loss of expected salvage, damages, 118. expenses, damages, 119. service, whether within scope of master's employment, 69. action, whether costs of, recoverable as damages, 119. duty to stand by does not affect right to, 62. Salvor, collision with, 13, 301. Scope of Employment, employer liable for acts of servant within, G9. whether salvage service is within, of master, 69. Screens, Regulation as to. Art. 3. .365. shortness of, 46, 368. Seamanship, assessors in Admiralty advise as to matters of, 312. rules of, to be observed, 347 scq.; Art. 24. .495 scq. saving clause in Regidations as to. Art. 24. .495. ordinary precautions recognised by the Courts, 495 seq. 636 INDEX. Servant, doctrine of common employment prevents recovery by, 109. whether master is follow servant of crew, 109. compulsory pilot is not servant of shipowner, 227. voluntary pilot is, 227. licensed Thames waterman is, 233. Sheeking- ABOUT, when at anchor, 378, 505. Smr, what is a "ship " within 17 & 18 Vict. c. 104. .326. 3G & 37 Vict. c. 85, s. 17.. 63. the Regulations, 344. 25 & 26 Vict. c. 63, s. 54. .172. 31 & 32 Vict. c. 71, and 32 & 33 Vict. c. 51.. 81. what is a " sea-going" steamship, 370. liability of, by maritime law, 94. liability of, in Admiralty proceedings in rem, 75 seq. liable where owners are not, 75, 89 — 94. personification of, in Admiralty, 77. affected by fault of those on board, 89—94. limitation of liability for damage to, 178. chartered, liability for damage by, 72, 74, 90. liability of, iti rem, for not standing by, 64. personification of, 75 seq. disabled, collision with, 9, 25, 490. disabled by own fault, 25. of unusual and dangerous construction, 518. sunken ship, damage by, 96 — 99. See Smiken Ship. launch. See Launch. not under command, lights and signals for, Art. 5, .371. foreign ship. See Foreign Ship. telegraph ships, lights and signals for, 341, 372. hove-to. See liove-to. Ship. barge, damage by or to. See Barge. ferry boat. See Ferry Boat. of foreign sovereign, damage by, 220. mail ships, speed of, 401. Queen's ship, damage by, 102. Queen's ships, whether bound by the Eegulations, 528. in service of the Government, damage by, 72, 103. hove-to, must comply with steering rules. See Hove-to, Ship. crossing ships. See Crossing Ships. meeting ships. See Meeting Steamships. overtaking and overtaken ship. Qee Overtaking Ship ; Over- taken Ship. close-hauled. See Close-hauled. INDEX. 637 Ship — continued. abandonment of, after collision, by her own crew, 113. " improper navigation " of, moaning of, 176. small craft not required to keep out of the way of largo, 523. owners, tlieir liability. See Owners of Ship; Liahililtj. ships' lights. See Lights, Ships' . liabilit}' for damage by or to. See Liahility. rule of the road for. See Regulations. speed of. See Speed. steamship. See Steamship. towing or in tow. See 7'ng and Toiv. on port tack. See Port Tack. Shipowner. See Owners of Ship. Shortexixg Sail, when entering harbour, 504. in a fog, duty of sailing ship, 404. Side Lights. See Lights, Ships' . Signals, sound signals in fog, Art. 12. .395. See Fog Signals. whistling to indicate alteration of course, Art. 19. .455. distress, 364, 528. private lights, 364. for pilot, 364. pilot boats' flash. Art. 9. .379. for ship not under command. Art. 5. .371. for telegraph ships, Art. 5. .372. Slacken Speed, duty of steamship to. Art. 18. .434. whether duty to, arises at same time as duty to alter course, 435 scq. breach of Art. 13 is breach of Art. 18. .435. Slipping, to avoid collision, 27, 508. Small Craft, not required to keep out of the way of large, 523. Smelling the Ground, 515. Smoke, obscuration of lights by, 406. Solent, anchorage ground in, local rule, 571. Sound, transmission of, in fog, 32. signals for thick weather. See Fog Signals. signals to indicate alteration of course. Art. 19. .455. 638 INDEX. « Sovereign, sliip of foreign, not liable to arrest, 220. ninst give bail to answer counterclaim, 222. submitting to jurisdiction of British Court, 222. SrAiN, Law of, as to division of loss, 159. limitation of liability, 184. liability for negligence, 213. Special Circumstances rendering departure from Eegulations necessary. Art. 23. .480. Speed, duty of steamship to slacken, or stop, Art. 18. .434. moderate speed required in thick weather, Art. 13. .398. what is moderate speed, 399. of sailing ship in thick weather, 404. through the water, not over the ground, 574. carrying on, to get out of fog, 40 i. sinking or damaging craft by swell raised by excessive, 27, 29, 520. of mail ships, 401. tide