Cfnrnrll 2iam ^rl^aal lOibract} XD 1825i°9T """"""^ Lfbrary Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022403871 THE ADMIRALTY LAW COLLISIONS AT SEA. KICHARD LOWNDES. LONDON : STEVENS AND SONS, 26, BELL YARD, LINCOLN'S INN. ■ffiatD aSootselltrs atiU pu6Itsl[)erB. 1867. FRIHTBD BY C. W. STKVBNS, 5 GBEAT QOEBN STBBET, LINCOLN'S INN FIBtDS, W.C PREFACE. A BOOK wliich, in small compass, should set forth the law of collision, in the plainest language, so that, whilst a careful reference at every point to the original authorities should render it serviceable to members of the legal profession, it might at the same time be suitable for the reading of ship- owners, and, at any rate, the more instructed class of ship-captains, could not fail to be useful, if not in diminishing the frequency of collisions, at least as tending to prevent hopeless litigation afterwards. To write such a book was the object I proposed to myself. I am sensible of many deficiencies in the execution, for some of which I may perhaps be allowed to plead want of leisure. Such as it is, I can only hope that this little volume may be found of some service, in the absence of anything better of the same kind. It may reasonably be expected, without any merit on the Author's part, that such a book, written at the present time, should be pervaded by a uniform spirit of liberal and comprehensive equity. For it must consist mainly of a digest IV PREFACE. of the judgments of Sir Stephen Lushington. The thirty years during which that distinguished person has presided over the Court of Admiralty have witnessed a development of maritime com- merce absolutely unique in history, and, with it, a correspondingly unique expansion of maritime law. It has been a singular felicity which has given us, during this whole period, a judge endowed with the breadth and flexibility of mind requisite for adapting the law maritime to this extraordinary growth of commerce, and the change of circum- stances to which it has given rise. This book was on the point of publication, when there appeared a volume of Admiralty Decisions, arranged under heads, with .the title of " The Eule of the Eoad," by Mr. Wilham Holt. The additional matter it supplies comes to me, unfor- tunately, too late to be arranged under its proper heads ; and I can, therefore, only set it down in this place as an Addendum. The countries which have given in their adhe- sion to the English statutory regulations with regard to steering rules, lights, and fog-signals, are — Austria, the Argentine Republic, Belgium, Brazil, Bremen, ChiH, Denmark Proper, the Re- public of the Equator, France, Greece, Hamburg, Hanover, the Hawaiian Islands, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, the Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, the Roman States, Russia, Schleswig, PREFACE. V Spain, Sweden, Turkey, the United States, and Uruguay (a). Although Queen's ships do not fall within the terms of these Eegulations, it appears that in- structions are issued, under the sanction of the Lords of the Admiralty, to those in charge of Her Majesty's vessels, which are precisely in accordance with those regulations. (&) A vessel which overtakes another, and which, by the statutory rules, is bound to keep out of the way of the vessel overtaken, has the option of doing so either by porting or starboarding, according to circumstances (c). To determine the important question whether a vessel is meeting another " end-on, or nearly end-on," or is crossing at an angle, the court held, in two cases, that, before a steamer can be con- sidered as crossing the course of another, so as to be excused from porting her helm, there must be a difference of not less than three points in their courses (d). This, however, is not to be taken as an inflexible rule of law ; for the question, whether two steamers are " meeting end-on, or (a) Holt, 2. See post, chap. 10, p. 186. (6) H. M. &. Supply, Holt, 190. (c) Great Eastern, Holt, 171 ; Evangeline, Holt, 224. (cl) Stork, Holt, 153. Fingcd, Holt, 160. Vi PKEFACE. nearly end-on," so as to involve the risk of collision, must in every instance be a question of fact, depending on the circumstances of the particular case (a). Supposing that a ship, whose duty it is, on being approached by a steamer, to hold on her course, improperly changes it, it still remains the duty of the steamer to avoid her if she can ; failing which, both will be held in fault (6). With regard to lights, — a ship has been held in fault because the in-board screens of her side- lights only projected one foot, so that both red and green Hghts were visible at the same time, and because her lights were so placed as to be obscixred by her rigging (c). A panic amongst the seamen, not unreasonably occasioned by a collision at night, may, it appears, be regarded as an excuse for their not subse- quently using aU the means which were reasonably within their reach, in order to save their vessel, or diminish to the utmost the damage done by the collision (d). I must likewise express my regret not to have (a) Stork, in P. C, Holt, 154. (6) Oscar, Holt, 233. (c) Ladi/ of the Lake, Holt, 38. (d) Lotus, Holt, 183 ; Lena, Holt, 216. PBEFACE. VU sooner seen a pamphlet, just published by Mr, Harper, of Lloyd's, called " The Rule of the Road for Steamers," which contains some important criti- cism and useful diagrams. In addition to the regular Admiralty Reports, I have availed myself of the excellent Reports of Admiralty judgments given in Mr. Mitchell's Mari- time Register, which appear immediately after the judgments delivered, so that the law of collision may be considered as brought down almost to the present day. I desire also to express my acknow- ledgments to Mr. WilHam Byrth, of the Middle Temple, for valuable suggestions and assistance. liveepool anu london Chambees, Liverpool, May 29, 1867. TABLE OF CONTENTS. mTEODUCTION. General principles of liability for collision damage . . 1 Page CHAFIEE I. STEEEING RULES FOR SHIPS AT SEA. Subject divided between common and statutory law . . 11 Section I. — Common Sea Law. Common sea law founded on custom and equity . . ib. SHps meeting end-on pass by porting helm . . . 13 Ship going free makes way for closehauled ship . . 14 When both closehauled, port-tack ship gives way . . ib. Eules for ships crossing at an angle . . . .15 Summary of common sea-law rules . . . . . 16 Points left imdetermined in these rules . . . .17 Section II. — Statutory Eegulations. Extent of statutory jurisdiction . . . . . . 20 Eules introduced by the first Merchant Shipping Act . 21 These rules now superseded . . . . . . 22 Present statutory rales ib- Points of difference betiveen these amd the common sea law 24 X CONTENTS. Page Effect of exceptional circumstances . . . . .26 Porting the helm not always enough 27 Time when the helm is to be ported .... ib. CHAPTER II. STBERiNG RULES FOB STEAMERS AND SHIPS IN TOW, General principles . . . . . . . . 28 Decisions previous to the published Trinity Eules . . 29 The Trinity Eules of 1840 ib. Steamer to g^ve way by going astern of ship . . .31 In case of doubt, engine to be slowed . . . . . 32 Rules laid down in Merchant Shipping Act . . .33 These now superseded . . . . . . . 34 Present statutory regulations 36 Steamers having ships in tow are not bound to act like steamers going alone , . . , . . . 37 Ship towed and tug are treated as one vessel ... 38 When ship towed meets ship closehauled on port tack, both are to give way 39 Effect of statutory regulations on the above ... 43 Steamers must in certain cases slow or reverse their engines 44 CHAPTER III. STEERING RULES tN NARROW CHANNELS AND OTHER CASES. At present there is no statutory rule expressly relating to narrow channels 46 Former statutory rules . i6. Local customs cannot prevail against the rules . . 47 Exceptional circumstances, what are . . . . . 49 What is a narrow channel 51 Duty of steamers towing ships in narrow channels . . 52 Foreign ships in English rivers bound by customs ema- nating from English statutes 54 COM-ENTS. xi Steering rules in rivers with strong currents Case of ship run into -while at anchor hove to . in stays Of collisions with ships while heing launched CHAPTEE IV. WANT OP LOOK-OUT AND OTHER FAULTS. Eifect of want of look-out ..... What is a proper look-out ...... Look-out less essential for ship closehauled on the star- hoard tack ........ Going too fast in fog, as to steamers in roadsteads on high seas . saUing vessels . Moving at all in a fog may he a fault Anchoring improperly ...... Dredging down a river without precautions CHAPTER V. LIGHTS AND FOG SIGNALS. Page 56 57 59 61 62 67 68 ih. 69 72 73 74 76 77 Eules of common sea law as to lights .... 78 Statutory regulations 80 as to Hghts for steam ships .... 82 tugs .... 83 steam ships .... ih. small vessels . 84 ships at anchor . ih. fishing smacks and hoats . 85 Cases explaining terms used in statute 86 Of the onus prdbandi as to carrying lights 87 Excuses for not shewing a light 89 Of the manner in which the position of lights seen must affect the steering 92 Eules for fog signals . .... , 96 XU CONTENTS. CHAPTER VI. INEVITABLE ACCIDENT. Page Definition of 98 Examples : shifting of lights, from rounding-to, to come to anchor . . . • . . . 99 sudden change of position on the part of a third vessel ib. jamming of cable at the moment of letting itgo 100 missing stays ib. fog, suddenly coming on . . . . . ib. CHAPTER VI. COMPULSORY PILOT. General principles .102 Older decisions on this subject ib. Cases establishing the nonliability of the shipowner for faults of pilot taken compulsorily . . . ,104 To excuse the ship, the fault must be that of the pilot solely 106 What acts are treated as those of the pilot solely . .107 In what cases master ought to take control of ship out of pilot's hands ......... Ill Pilot ■who .must be paid for whether taken or not is treated as compulsory 114 General legislative rules as to pilotage . . . . 115 Vessels merely passing through a pilotage district may not be bound to take a pilot . . . .118 Exemptions created by the General Pilot Act . . 119 Pilotage certifigates for masters and mates . . 