immatei-ial where both ships under way, 400. instances of improper, 401, 405. of steamship approaching other craft, 452. whether steamship in fog may lie dead in the water, 450. alteration of, is not infringement of Art. 22. .474. excuse that engines will not turn over, 353. in Thames, 577, 580. Tees, 574. Clyde, 563, 564. Carron river, 562. * Humber, 568. Suez Canal, 572. Tyne, 590. Standing by, statutory rule as to, 60 — 63. does not aifect right to salvage, 62. applies to collision with a fishing-boat, 63. foreign ships bound by, 63, 217. ■what is "reasonable cause" for not, 61. on whom the duty is cast, 61, 236. duty to look out for distress signals, 01, 62. ■what is " proof to the contrary " within sect. 10 . . 03. rule as to presumption of fault is lex fori ^ 63. whether rule applies to Queen's ships, 64. INDEX. G39 Stakboard-side Eule, Article 21.. 4G2. under former Acts, 4G2. history of tlio rule, 4G2. ajiplies to steamships only, 462. consequences of beiuf^ on wrong side, 463. whether it overrides tlio steering rules, 465. whether it applies where local rides in force, 465. in force under certain local Acts, 463. decisions as to rule of the road on land, 466. application in winding river, 467. in Clyde, 563. in Tees, 573. Starboard Tack, duty of ship on, Art. 14. .409. Stay of Proceedings, cross actions, one ship only under arrest, 315. successive actions, cargo owner and shipowner, 320. Stays, In, See Going ahoiit. duty to keep clear of ship, 510. STEAMsnir, , meaning of the term in the Eegulations, 359. ship propelled by electricity, 359. " seagoing " steamship, Art. 3. .370. meeting another end on, Art. 15. See Meeting Steams/tips. to keep out of the way of sailing ship. Art. 17. .429. in narrow channel, starboard side, Art. 21 . .462. to slacken or stop, if necessary, Ai't. 18. .434. liglits of. See Lights, Ships\ tug is, and must keep out of the way, 185, 430, 432. fog signals for, Ai-t. 12. .395. speed in fog, Ai't. 13. .398. Steering and Sailing Eules, Arts. 14 — 21 . .409 — 479. Steering Gear, failing to act, 11, 176. Stern Light, Article 11.. 391. to be shown, though no risk, 391. when to be shown and how long, 392. whether to be fixed, 394. Stoprixg and Eeversing, rule as to, Art. 18. .434. effect of, on ship's head, 453. not always prudent course, 452. in fog, with another ship near, 445. 640 INDEX. Stopping and Eeveesing — confmued. object of rule is to minimizo effect of, as well as to prevent collision, 450. burden of proof, upon steamship failing to, 451. whether steamship lying dead in water must, 450. when other ship's course cannot be made out, 451. overtaken ship not bound to, 451. the case of 27ie Khedive, 48. SiTEZ Canal, authority of pilot in, 231, 256. pilotage not compulsory, so as to exempt owners, 231, 256. local rules of navigation for, 572. SuiTEREE BY COLLISION. SoB Persons entitled to Recover. Sin;E, EiVEE, local rules for, 572. Sunken Ship, damage by, 96 — 99. no obligation on owner to raise, as against wrong-doer, 116. wrong-doer not discharged by sinking of his ship, 103. duty to light and buoy, 96, 361. cost of raising, as against cargo-owner, 177. Surety, recovery by, against part owner, 104. Sweden, Law of, as to division of loss, 160. Swell, sinking and damaging craft by raising, 27, 29, 520. Tack. See Port Tach ; Starboard Tack ; Beating out Tack. Tackle, Ground. See Ground Tackle. Tees, local rules of navigation for, 572. pilotage in, 276. Telegraph Ships, lights and signals for. Art. 5. .341, 371. Submarine Telegraph Act, 1885. .341. Thames, local rules of navigation for, 575. decisions upon these rules, 585. rules under Watermen's Act, 583. damage to property of Thames Conservancy by compulsory pilot, 232. speed in, 577, 580. waterman, is owner's servant, 233. INDEX. G41 Thick Wkatueu. See Fog. Third Pakty Pkoceduuk, 207, ;319. Third Siiir, liability of, for collision between two others, 2G. recovery by, collision caused by fault of two others, 2G. where collision caused by fault of tug or tow. 8ee Tug and ow. Tide, customary track in rivers, with reference to, 467, 513. eddy tide causing collision, 438, 515. immaterial, as regards speed, where both under way, 400. material, wliere one ship is at anchor, 400. speed, whether thi'ough the water or over the ground, 574. Tonnage, of foreign ships, for estimating liability, 168, 171. of steamships, for like purpose, engine-room not deducted, 171. crew spaces, when deducted, 170. Tow. See Tug and Toiv. Towage Contract. See Tug and Toiv. its terms and performance, 199 scq. broken by negligence causing damage to tow, 199, 302. mutual rights of tug and tow under, 201. special, 203. TRANsroKT, damage by, to another of the fleet, 72. Trawler, lights of. Art. 10.. 