121 CONTENTS. XUl Special local legislation : Page 122 126 131 135 136 137 ib. 138 ih. For London Liverpool ...... Hull Newcastle-upon-Tyne .... Eequisites of a pilot's license .... Pilot is compulsory though selected from several Harbour master, if compulsory, excuses like pilot Compulsion by reason of charterparty does not excuse Of the personal liability of a pilot CHAPTEE VIIL COMPUTATION OF DAMAGES. General principles ....... Case of ship totally lost .... Ordinarily, value of ship is her value for sale . Exceptional cases ..... Case of ship sunk and raised again .... so damaged as not to be worth repairing damaged, but repairable No deduction made for improvement from repau-ing Interest on outlay allowable ..... Deduction made for exorbitant charges Allowance made for demurrage or loss of time , cost of maintaining passengers during delay packet missing her turn Case of loss of; or damage to, cargo Loss of effects of crew or passengers life or personal injury- expected salvage Compensation for loss of charter . • . Costs of resisting exorbitant salvage claim Of losses resulting from improper conduct, after collision, on the part of the injured vessel Wrongdoer answerable for the impossibility of separating collision damage from other damage 140 141 142 143 146 148 149 150 153 ib. 154 155 156 157 158 ib. 159 ib. ib. 160 164 XIV CONTENTS. CHAPTER IX. LIMITATIONS OP LIABILITY. Limitation by insufficiency of property liable — Property liable to arrest. The ship freight Advance freight not liable .... Freight liable without deduction of crew's wages Limitation by Act of Parliament Old limit. Value of ship and freight Limitation does not apply to costs nor to interest Present limit. £8 and £15 per register ton . Eule as to tonnage of steam ships Each collision to be treated separately Kule of apportionment where seyeral claimants Page 167 168 169 ib. 171 172 174 ih. 176 ib. ih. CHAPTER X. HOW PAR FOREIGN SHIPS COMB WITHIN STATUTES. Principle — distinction between British waters and high sea 178 Illustrations — as to steering rules , . ; . . 179 lights ib, right of recovery when both ships in fault 180 limitation of liability . . .182 What is being " on the high seas " 183 System of reciprocity introduced by the Merchant Ship- ping Amendment Act, 1862 . . . _ 185 Countries which have given in their adhesion . . . 186 The statute acted on, as towards foreigners, in the Court of Admiralty jgir CONTENTS. XV CHAPTER XI. JURISDICTION OF THE ADMIRALTY AND OTHER COURTS. Admiralty Court now has jurisdiction ia all cases of col- lision ......... What is a "ship " within the statute Of the right of procedure against Queen's ships . Of the procedure in personam ..... Jurisdiction of the Common Law Courts Court of Chancery Of the transfer of suits from Common Law to Chancery After suit at Common Law, may proceed in Admiralty And conversely ........ Action may be transferred from Court of Session Admiralty Court Jurisdiction of inferior Courts ..... to Page 188 190 ib. ib. 191 192 193 ib. 194 ib. ib. CHAPTER XII. PROCEDURE IN THE ADMIRALTY COURT. Arrest — Rules relating to Appearance — Effect of letting a case go by default Mode of entering an appearance Of appearing under protest BaU — ^regulations as to Extent of liability of sureties Effect of allowing time to the principal Security to be given to meet a cross-action costs Preliminary Acts, regulations as to Pleadings, regulations as to Principles of— all facts relied on must be set forth from the outset What facts should be thus set forth . 196 198 ib. ib. 200 ib. 201 ib. 203 204 205 ib. 206 XVI CONTENTS. Page The court 'will proceed only secundum allegata et probata . . '.. . . . . . 207 This rule applies only to the party on whom lies the onus i^rohandi . . . . . . . . 208 How far admissions in pleadings are conclusive . ib. Consolidation of actions ... . . . . . ib. Cross actions — rules with regard to . . . .210 Proofs — modern introduction of viva voce evidence . . ih. Different-kinds of evidence admissible by statute . ib. Present rules of the court as to evidence . . . 211 Admissibility of evidence . . . . .212 Cases relating to the o?!2« p-o6arec?i . . . . . 214 Hearing and decree . . . . . . .215 Of the Trinity Masters ib. Reference to registrar and merchants . . . .216 Appeals to the Judicial Committee . . , . . 218 are determined upon the original evidence . .219 Costs, rules as to . . . . . , . . ib. Effect of improper delay in Lostituting suit . . . 222 TABLE OF CASES CITED. A. Page Admiral Boxer .:. 35, 51, 107 African Steam Ship Company V. Swanzey Agricola Alexander Alexander Wise Alited Amalia... Amazone Arm Ann and Mary Ar^o Athol Atlas 1 Attorney-General v. Case Aurora 144 114, 130 168 17 216, 217 174, 187 184 207 18 109, 111, 114 190 107, 108 104, 115 4 Barker v. Highley Baron Holberg... Batayier Beilby v. Eaper Benares Beta Betsey Gaines ... Bilbao Birkenliead Black Diamond Prince ... Blenheim Bold Buccleugh Borussia Bothnia 201 ... 17, 104, 214 ... 59, 107, 137 133 '.'.". 78,"l70, 174 137 159, 212 ... 138, 190, 199 71 29 ... 156, 220, 221 63 6, 194 76, 109, 111, 179 206, 207 C. Calla 90 Page Calypso 210, 220 Cameo 203 Canada 155 Canadian 206 CarlJohan 171, 182 Carolus ... 104 Carrier Dove ... 109 Oarruthers v. Sydebotham 104 Ca^tilian 18 Castor 220 Catherine of Dover . . . 213 Celt 4 Ceres ... 71, 94 Chance 214 Christiana 103, 190 City of Carlisle ... 86, 87 London 79, 90, 213 Clara 177, 191 Clarence 156, 217 Cieadou 19, 39, 183 Cleopatra ... 35,96 Clyde 142, 217, 221 Cognac 37 Columbine 215 Columbus 148, 157 Commerce ... 18, 213 Cope !). Doherty 181 Courier 190 Cumberland 158 D. Despatch De Vaux v. Salvador Diana Dobree v. Schroeder Dock Company of Kingston- upon- Hull V. Browne Dowell V. General Steam Navi gation Company 44, 71, 214 5 107, 108, 189 144 133 XVIU OASES CITED. Page Druid 7 DucheBse de Brabant 201 Duke of Leeds w. Amherst ... 164 Duke of Sussex ... 31, 43, 48, 221 Dumfries 18, 179 Duna 170, 174 Dundee 168,174 Earl of Auckland East Lothian ... Ebenezer Eclipse Eden Egyptian Eliza Elizabeth Emma Empress Eugenie Eolides Ericcson Europa Eyangelismos ... Fanny Buck Flavia Gioja 'Flora ... Plying Fish Foyle ... Friends... Fyenoord ... 121,122,125 19, 206, 208, 220 ... 73, 206, 219 29, 71, 79, 91, 219 114 ... 76, 165, 166 146, 169 179 69, 214 148, 220 108, 161 22 6,73 186 88 169 162 213 26,49 56, 184 Grill V. General Iron Screw CoUier Company Gustav Page 5 186 G. Gazelle ... 17, 33, 48, 71, 151, 155 General De Caen ... 106,138 General Iron Screw Collier Company V. Schurmans ... 183 General Navigation Company V. Tonkin 26 George 108 George Arkle 92, 206 GipseyKing 43,108,111 Girolamo ... 74, 103, 107, 111, 189 Gladiator 205 Glaholm i;. Barker ... 159,176 Glaumire 26 Glory 214 Grainger V. Martin 145 Griefswald 199 Halcyon 22 Hammond v. Rogers ... 110, 113 Hand of Providence . . . 50 Hare v. Seckington . . . 151 Harmonia 168 Harriet ... 17, 201 Hay D.Le Neve 5 Hebe 151, 154 Hector 18 Hope 14, 77, 172 I. Ida ... 7,199 Ilos 200 Immaganda Sara Clasina 27 Independence 22, 38, 42 Inflexible ... 22, 153, 155, 160, 205 Iron Duke 71,78 Iron Master 146,218 Itinerant 73, 101, 220 James 27, 59 James Watt 17,32,72 Johann Friederich ... 190, 202 Johanna StoU ... 1, 106, 115, 130, 220 John and Mary 193 John Dunn 174 Julia 43,44,109,218 Juliana 79, 88 Jupiter 18 Kalamazoo Karla . . . Killamey Kingston-by-S La Plata Laconia . . . Lady Anne 201 222 ... 122,135,208 27, 37, 43, 100, 163 27,63 195 17 CASES CITED. XIX LadyHavelock Ill Leda 86,190,221 Legatus 160 Leicester «. Logan 174 Leith 49 Leo 168 Lidskjalf 77 Linda 161, 164 Linda Flor 170 Livingstone 90 Lloyd v. General Iron Screw Collier Company 5 Lochlibo ... 80, 99, 111, 112 London Packet 17 Lord Seaton 213 Lucema 27 M. Mseander Malvina Manchester Mangerton Maria Mary Caroline Mary Stewart Massachusetts Mellona 68 Mexican Milan Mobile Monarch Montreal Morrison v. General Navigation Company N. Navigator Nelson v. Couch Neptune the Second Neptunus Night Watch ... Nimrod North American 52, 96, 218 190 213 22, 36, 87, 212 106, 112, 114 174 214, 215 108 1, 163, 201, 222 5 ... 2,5 18, 100, 107 5, 216, 219 220 Steam 89 219 194 102 206 ... 43,44 ... 49, 220 207, 210 0. Olivia Paetolus Palestine 79,86 163 Panther Peerless Pensher Pepperell Percival Forster Perth Plank V. Gavile Public Opinion Q. Queen of the Orwell Richmond Kob Eoy Robert Ingram. . . Robert Pow Rose Ruby Queen ... ... 51, 89 100, 108, 195 163 73 58 70 164 69 189 201 96 91 44 17, 70, 78 ... 6, 212 Saint Lawrence 219 Saracen 177 Sarah 190 Saxonia 184 Schwalbe 107, 213 Sea Nymph 61 Sea Queen 130 Secret 43 Seine . 56, 208, 220 Seringapatam ... 18, 203 Shannon 17, 29, 99 Smyrna 57 Sophie 203 South Sea 149, 157 Speed ... J6, 215 Stettin 121 Stevens v. Gourley 19 Straker 1). Hartland .. 174 Surprise 24 Swallow 221 Switzerland 206 Sylph ... 35,96 Symonds v. Pain 44 Tatham v. Cooper Temora 139 122, 220 XX CASES CITED. Test Ticonderoga ... iopaze Transit Traveller Tribune ... Tyne Improvement Commis- sioners v. General Steam Navigation Company Tynemouth Page 18 6,138 21 60 18 171 136 86 U. Ulster ... United States Unity ... Urania ... 218 66 50 87, 139 Vaux v. Schaffer 219 Yotli^sliireiiiaii "Vernon 103 Vianna 65 Victor 8 Victoria 16, 73, 80 Virgil .. 73,98,206 ZoUverein Vivid ... Volant ... Volcano... Vortigern W. Page ... 71,88 172, 191, 203 76, 190, 215 205, 209, 210 W.V. Moses ... 89 Wesley 126 "Wild Hanger ... 158, 183 Wild Rose ... ... 76,97 William Hutt ... . 80, 187, 209 Williams 1). Gutch ... 16, 179 Wilson w. Dickson 143 WirrMI 68 Woodrop-Sims 5, 14, 16 IS9 ....86,181 THE ADMIRALTY LAW COLLISIONS AT SEA INTEODUCTION. The importance of diminishing as much as possible the risk of collision between ships at sea, which involve so much danger to Hfe as well as property, has led, in perhaps every civilised community amongst whom navigation is practised, to the estab- lishing of certain rules for determining the courses to be pursued by ships when they are approaching or passing one another, the watch or look-out to be kept in order to prevent the meeting unawares, the lights to be carried in the dark, and other matters of a like nature. Such rules, to be useful, must be uniform, not varying with the nationality of the ship. Hence, by common consent, there has grown up in the course of time a body of general maritime customs, regulating matters of this kind (a). The (a) This customary law may be termed " international " law, not perhaps quite correctly. " General acquiescence by all civilised S.tates is what constitutes international law " (per Dr. Lushington, Johanna StoU, 1 Lush. 308).; B 2 INTRODUCTION. rules thus established are enforced, it may be said, in aU countries, by inflicting on those who infringe them the obligation to make good the damage occasioned by their wrongdoing to the vessel with which their own has come in contact. These customary sea rules, and the penalty thus provided for the breach of them, are enforced usually in Courts of Admiralty, or courts having analogous powers. In this country, the proper tribunal for that purpose is the High Court of Admiralty in England and Ireland, and the Court of Session in Scotland. The Court of Admiralty proceeds upon principles of enlarged equity, holding itself very much eman- cipated from the technicalities of the common law. Its principles, as will be seen, differ in some respects widely from those adopted in the latter courts. In the interpretation of statutes, the rule is that the Admiralty Court follows the courts of common law ; and Dr. Lushington on one occasion said that the court would always decide in consonance with a series of cases adjudged at common law ; but would not be bound by one or two cases, especially if they had been doubted by the profession (a). The court implicitly obeys a decision of the House of Lords, or the Judicial Committee of the Privy Council ; which latter constitutes a Court of Appeal from the Court of Admiralty. With these limitations, how- ever, the Admiralty Court holds itself free to pro- ceed entirely on principles of its own. (a) Milan, 1 Lush. 402. INTRODUCTION. 3 There is a very singular rule, general and of great antiquity, and now firmly settled as the law of the Court of Admiralty on this subject, yet scarcely to be justified on any grounds of natural equity. It is that, when both the colliding vessels are in fault, each is to pay one half of the damages suffered by the other. This rule has been steadily opposed by the Judges of the English common law courts, who hold that a wrongdoer cannot take advantage of the circumstance that the party proceeded against is likewise in fault ; but, supposing that his own fault has contributed to the collision, must bear his own loss (a). An attempt was made to enforce, to a certain ex- tent, the doctrine of the common law courts by legislation. The Merchant Shipping Act of 1854 (17 & 18 Vict, c. 104), after laying down certain statutory regulations, as to steering, carrying lights, and the like, enacted (s. 298) that in case of collision resulting from the non-observance of such rules, the wrongdoer should not be en- titled to recover any damages from the vessel pro- ceeded against. It was found, however, that the ancient customary rule was too strong for this statutory innovation. In the first place, it was determined in the Admiralty Court that this legis- lation was not binding as against foreign ships run into by either foreign or English ships on the high seas ; and then, on principles of reciprocity, that it was not binding on English ships making claims on (a) Bowell v. General Steam Navigation Company, S E. & B. 195. b2 4 INTRODUCTION. foreigners for such collisions (a). Then it was found that a very inequitable result was produced by the change ; for, when both ships were in fault, one for violating a statutory provision, and the other for breaking a sea rule existing independently of the statute, the latter could recover half dam- ages from the former, while the former had no cor- responding claim on her part (6). Thus the change of law was made partially inoperative, and its effect was at once to complicate the law, and, in many cases, to work a great injustice. Accordingly, in the Merchant Shipping Amendment Act (25 & 26 Vict. c. 63, s. 29), the clause above referred to was repealed, and the old rule of dividing damages was re-established (c). As the Admiralty law now stands, therefore, the rule is this : if the vessel pro- ceeded against is solely in fault (d), that vessel is liable in damages to the other ; if both are in (as) See post. c. 10. (6) Aurora, 1 Lush. 329. (c) See Palestine, 13 W. E. 111. (d) " In fault " here means guilty of a fault which has contributed to the collision. A ship may be in fault otherwise, even in a matter connected with the collision, — as by not rendering assistance to the other vessel to save life after the collision, — and yet, apart from statute law, recover entire damages against the other {Celt, 3 Hagg. 321). It is to be noted, however, that, as regards the illus- tration here given, the Act 26 & 26 Vict. c. 63, provides (s. 33), that in every case of collision between two ships, it shall be the duty of the person in charge of each ship, if and so far as he can do so without danger to his own ship, to render to the other ship, her master, crew, and passengers (if any), such assistance as may be practicable and as may be necessai'y in order to save them from any danger caused by the collision ; and, in case he fails to do so, and no reasonable excuse for such failure is shown, the collision shall, in INTRODUCTION. 5 faultj each party may recover from the other one half of his damages ; if neither are in fault, the collision having resulted from inevitable accident, each vessel bears its own loss (a). If the cargo in one ship has been lost or damaged by a collision, the owner of it may recover the full amount of his loss if the other ship has been solely in fault, or one-half if both ships have been in fatdt : while he is not liable, in the latter case, to contribute anything towards the damages of the other ship, because the master and crew, who are the parties directly in fault, are not his servants, but those of the shipowner (&). For the remain- ing half damage, — or for the whole damage, in case the ship in which his goods are laden is solely in fault, the cargo owner has his remedy at common law against the owner of the ship (c). This liability, to make compensation for damage done by collision resulting from faulty seamanship, the absence of proof to the contrary, be deemed to have been caused by his wrongful act, neglect, or default. The effect of this clause is that, where there has been such neglect to render assistance after a collision, the burden of proof that she was not the ship in fault is thrown upon the vessel so neglecting {Queen of the Orwell, 7 L. T. N. S. 839; 8 Mitchell's Register, 240). But to make out that one colliding vessel has neglected to render assistance to the other, it is in general necessary to show that assistance has been applied for, or that the need of it must have been evident (^Mexican, 9 Mitch. 1647). (a) Hay v. Le Neve, 2 Shaw's Scotch Appeal Ca. 395 ; De Vaux V. Salvador, 4 Ad. & E. 431 ; She^s Abbott, p. 202 ; Monarch, 3 Hagg. 328 n. ; Woodrop-sims, 2 Dods. 85. (6) Milan, 1 Lush. 398. (c) Lloyd V. General Screw Collier Company, 12 Weekly Reporter, 882 ; Grill v. Same, 14 Weekly Reporter, 893. 6 INTKODUCTION. is, in the language of the Admiralty Court, regarded as a Hability of the ship, as a res. The ship in fault is Hable to arrest, and either must be bailed or win be sold to satisfy the demand of the party aggrieved. This liability follows the ship even after a transfer, and although no notice of the col- lision has been given to the purchaser : it not being permitted to the owner to evade his liability for the acts of his servants by a subsequent sale of the ship (a). In one case, where an interval of four years had elapsed between the collision and the commencement of proceedings, and in the interim the ship had been sold, it was held that the ship was still hable to arrest, it appearing that the long delay had not arisen from any laches on the part of the claimant, but from a. difficulty in finding and arresting the ship (6). And, although the persons immediately in fault for the collision may not be the servants of the shipowner, as, when the ship has been demised to a charterer with power to appoint his own master and crew, the ship is still liable to arrest for the collision damage (c). So, where a yacht had been placed for sale in the hands of a yachting agent, who took charge of her for a cer- tain sum per week, and employed servants of his own to moor her, the yacht was held liable to Admiralty process for a coUision caused by the neghgence of those servants (d). (a) Bold Bucdeugh, 3 W. Eob. 229. (6) Europa, 8 Mitch. 240. (c) Ticonderoga, Swab. 217. (d) Ruby Queen, 1 Lush. 266. INTEODUCTION. 7 These decisions, however, must not be considered as affecting the principle, that the primary ground of liability for collision damage is, the liability of a master for the misconduct of his servants while in his employ. This liability extends to acts of negli- gence and errors of judgment, but not to wilful and criminal misconduct. Hence, where the master of a Liverpool steam tug, having been irritated by some dispute about his demand for towage, wilfully drove his tug violently several times against the quarter of the sloop he had been towing, thereby causing her considerable damage, it was decided in the Admiralty Court that the tug was not liable to arrest on that account (a). The same principle was acted upon in a subsequent case, when the master of one vessel wilfully cut another adrift from her moorings, in order to get inside of her (6). " In all causes of action," said the learned Judge of the Ad- miralty Cotirt, " which may arise from circumstances occurring during the ownership of the persons whose ship is proceeded against, I apprehend that no suit could ever be maintained against a ship when the owners were not themselves personally hable, or where their personal Habihty had not been given up, as in bottomry bonds, by taking a Hen on the vessel " (c). Thus, in result, the liability of the ship for col- lision damage amounts to this, — that the ship. (a) Druid, 1 W. Eob. 391. (6) Ida, 1 Lush. 6. (c) Druid, I W. Eob. 399. 8 INTBODTJCTION. together witli her earnings on the voyage, that is, the freight or balance of freight due at the termina- tion of the voyage, supposing the ship to be arrested at that point, constitute a species of pledge or material security for the payment by the shipowner for the damage caused by the misconduct of his servants while in his employ, — a pledge which the shipowner cannot so ahenate as to defeat the rights of the injured party. It may be mentioned in this place that cargo on board, belonging to the owner of the ship, is not liable to arrest for coUision damage ; the res subject to such liability being only the ship and freight (a). There is occasionally a difficulty, after a collision at sea, in identifying the ship coUided with. Sup- posing that, by mistake, the wrong ship has been arrested, the Court of Admiralty, making allowance for this difficulty, will not give damages for the improper arrest, unless bad faith or gross negligence be proved (h). Such, then, are the general principles involved in the liability of one ship to another for colHsion damage. In the following chapters we shall have to consider, in detaU, the mode in which these prin- ciples are to be worked out in practice : beginning with those regulations which determine the manner in which ships are to be steered or otherwise handled when they are so approaching one another as to be in danger of collision, and the look-out (a) Victor, 1 Lush. 76. (6) Evangdismos, Swab. 381. INTRODUCTIOJS. 