380. collision with, 387. practice of, to carry white light, 390. ■with gear fast, fog signal, 388. when to carry side lights, 388. Trent, local rules, 566. Tug and Tow, tug and tow for some purposes deemed to be one ship, 185. as regards compliance with the Regulations, 185, 430. " tug is servant of the tow," meaning of the phi'ase, 186. danger of double command, 198. doctrine of common employment as between, 205. command, where two or more ships in tow, 206. liability of tow for damage by tug, 188. M. T T 642 l^'l)Ex. Tug and Tow — continued. where the command is with the tug, 189. compulsory pilot in charge of tow, 193, 238, 241. compulsory pilotage no defence where tug deficient, 243. whether tow affected by negligence of compulsory pilot, 202, 242. whether tug liable for fault of pilot, 194, 241. responsibility for emj)loyment of tug, 195. duty to employ, when driving, 505. liability of tow-owners for damage by tow, 190. liability of tug-owners for damage by tow, 190. whether tug liable for infringement of Regulations by tow, and vice versa, 57, 188. whether crew of tug are tow-owners' agents, 190. improper number of ships in tow, 205. collision between two ships in tow, 206. tug and third ship by fault of tug, 188. division of loss, colhsion between tow and third ship, 203. recovery by tow against tug of damages paid to third ship, 202. recovery by tug against tow, 204. injury to tow by tug, "improper navigation," 176, 204. American cases as to liability of tug and tow, 195, damage by tow line to third ship, 201. lights for steamship towing, 371. tug waiting to assist tow when injured, remuneration, 199. tug, tow, and third ship, third party procedure, 207. tow lashed alongside, 197. liable in rem, 194, 206. tow in collision after being cast off, 203. tug salvor, 189, 199, 205. negligent towage, Admiralty jurisdiction, 26, 206. the towage contract, its terms and performance, 197, 199. duties of tug, 200. in crowded waters, 198. must be sufficient for her work, 200. sufficiency of tow line, 200. must keep vigilant look out, 200. must warn tow of danger, 198. if obliged to cast off tow, must pick her up again, 200. must obey orders of tow, 200. must keep clear of craft without orders from tow, 198. duties of tow, 200, 201. must follow in tug's wake, 201. warn tug of danger, 192, 200. be ready to cast off when necessary, 201. have proper lights exhibited, 201. INDEX. 643 Tua AND TuW — continued. give order to slip wlion necessary, 201. special towage contract, 203. as to putting tow lino on hoard tug, 200. rules as to towage in the Tyuo, o'JI. Tees, 574. Thames, 576, 584. Turkey, ships of, do not use bell, 395, 541. Tyne, special rules of navigation for, 589. pilotage in, 274. coUision in, 513, 524. Uncertaixty, as to the other ship's course, 352, 413, 451. Under "Way, meaning of the term, 366, 375, 396. in improper weather, 515. ■whether fault of master or pilot to be so under -way, 244, 250. getting under way, precautions before, 509, 519. Underwriters. See Insurance. Warping, special precautions required whilst, 514. Washington Conference, Eegulations, 548. Waterford, local rules, 592. Waterm-v^', owner liable for negligence of Thames licensed, 233. negligence of waterman engaged by pilot, 240. rules as to Thames, 583. Wearing, instead of tacking, 510. ship ahead when wearing is not being overtaken, 462. Whistle, steamship to sound, in thick weather, .\i-t. 12. .395. signals by, indicating alteration of course, Ai't. 19. .455. rules as to whistling signals in Thames, 580. departure from Regulations dictated by, 494. AViLFUL Damage, by master, owner not liable for, 09, 223. 64:4: INDEX. WiXDiXG River, navigation of. See Narroiv Channel ; Rivers. "Wreck, damage by sunken, 96—99. duty of harbour authority to remove, 97. ,duty to light and buoy, 97, 361. Writ. See Practice. Wkoxg-doer, actual wrong-doer primarily liable, 66. no limitatiou of his liability, 67, 171. shipowner's remedy over against, 72. shipowner jarmdyac2e employer of, 72. liability of joint wrong-doers, 103. contribution between co-owners, 104. liability in case of damage by .Queen's ship, 102. not purged by payment of statutory liability, 177. liable notwithstanding insurance, 123. Wroxg-doing Ship, personification of ship, 75 seq. See Ship ; Liability. identification of, 319. 'i PEI^JTED BY C. F. 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