9 which is to be kept, and the lights which are to be carried, ia order that those on board either vessel may have timely warning of the presence of the other : then proceeding to consider those grounds of non-liability which may be classed under the head of inevitable accident, or the directions of a pilot taken on board by compulsion of law : after which will come questions of amount of HabiHty, computation of damages, limitation of liability by statute, and the question to what extent foreign ships, meeting on the high seas, are amenable to the municipal rules laid down in British Acts of ParHament ; and, in. conclusion, matters of juris- diction and the form of .procedure. CHAPTEE I. STEERING RULES FOR SAILING VESSELS AT SEA. The subject to be considered in this and tbe two following chapters is, in what manner should the course of a ship be directed, upon approaching another ship, for the purpose of avoiding a collision. It will be necessary to examine this question under two main divisions. We must first enquire how the matter stands according to the common law of the sea, independent of British statutory directions ; and, secondly, to what extent this common sea law is modified by statute. This division may appear somewhat artificial, but it is unavoidable ; because, as will be shewn more at large in its proper place, there are some cases, as, for example, when two ships of different nations meet on the high seas, to which British legislative enactments are inapplicable, the case lying outside of the limits of statutory juris- diction ; whUst in other cases it is essential that the statutes should be observed. Sect, I. — The Common Sea Law. The Court of Admiralty, exercising jurisdiction over causes of action which arise upon the high seas, and exercising it over, or for the benefit of. 12 STEERING RTJIiES FOR foreign as well as Britisli stips, is, from the nature of the case, obliged in many instances to proceed upon principles of natural equity, wHch are sup- posed to be independent of municipal law, and to be held in common by all mankind. There are likewise certain customs, which have grown up insensibly, or have been adopted by a kind of im- memorial convention, amongst seafaring men of different countries ; such, for example, as the weU- known rule that ships which meet one another on the high seas shall keep to the' right hand instead of the left ; a rule which, it is evident, is in itself purely arbitrary, though it is indispensable, for the avoidance of collisions, that there should be some rule, and that it should be observed by the mariners of all countries without exception. The province of the Court of Admiralty is, as between foreigners on the high seas, to administer and enforce these general customs, and to develope them, in case of need, according to these principles of universal equity. To this body of customary and equitable law, thus independent of local or municipal regula- tions, is given the title of " The Common Law of the Sea." DiYision of We are now to consider, then, in what manner, t e su ject. according to this common law, a ship's course is to be directed, when she happens to approach some other vessel, whether at rest or in motion, so that there is a danger of collision. This question may be considered, first, with reference to two vessels which meet where there is ample sea room, and when both are in motion ; and here the question may be SAILING VESSELS. 13 subdivided, according as the vessels are ships under sail, steamers going alone, or steamers having ships m tow. After these cases have been disposed of, it will be necessary to examine the case of vessels which meet in rivers or narrow channels, where the course to be adopted may be affected by the exigencies of that particular navigation. Then comes the case where one of the vessels is stationary, or so nearly stationary that for practical purposes she may be regarded as a fixed object, that is to say, when she is at anchor, or hove-to, or in stays. Finally, we shall have to consider the effect of exceptional circumstances, by which the application of the ordinary rules may have to be modified. We are to begia, then, with the case of two ships which meet or cross one another's track whilst both are under sail : and, first, with the case in which they meet end-on, that is to, say, in courses which are directly or nearly opposite to one another. The rule in this case is, that the vessels are to sMps meeting pass one another so that each shall keep to its own by'^porting the right hand. This resiilt is obtained by putting the 'i^^™- helm of each vessel to port. It is perhaps neces- sary to explain to the non-nautical reader that larboard or "port" means left-hand, and " starboard " right, and the effect of putting a ship's tiller to the left, or " porting the helm," is to make the ship turn towards the right. Thus, where there is danger of collision, the first impulse of a sailor, and, in the majority of cases, the proper measure to take is to port the helm. The exceptions to this rule, however, are of considerable importance. 14 STEERING RULES FOR Ship going free makes way for close- hauled ship. When both are eloae- hauled, ship on port tack makes way for the other. C-. <^ In the first place, when a ship is closehauled, that is to say, sailing as near to the wind as she can, the inconvenience to such a vessel of altering her track is so much greater than when she is sailing before the wind, or, as it is termed, "going free," that, by an ancient general custom, when a ship closehauled is met by a ship going free, the duty of making way so as to avoid a collision is cast exclu- sively upon the latter. Thus I ^^ in the accompanying diagram, where the wind is blowing from the North, "and the ship A is sailing towards the North-east, " li^ggiog the wind," or " closehauled," or " sailing near the wind," that is to say, keeping a course as Northerly as the fiUing of her sails will permit, while the ship B is coming down from the North- east, having the wind abaft her beam, the former vessel is at liberty to continue her course without altering her helm, while the latter must put her helm to port, and make room for A by running along the track B C. The reason is that, by porting, A would lose ground which might not be regained for a great length of time, whilst B can quickly return to her original track, having the wind in her favour, or "abaft the beam" (a). When both the ships which meet are closehauledj then that which' is on the starboard tack continues {a) Woodrop-sims, 2 Beds. 86. It is no excuse for a breach of this rule that the crew of the "free" ship were at the time on the yards, reefing sails {Hope, 1 W. Bob. 156). SAILING VESSELS. ' 15 ter course, and that which is on the port tack gives way, still by porting her helm. This rule is not arbitrary, but is founded on the necessity of the case, as will be seen upon ex- planation. The vessel A is on | the port tackj-that is, having a ^ g the wind on her port or left ^tf^"'--. "" <^;Vj hand side, looking, as the ^^ helmsman looks, from the stern forwards. The vessel B is on the starboard tack. It is easy for A to give way by porting her helm, because the effect of doing so is to go off before the wind, that is, to have the wind more in her favour than before, whereas, if B were to port her helm, her head would be brought up against the wind, so as to render her unmanage- able ; for she is supposed to be already sailing as near the wind as is practicable. The duty of giving way, therefore, is in this case imposed exclusively upon A, the vessel on the port tack. These ai"e the leading principles of the " rule of the road," as applicable to ships under sail when they meet end-on. When, instead of meeting end-on, they are cross- SMps crossing ing one another's tracks, as when one is sailing from North to South, and another from East to West, the rule of porting the helm is no longer in all cases applicable. It is impossible for two ships which are both closehauled to approach each other, so as to involve risk of collision, in any direction but the one already pointed out ; the course of each ship, relatively to the wind, being determined by the fact that she is closehauled. The only cases we at an angle. 16 STEERING RULES FOR Free ship is to make way have here to deal with are, where one is closehauled and the other going free, or where both are going free. In the former of these cases, the duty of astern. .^' "^ b^ going ^'^' making way for the closehauled ship is still cast on the vessel going free, but she is to make way, not necessarily by porting her helm, but by going astern of the closehauled ship. Thus, if A is a ship closehauled on the star- board tack, and B a ship going free, the wind being from the North, B is to make way for A by going astern of her, which, in the case given in the diagram, must be by starboarding her hehn, so as to carry her along the track B C. The following, then, are the common law rules of tlie sea as to steering, — ^that is to say, these are the rules as they exist independently of statutory enactments. Eule 1. — ^When two ships, each having the wind free, meet end-on, or nearly end-on, each is to port the helm (a). Rule 2. — When two ships, one of which is closehauled and the other going free, meet end-on, or nearly end-on, the ship which is going free must make way for the other by porting her helm (6). Rule 3. — When two ships, both closehauled, Summary of rules. (a) Williams v. Gutch, 14 Moore P. C. C. 202 ; Victoria, 9 Mitch. 751. (6) Woodrop-sims, 2 Dods. 86 ; Speed, 2 W. Rob. 229. SHIPS AT SEA. 17 meet end-on, or neaxly end-on, the ship which is on the port tack must make way for the other by porting her helm (a) . Rule 4. — When a ship which has the \NT.nd free is, not meeting end-on, but crossing the track of a closehauled ship, the former is to give way to the latter by going astern of her (6). These Bulee, it wiU be observed, have two points undetermined, viz. : what should be done by the vessel which is given way to, in the second and third cases ; and what is to be done when two vessels, both having the wind free, meet at different angles. Generally, a closehauled ship on either tack The ship to which meets a ship running free, and a ship close- ^he'f gbts hauled on the starboard tack which meets a vessel ™y ™"^* generally closehauled on the opposite tack, may, and indeed keep her ought to, keep her course, so long as the danger of collision lasts, without alteration. The only ex- ceptions that can be allowed to this rule are such as may tend to diminish the danger of collision. Thus, if a ship closehauled on the port tack meets (that is, meets end-on, or nearly end-on) a vessel, as to which it is doubtful whether she is closehauled or running free, the former, it has been decided, (a) Shannon, 2 Hagg. 174 ; Baron Holberg, 3 Hagg. 215 ; Alex- ander Wise, 2 W. Eob. 65 ; Harriet, 1 W. Eob. 185 ; Lady Anne, 15 Jurist, 18. I L i ''-^ VO (6) James Watt, 2 W. Eob. 279 ; Rose, 2 W. Eob. 1 ; Gazelle, 2 W. Eob. 517; London Packet, 2 W. Eob. 216. C 18 STEBBING BXJLES FOB ought to port her helm ; and, if she does not, will not be held excused from blame, even upon its being proved that the other ship was in fact run- ning free (a). On the other hand, if the closehauled ship is on the starboard tack, it would seem that she is always entitled, and perhaps always bound, to hold on her course without alteration (6). If, indeed, she is not sailing quite close to the wind, but can go a point or two nearer and stiU remain under command, then, if she is meeting a ship end- on, her helm ought to be sHghtly ported, so as to get as near the wind as she properly can ; {a) Ann and Mary, 2 W. Bob. 189 ; Traveller, 2 W. Bob. 197. (6) Thus, where a ship closehauled on the starboard-taok bore up and wore, she was held to be in fault. " She should," said Sir John Nicholl, " according to the well-known rule, have held on her course " {Jupiter, 3 Hagg. 321). The question has frequently been considered in the Admiralty Court, whether a starboard-taek vessel is justified in persistently holding on her course after it is evident that the doing so must lead to a collision. In favour of her doing so are urged the advantages of adhering to fixed rules, and the danger of allowing a departure from them, particularly with regard to ships at sea, on any pretext whatever ; while against this view stress is laid on the absurdity of contending that a vessel may be justified in wilfully running into another when she can avoid it. The principle to be extracted from the decisions on this head appears to be, that the starboard-tack vessel which continues in her course is so far primA facie in the right, that the proof lies with the other party to shew that she ought to have deviated from it ; and this can only be by shewing beyond doubt that she would have been safe in so deviating, whatever course the other vessel might have taken. It is rarely, if ever, that this can be proved, at any rate when the starboard- tack vessel is required to starboard her helm, or to throw herself in stays (see Commerce, 3 W. Bob. 287 ; Seringapatam, cited 11 Jurist, 998 ; Test, 11 Jurist, 998 ; Dumfries, Swab. 63, 126 ; Mobile, Swab. 73, 127 ; Eectcr, 8 Mitch. 815 ; Castilian, 9 Mitch. 1490). cross at an SHIPS AT SEA. 19 because, as in this case the other ship, whether free or closehauled, is bound to port likewise, such a measure on the part of the starboard tack ship must always diminish, and cannot augment, the risk of a collision (a). If, however, the other ship is approaching, not end-on but at an angle, then, under some circumstances, it would be a fault for the starboard-tack vessel to port ; as this might disturb the manoeuvres of the other ship, whose duty it is to go astern of her (6). When two vessels under sail, each ha^Hlng the when two wind free, are crossing each other's track, not running free meeting end-on, it does not appear that any general ^^gig*' rule, founded on the common law of the sea, can be gathered from the Admiralty Court decisions. There is, however, a statutory rule ; and it may fairly be presumed that this rule is intended as simply declaratory of existing nautical customs. This rule is found in Article 10 of the Eegulations (a) East Lothian, 1 Lush. 247. In the case of the Lady Anne, two closehauled vessels meeting were very near before they saw each other : the port-tack vessel immediately ported her helm ; the starboard-tack vessel did nothing, although she might, by slightly porting, have brought herself somewhat nearer to the wind, and so have avoided the collision ; and in this case the starboard-tack vessel was pronounced solely in fault (7 Notes of Cases, 364). This must be considered a somewhat exceptional case ; not, indeed, that it contradicts what is stated in the text ; but the great body of decisions established that the starboard-tack vessel is almost always in the right, by the common sea-law, if she holds on her course. (6) Cleadon, 1 Lush. 162. "Where a foreign vessel, closehauled on the starboard-tack, approaches another vessel at night, she is bound to keep her course ; porting may, under some circumstances, be an injudicious manoeuvre {Stevens v. Oourley, 14 Moore, P.O. C. 92.) C2 20 STEEBING RULES FOB issued in 1863 by the Board of Trade, in pursuance of the Merchant Shipping Act Amendment Act, 1862; and is as follows: — "When two sailing ships are crossing so as to involve risk of coUision, then, if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the star- board side ; but if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward shaU. keep out of the way of the ship which is to leeward." Sect. 2. — Statutory Regulations. In the next place are to be considered those modifications of the common sea law, as affecting the courses to be steered by sailing ships which meet where there is open sea-way (for the subject of river navigation or navigation in narrow chan- nels is to be treated separately), which have been introduced by Act of Parliament. Extent of How far the jurisdiction of Parliament extends, jurisdiction, particularly as regards foreign ships meeting on the high seas, is a question which will be made the subject of a separate chapter. It is enough here to say that the statutory Regulations are binding as between British ships everywhere, and as regards foreign ships whenever they encounter each other in British waters, and, in certain cases, even upon the high seas (a). (as) It is to be borne in mind throughout that the Merchant SHIPS AT SEA. 21 It is probable that the intention of tbose who framed the statutory Eegulations which are now to be considered, was, not to introduce changes in the common law of the sea, but simply to furnish a clear concise declaration of that law. It is always difficult, however, thus to codify a branch of cus- tomary law, particularly when that law is in a state of imperfect development, without making some, perhaps unioitentional, changes in it ; the words used being found to provide for cases not originally contemplated. It wiU be found that something of this kind has taken place with these regulations. In the Merchant Shipping Act of 1853 (17 & 18 Euiesintro- Vict. c. 104, s. 296), which was the first attempt to fi"°'Me?cfant codify this branch of the law, it was enacted that supping Act. "whenever any ship, .... proceediug in one direction, meets another ship . . . pro- ceeding in another direction, so that if both ships were to continue their respective courses they would pass so near as to involve any risk of a collision, the helms of both ships shaU be put to port, so as pass to the port side of each other ; and this rule shall be obeyed by . . . all saiHng ships, whether on the port or starboard tack, and whether closehauled 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 the proviso that due regard shall be had to the dangers of navigation, and, as regards Shipping Acts, and the regulations founded on them, do not apply to Queen's ships {The Topaze, 12 Weekly Eeporter, 923). 22 STEERING BULES FOB Defects of these rules. Present rules. sailing ships on the starboard tack closehauled, to the keeping such ships under command." It is unnecessary to point out the obvious defects of this clause, which, indeed, had it been practicable really to carry the clause into operation, must have either revolutionized the law of the sea, or thrown the matter into hopeless confusion. The clause was by degrees rendered innocuous by constructions put upon it in the Admiralty Court, in which a certain necessary violence was done to the plain language of the Act (a), and it has since been replaced by a clause better susceptible of being carried into effect. The Merchant Shipping Amendment Act, 1862, enacted (clause 25), that on and after June 1st, 186.3, the Regulations given in table C. of the schedule should have the force of law, but that " Her Majesty may from time to time, on the joint recommenda- tion of the Admiralty and the Board of Trade, by Order in Council, annul or modify any of the said regulations, or make new Regulations in addition thereto or in substitution therefore, and any altera- tions in or addition to such Regulations made in (a) For example, though the statute in terms seems to apply to all cases of ships approaching each other from whatever quarter, the Admiralty Court and the Judicial Committee pronounced it solely applicable to vessels meeting end-on (Inflexible, Swab. 35 ; Independence, 1 Lush. 277). The direction to port helm, given in the statute, was pronounced inapplicable to vessels closehauled on the starboard-tack (Halcyon, 1 Lush. 101). See also, as illustrating the liberal manner in which the statute was construed, the Masra- gerton, Swaib. 123,. and the Erioeson, Swab. 39. The fact is, it was impossible to carry out the statute very literally. SHIPS AT SEA. 23 manner aforesaid shaU be of the same force as the Eegulations in the said schedtde." It was further enacted (s. 26), that the Board of Trade should take certain steps for the issuing and publication of the Eegulations referred to, and of any alterations or additions that might be made, and for furnishing copies of them to any owner or master of a ship who should apply for them. The Regulations issued by the Board of Trade, m pursuance of the power thus given, are identical with those contained in Table C. of this Act, and are as foUows : — "Art. 11. — If two sailing ships are meeting end-on, or nearly end-on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other.'' " Art. 12. — When two sailing ships are cross- ing so as to involve risk of coUision, then, if they have the wind on different sides, the ship with the wind on the port side (a), shall keep out of the way of the ship with the wind on the starboard side, except m the case in which the ship with the wind on the port side is closehauled, and the other ship free, in which case the latter ship shaU keep out of the way ; but, if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward (a) i. «., the vessel on the port tack. 24 STEERING RULES FOR shall keep out of the way of the ship which is to leeward." "Art. 17. — Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel." "Art. 18. — Where by the above Rules one of two ships is to keep out of the way, the other is to keep her course, subject to the qu alification contained in the following ar- ticle." "Art. 19. — In obeying and construing these Rules, due regard must be had to all dangers of navigation, and due regard must also be had to any special circumstances which may exist in any particular case rendering a departure from the above Rules necessary in order to avoid immediate danger." Differences These Regulations, it wiU be seen, do not widely rules and the dififer from the common law of the sea. Art. 1 1 sea^iaw? seems to impose on closehauled vessels a more absolute obhgation to port the helm than that to which they are subject by the common sea law. In the case of the Surprise, where a ship closehauled on the starboard tack, meeting another vessel, did not port the helm, but continued her course, and a collision took place, Dr. Lushington, after quoting s. 296 of the Merchant Shipping Act — the Act at that time in force, — and after observing that nothing could be stronger than that enactment, and that although some persons had considered it too strong, still it was the law and must be obeyed. SHIPS AT SEA, 25 proceeded to direct the Trinity Masters that, under this section, the only question for them was, whether the ship could with safety have complied with the rule. She might have been excused for noncom- pliance if porting the helm would have occasioned immediate danger. But, he said, "if you are of opinion that the other vessel was so approaching the Surprise that there was a risk of collision, and that there was no danger in porting the helm of the Surprise, then 1 think, according to the statute, the Surprise was bound to have ported her helm " (a). It is true that this decision is based on the clause which has been repealed, but Art. 11 of the new Eegulations appears to be equally peremptory in its terms ; and if it is to be construed in the same manner, it appears con- siderably to abridge the common law right of the ship closehauled on the starboard tack to hold on her course without alteration. It can hardly have been intended, however, that a ship in such a situation should throw herself so far up into the wind as to become unmanageable : this extravagant application of the statutory rule was expressly guarded against in s. 296 of the old Act ; and, although in the later Eegulations nothing is ex- pressed on this head, yet the general terms of Art. 19 appear sufficient for this purpose. Such a ship, however, must, it would seem (under the statute), always port her hehn so as to come as close to the wind as is consistent with being under command. (a) 8 Mitch. 83. 26 STEERING KTILES FOE Art. 12 of the Regulations, laying down rules for vessels wMch cross each other, appears, so far as it goes, to be in conformity with the common sea law. It does not define in what manner one ship is to " keep out of the way " of the other, so that, it may be presumed, the general rule is applicable, that " keeping out of the way " means, for the most part, going astern of the other ship. Exceptional In conclusiou, it is to be pointed out that the stances. steering rules are, by the common sea law, as well as by Art. 19 of the above-mentioned Regulations, subject to the limitation that, in the observance of them, due regard must be had to the dangers of navigation, as well as to any special circumstances which may in particular cases render a departure fi-om the rules necessary for the avoiding of im- mediate danger. For example, a ship is not bound to follow the rule, when the doing so would lead to her running aground (a). When a collision is inevitable, it is always permitted to starboard the helm, or other- wise depart from the rule, in order to ease the blow or receive it on the strongest part of the ship (6). In such a case, as is but reasonable, the onus pro- (a) " TMs is apparent to common sense, as in the case of a vessel going so near to a rock or a shore of sand, that, if she followed the rule, she would inevitably become a wreck : no person would say the rule was to prevail over the still higher consideration of the preservation of property or of human life '' (per Dr. Lushington, in The Friends, 1 W. Bob. 485.) See also General Navigation Company V. Tmikin, 4 Moore, P. C. C. 314. (6) Joseph Somes, Swab. 188. SHIPS AT SEA. 27 handi rests with the vessel which thus deviates from the rule, to show that it was necessary to do so (a). In speaking, throughout this chapter, of porting Altering the or otherwise altering the position of the helm, the aiirays" thing intended is, of course, that the ship's course *"'°"^ " should be altered. Under some circumstances, it may be necessary for this purpose that some ma- noeuvres with the sails should be employed to assist the helm ; and, if so, the ship would be held in fault should these be neglected. Thus, in one case it was held a ship was in fault because, having missed stays, the crew did not square the mainyard and' let her pay off (6) ; and in another, because, though the ship's helm was properly ported, she did not, when lying-to, throw back her headyards (c). In the case of the La Plata, it was not enough, it was said, that the helm was ported ; the ship must answer her helm (c^). With regard to the time when the helm is to be Time when ,,, T iiiii, • helm should altered, a medium must be kept between preci- be altered. pitancy and procrastination. When a ship is seen at a considerable distance, time ought first to be taken for perfectly observing her probable course, after which any alteration of the helm which may be requisite should be made in such -good time that the vessel may be kept constantly under com- mand (e). (a) Immaganda Sara Cladna, 7 Notes of Cases, 582. (b) KingstQ'nrby-Sea, 3 W. Eob. 158. (c) James, Swab. 59. ((^ Swab, 228. (e) jMcerna,, 8 Mitch. 115. principle. CHAPTER II. steering rules for steamers and ships in tow (at sea). It seems convenient to treat in a separate chapter of the steering rules as affecting steamers or ships in tow of steamers ; tinder which head it will be necessary incidentally to consider the duty of saihng ships when they meet steamers, whether the latter are going alone or have ships in tow. General The general principles on this head are, that a steamer going alone, having a locomotive power which is independent of the wind, and consequently being able to leave and return to her course with less inconvenience than a sailing vessel, is to be treated as a ship that has the wind free, and is therefore to make way for a ship closehauled on either tack. A steamer with a ship in tow is not in the same position, since she cannot shift her course with so much ease. The result of the decisions, which are given in detail below, appears to be that such a vessel is bound to make way for a ship closehauled on the starboard tack; but, when she meets a ship closehauled on the port tack, each vessel is to make way for the other. Whether a towing steamer is bound to make way, or to assist in making way EULES FOR STEAMERS. 29 for a vessel having the wind free, is a question which has not yet, I believe, been the subject of an express decision in the courts (a). The duty of a steamer, in making way for another vessel, is not confined to the action of her helm. She may be obliged to slow, or stop, or back her engines, according to circumstances. We may begin with the case of steamers going alone. In the oldest case upon the subject, in 1828, the steamer to steamer Shannon, on the starboard tack, met a ship sailing vessel. which was on the port tack, and in the argument it was contended that the duty of making way rested with the latter vessel ; but the Trinity Masters said that the direction of the wind was of no very- great importance, as the Shannon, not receiving her impetus from sails but from steam, should have been under command. Steamboats, they said, from their greater power, ought always to give way. The Shannon was accordingly condemned in da- mages (6). In the year 1840, the following Regulation was Trinity rules, issued by the Trinity Board, after communication (a) On this subject of ships in tow, there is, as is pointed out below, a variance between the common law of the sea and the statutoiy regulations. (6) Shannon, 2 Hagg. 174. By the. common law of the sea, a vessel which has the wind free is to give way to one closehauled, and a steamer is to be treated as a vessel which has the wind free. This applies to the ships of all countries {Eclipse, 1 Lush. 423). By the common law of the sea, when two steamers meet end-on, each is to port helm (Black Diamond, 8 Mitch. 1488). 30 EULES FOR STEAMERS with, the Lords Commissioners of the Admiralty : — After setting forth the necessity of having some rule as to steamers, and stating that the recognised rule for sailing vessels was, as has already been stated, the Regulation continues : — • " And as steam vessels may be considered in the light of vessels navigating with a fair wind, and should give way to sailing vessels in a wind on either tack, it becomes only necessary to provide a rule for their observ- ance when meeting other steamers or sail- ing vessels going large." For this purpose, therefore, they promulgate the following Rule. " When steam vessels on different courses must unavoidably or necessarily cross so near that by continuing their respective courses there would 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." There is also a rule for the steering of steam vessels when passing each other in narrow chan- nels — a subject which is reserved for the following chapter. This rule of The first case in which the above rule was brought authin^y. under the consideration of the Admiralty Court was that of the Duhe of Sussex. Two steamers were approaching each other end-on ; the Lightning AND SHIPS IN TOW. 31 ported — the Duhe of Sussex starboarded her helm ; a collision ensued. In the argument, the Trinity- House Regulation was cited to prove that the Duke of Sussex was in the wrong. Dr. Lushington ob- served : — " The rule in question emanates from the Trinity House ; and although it cannot be said to constitute a law per se, it is nevertheless a rule to be observed, and it is important that it should be distinctly understood that, in aU future cases of this kind, the court wiU consider this rule of binding authority upon the owners of steam vessels ; and if the owners of such vessels shall think fit not to comply with it, in so doing they will be guilty of unseamanlike conduct, and their owners will be re- sponsible for the consequences that may result from their disobedience to it." The rule was intended to apply, continued the learned Judge, not merely where a collision would be a matter of certainty if the helms were not ported, but wherever there would be a reasonable probability of it. The court accordingly gave judgment against the Duke of Sussex (a). The schooner Perseverance, beating up the steamer to Thames off the Nore in the night-time, and close- goIn^aJtern hauled on the starboard tack, perceived the steamer °^ ^^^^' James Watt approaching her down the Reach, and steaming at from eight to ten knots per hour. The schooner continued her course and hailed the steamer to starboard her helm so as to go astern of her ; but the steamer ported her helm, which (a) Duke of Sussex, 1 W. Eob. 275. 32 RULES FOR STEAMERS brought her across the schooner's bows, and a col- lision ensued. Here the steamer was pronounced solely in fault. On behalf of the steamer, it was contended that the schooner ought, on seeing the steamer, to have put about ; and it was clearly estabhshed that she had ample time to do so.- But Dr. Lushington pronounced that she was perfectly right in continuing her course. " I conceive," said the learned Judge, " that very great inconvenience would arise, if vessels of her description, beating up the river, and being closehauled, should put about the moment a steamer is seen, and before it can be ascertained what course the steamer is likely to In case of take." Again, it was urged on behalf of the to be sS-"^* steamer, that although, if it had been daylight, her proper course would confessedly have been to go astern of the schooner, yet, being in doubt, by reason of the darkness, as to the course which the latter vessel might be pursuing, since her light only was seen, the proper course for the steamer to pursue was to port, her helm in compHance with the Trinity House rule. To this argument Dr. Lush- ington replied that, if the schooner's course was doubtful, the steamer's engines ought to have been eased and her course slackened until she had ascer- tained the schooner's actual position, after which her helm should have been altered according to circum- stances (a). The same decision was come to in a very similar case, that of the Gazelle. This steamer, on a dark (a) James Watt, 2 W. Rob. 270. ened, SHIPS AT SEA. 33 misty night, saw the light of a sailing vessel on the larboard bow. The steamer's helm was immediately ported, and she shortly after ran into the vessel, which vras a colHer closehauled. Dr. Lushington, after pointing out that it was certainly the steamer's duty, under these circumstances, to give way, added : — " The simple question is this, — what is the Definition of meaning of the term ' give way 1 ' I know of no ^'^'"^ ^^^" rule that ' giving way ' means putting the helm to port under all circumstances. On the contrary, I apprehend, and in many cases I have stated it, that it means, according to the circumstances, porting or starboarding the helm, as the exigency might require." He therefore put the question to the Trinity Masters, whether, under the circumstances, upon seeing the hght, the master of the steamer should have eased his engines, stopped his engines, starboarded his helm, or ported his helm. With regard to the conduct of the closehauled vessel, she had put her helm to starboard, but it appeared doubtful whether this proceeding had affected her course so as to contribute to the collision ; and with regard to this, the learned Judge told the Trinity Masters that unless such starboarding had contributed to the coUision, they were to dismiss it from their minds. The Trinity Masters found that the Gazelle did not take the proper measures to avoid the coUision, and absolved the sailing vessel from blame (a). The Trinity Eules, above referred to, profess to Euies laid down by first ^^ ■ Merchant Shipping Act. (a) Gaidle, 10 Jur. 1065. D 34 RULES rOR STEAMERS AND be simply declaratory of existing nautical customs, and have no authority independent of those customs." In 1854, however, an attempt was made to legislate, in a manner somewhat at variance with custom. The clause in the Merchant Shipping Act, so far as it refers to vessels proceeding under steam in an open seaway, is as follows : — " Whenever any ship, whether a steam or sail- ing ship, proceeding in one direction, meets another ship, whether a steam or saihng ship, proceeding in another direction, so that if both ships were to continue their respec- tive courses they would pass so near as to involve any risk of a colhsion, the helms of both ships shall be put to port, so as to pass on the port side of each other ; 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 the proviso that due regard , shall be had to the dangers of navigation " (s. 296). These now As was Said in the preceding chapter, this clause superseded. ■, . t t i i ■ . bemg now superseded by a later statute, it is un- necessary to enter with any minuteness into the decisions which were founded upon it. The manner in which some of those decisions have narrowed the apphcation of the clause, so far as sailing ships are concerned, has been pointed out. In judging of Another important modification of the strict the course to . ■, . p ,i i •,-,■, be pursued, grammatical meaning oi the clause was introduced SHIPS AT SEA. 35 in the cases of the Mangerton and the Admiral account is to Boxer. The clause, it will be observed, is limited the likelihood to the case in which the vessels are approaching in vessel win such a manner as that, if both were to continue po'^'i^i™- their respective courses, there would be a danger of collision. These decisions establish that, in judging of this danger, account is to be taken by those who direct the helm in one vessel, of the probability that the other vessel will, on seeing the former approach- ing, put the helm to port, in obedience to the statute. That is to say, if the vessels are meeting at night, or when for any reason there is an uncer- tainty as to the position or course of either vessel, each is to act on the presumption that the other wlU. not continue her course, but port the helm. Thus, in the Mangerton's case, a ship which was running free was held to be in fault because, seeing a steamers green or starboard light three or four points on her starboard bow, she held on her course, the master believing that, if the steamer did like- wise, the vessels would have gone clear. He ought, it was said, to have expected that the steamer, on seeing his light, would have followed the rule and have ported ; and should therefore have ported his own helm. " Both parties are bound to act on the presumption that the statute wiU be obeyed by the other ; the confusion otherwise would be end- less" {a). (a) Mangerton (Swab. 124) ; and see Admiral Boxer (Swab. 194). The cases of the Cleopatra (Swab. 135), and the Sy^iV (Swab. 236), illustrate the manner in which the steering of steamers at night x> 2 36 EDLES FOK STEAMERS AND PreBent We come now to the latest Eegulations, which, ^68*°"^ so far as statutory Eegulations have jurisdiction, supersede all other riiles upon this suhject. These are the Regulations issued in 1863, by the Board of Trade, in conformity with the terms of the Mer- chant Shipping Amendment Act ; and are as fol- lows : — Art. 13. — " If two ships under steam are meet- ing end-on, or nearly end-on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of each other. Art. 14. — "If two ships under steam are cross- ing so as to involve risk of collision, the ship which has the other on her own star- board side shall keep out of the way of the other. Art. 15. — "If two ships, one of which is a sailing ship, and the other a steam ship, are proceeding in such directions as to involve risk of collision, the steam ship shall keep out of the way of the sailing ship. Aft. 16. — " Every steam ship, when approach- ing another ship so as to involve risk of col- hsion, shall slacken her speed, or, if necessary, stop and reverse ; and every steam ship shall, when in a fog, go at a moderate speed. is to be regulated by the position of the red and green lights of the vessels they see ; but, in using these cases as authorities, it is to be borne in mind that they come under the statute now repealed (see c. 5, on " Lights," s. 4). SHIPS IN TOW. 37 Art. 17. — "Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel. Art. 18. — "Where by the above rules one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the following article. Art. 19. — "In obeying and construing these rules, due regard must be had to aU dangers of navigation ; and due regard must also be had to any special circumstances which may exist in any particular case, rendering a de- parture fi:om the above rules necessary in order to avoid immediate danger." " Keeping out of the way," in Art. 1 4, must be done either by starboarding or porting, according to circumstances (a). The above cited decisions have reference to the steamers . „ . , • .1 having ships steermg oi steamers going alone : we are m the in tow, next place to consider the duties of steamers having vessels in tow. The earliest case bearing on this subiect is that ^^^^°^^ , ° "J always to be of the Kingston-by-Sea (b). "It has been urged," regarded aa said Dr. Lushington, " that a steamer is always to be considered as having the wind free, whether she has another vessel in tow or not. To this pro- position I cannot accede. It is true, a steamer is considered always to have the wind free; but it (a) Cognac, 10 Mitch. 367. (6) 3 W. Eob. 152. 38 RULES FOB STEAMERS AND does not, in my opinion, follow that a steamer having a merchant vessel in tow is always free. That will depend, I conceive, upon the state of the wind and weather, the direction in which the steamer is towing, and the nature of the impedi- ments that she may meet with in her course." These expressions were adopted by the Judicial Committee of Privy Council, in the case of the Independence, as accurately stating the law on this point (a). The next case upon the subject is that of the Cleadon. A steamer, having the ship Cleadon in tow, had crossed the bows of the ship A. H. Stevens, which was closehauled on the starboard tack. The Cleadon had not crossed her bows ; but it was found by the Trinity Masters that she was in such a position that, if both vessels had continued their respective courses, they would have cleared each other. The tug, and of course the Cleadon, con- tinued her course without alteration ; but the A. H. Stevens ported her helm, and ran into the Cleadon. The Court held that the A. H. Stevens was solely in fault ; and this was affirmed in Privy Council., In giving judgment in the latter Court, Ship towed Lord Chelmsford said : — " The Cleadon being in treatecfasone tow of the steam-tug, it is admitted in the case vessel. ih'aA she and the tug must be considered to be one vessel, the motive power being in the tug, the govern- ing power in the vessel that was towed. It was her duty, being in fact a steamer, to get out of the {a) 1 Lush. 278. SHIPS IN TOW. 39 way of another vessel that she was meeting ; and this more especially became incumbent upon her, from the situation in which she was placed; be- cause, as it appears, there is nothing which can indicate to any other vessel that a vessel is being towed, and of course, under such circumstances, the combined vessels being a very long body, and a vessel meeting them taking for granted, by seeing the lights, that they are independent vessels, they ought to be more careful, under such circumstances, to give a wide berth to any vessel that they are meeting." The facts of the case, however, rendered it un- necessary to apply the principle here laid down ; it appearing that, under the actual circumstances, the Cleadon and her tug were justified in holding on their course. The A. H. Stevens must, in the opinion of their lordships, have known that the Cleadon was in tow of the steamer, and conse- quently could do nothing but follow her ; and for this reason they held that the A. H. Stevens did wrong in porting her helm {a). In the case of the Independence, it was expressly Whenshipin .. i'_L- J. ^"^ meets decided that a steamer having a vessel m tow is not bMp close- under the same absolute obligation to make way for port tae^ a saiHng vessel, as a steamer going alone. giVe way!'' *'° The schooner Arthur Gordon, heading about N.N.W., was closehauled on the port tack: the steamer Independence, having in tow a large vessel called the J. K. L., was steaming about W.N.W. (a) Cleadon, 1 Lush. 158. 40 RULES FOR STEAMERS AND Each vessel sighted the other, in the first instance, at a long distance, bearing upon the beam, the steamer being on the lee beam of the Arthur Gordon. Each vessel held on her course until a collision was inevitable ; they came into contact, and both vessels almost immediately sunk. In the Admiralty Court, Dr. Lushington, after pointing out that the two vessels were not meeting, but crossing each other's tracks, and that conse- quently the then existing Regulations (those of the Act of 1854) did not apply, but the case must be determined independently of statute, proceeded to say that, as the sailing ship was closehauled, it must be admitted without question that, if the steamer had had no vessel in tow, it would have been her duty to have made way. Whether the same obliga- tion was imposed, in broad daylight, upon a steamer which was engaged in towing, was a question, he said, for the Trinity Masters to determine. He pointed out to them, however, that the reason why a steamer was bound to make way for a sailing ship was, the comparative ease with which a steamer could quit and return to her course ; and that, while a steamer, steaming alone, could do any- thing, a steamer which had a vessel in tow could not always have the same facility of movement as if unincumbered. The Trinity Masters, nevertheless, appear to have held that the tug ought to have given way ; and the Independence was pronounced solely in fault. From this judgment an appeal was carried to the Privy Council. SHIPS IN TOW. 41 In giving judgment, Lord Kingsdown said : — " It was urged in support of the decree, that a steamtug with a ship in tow is in no degree in a different situation from a steamer unincumbered, and that, as such a steamer would have been bound to give way to a ship closehauled, the steamtug in this case was equally bound to do so. Their lord- ships are not prepared to adopt that principle, and they agree with Dr. Lushington, that there is a very material distinction between the two cases. A steamer unincumbered is nearly independent of the wind. She can turn out of her course, and turn into it again, with little difficulty or inconvenience. She can slacken or increase her speed, stop or re- verse her engines, and can move in one direction or the other with the utmost facility. She is, therefore, with reason, considered bound to give way to a sailing vessel closehauled, which is less subject to control and less manageable. But a steamer with a ship in tow is in a very different situation. She is not, in anything Hke the same degree, the mistress of her own motions ; she is under the control of, and has to consider, the ship to which she is attached, and of which, as their lordships observed in the case of the Cleadon, ' she may for many purposes be considered as a part, the motive power being in the steamer, and the governing power being in the ship towed." She cannot, by stopping or reversing her engines, at once stop or back the ship which is following her. By slipping aside out of the way of an approaching vessel, she cannot at once, and with 42 RULES rOR STEAMERS AND the same rapidity, draw out of the way the ship to which she is attached, it may be by a hawser of considerable length ; and the very movement which sends the tug out of danger, may bring the ship to which she attached into it. Even if the danger of collision be avoided, it may be much less incon- venient for a ship closehauled to change her course, than for a tug with a ship attached to her to do so. Their lordships, therefore, are of opinion that it is not sufficient, to throw the blame exclusively upon the Independence, to urge that she, as a steamer, was bound to make way for a vessel closehauled, and that she neglected to do so." The learned Judge, after saying that in the opinion of their lordships, the law on this subject was accurately laid down by Dr. Lushington, in the case of the Kingston-hy-Sea, above cited, and after a critical ex- amination of the Cleadon's case, proceeded to say that, in the opinion of their nautical assessors, the Arthur Gordon .might, without difficulty, and with very little loss of time, have avoided the Inde- pendence ; that the steamer had a right to rely on her doing so ; and consequently that the Arthur Gordon was solely in fault. Their lordships, how- ever, were not prepared to go so far. In their opinion the steamer also, by a sHght deviation from her course, might have avoided the collision. That she did not do so, was on the evidence the result of an insufficient look-out having been kept. The Arthur Gordon, they held, occasioned the coUision ; but there was on board the Independence such a SHIPS IN TOW. 43 want of reasonable care and skill as contributed to tbe accident. Both vessels, therefore, were pro- nounced in fault (a). Effect of It is necessary to point out that aU the decisions raks on^the above cited were made previously to the Merchant llonl ^^'^^' Shipping Amendment Act, and to the issuing of the Board of Trade Regulations in conformity thereto. The results of those decisions may, to a certain extent, be affected by Articles 15 and 18 of these Regulations (see above), which direct that whenever a steam ship (drawing no distinction, apparently, between steamers going alone and steamers having vessels in two) is proceeding in such a direction as to involve risk of collision with a sailing ship, the former shall keep out of the way of the latter, and the latter shall keep her course. In this respect, therefore, there seems to be a difference between the common law of the sea and the statutory Regulations (b). (a) Independence, 1 Lush. 270. (b) The I'elative position in law of a steam tug and the vessel she On the rela- is towing, though a subject not properly within the scope of this tire position treatise, seems to require some brief notice in this place. g^^^ ship The tug is the servant of the ship towed ; hence, if the tug does towed, wrong, and a collision ensues, the owner of the ship towed is answer- able in the iirst instance, but may recover damages against the owner of the tug, as well for injury done to his own ship as for the gum he has been obliged to pay to the other {Kvngston-hy-Sea, 3 W. Eob. 153 ; Gipsey King, 2 W. Eob. 543 ; NigU-Watch, 8 Mitch. 911). The tug is not liable if the collision arises from improper orders given by the pilot of the ship towed, it being generally the duty of the pilot to direct the tug's course by orders given from on board the ship {Duke of Sussex, 1 W. Rob. 272) ; but, where no directions are given, the tug is responsible top proper steering 44 RULES FOR STEAMERS AND Steamer in certain cases must slow, stop, or reverse her engines. Before closing this chapter, it may bei well to point out that it is not sufficient in all cases for a steamer to put her helm in the right direction : her engines must be slowed, stopped, or reversed, if necessary, according to circumstances. In this respect the common law of the sea and the statu- tory Regulations are equally exphcit. Thus, in the case of the Despatch, the Trinity Masters held that it was the duty of that steamer, on first ob- serving the other vessel, to have eased and stopped her engines ; and the steamer was pronounced in fault {a). And Art. 16 of the Regulations (see above) directs that " every steam ship, when approaching another vessel so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse." Here it is to be observed, that the duty of slackening her speed is imposed in all cases, while that of stopping and reversing is limited {Secret, 8 Mitch. 116). The proper time for making fast the tug to the steamer is to be determined, not by the master of the tug, but by the pilot or captain of the ship, so that if an error has been committed in this matter, the tug is not liable {Julia, 1 Lush. 231). The owner of a tug may lawfully stipulate beforehand, by printed notice, that he will not be liable for improper acts of his crew (Symonds v. Pain, 6 Mitch. 433). The tug, if improperly run into and damaged by the ship she is steering, has a right of action against her {Julia, 1 Lush. 231 ; Night-Watch, 8 Jurist, N. S. 1161). It is to be observed that the jurisdiction of the Court of Admiralty, as between a tug and the ship she is towing, must be founded on a collision ; hence, where the ship towed sued the tug for damage done by a grounding daused by improper tow- ing, the Admiralty Court refused to entertain the suit (Robert Pow, 8 Mitch. 943). (a) Despatch, Swab. 140. SHIPS IN TOW. 45 to the case of necessity. Whether the Court of Admiralty would interpret this clause so literally as to hold that, whenever a steamer is approaching another vessel in such a direction that, without an alteration in her course, a collision must ensue, the steamer is bound to slacken her speed, even in cases where a simple alteration of her helm would suffice to clear the other vessel, must be considered as somewhat questionable. CHAPTER III. STEERING RUIiES IN NARROW CHANNELS, AND OTHER CASES. In the two preceding chapters have been con- sidered the rules for steering when two vessels meet, having ample sea-room, and when both are in motion. We are now to deal with the cases of vessels which meet in a narrow channel, or river, or when one of them is at anchor or lying-to. Under this head it will be proper to examine how far a vessel which is in stays, in the act of tacking, is to be regarded as in a similar position to one at anchor ; also, what precautions are to be observed in launcliing a ship, and by vessels which are crossing the track where a launch is to take place. Extinct With regard to vessels in a narrow channel, there rules for is now no Statutory regulation; but, in order to chaMwis. understand the following decisions, it must be men- tioned that the Trinity House Regulation, issued in 1840, was as follows : — "A steam vessel passing another in a narrow channel must always leave the vessel she is passing on the larboard hand." This rule remained in force until 1853, when it was superseded by s. 297 of the Merchant Shipping Act, which is as follows : — " Every steam -ship when navigating any narrow channel, shall, whenever it NARROW CHANNELS. 47 is safe and practicable, keep to that side of the fair-way ormid-channel which lies on the starboard side of such steam-ship." This section was repealed in Table A. of the Appendix to the Merchant Shipping Act Amendment Act of 1862, 25 and 26 Vict. c. 63 ; and in the Board of Trade Regula- tions, issued in conformity with the latter Act, there is no regulation specially applicable to narrow channels ; so that at present the case is not pro- vided for by statute. It may, however, be instruc- tive to review the decisions founded on this extinct legislation. The question has been raised on several occasions, Local customs 1 f. T 1 , .... i- 1 • cannot justify now lar local customs prevailing m particular nvers departure can be pleaded in contravention to the Trinity House ^'^°™ ^^® ™ ®' Rules or the Statute. In the case of the Duhe of Sussex, it was alleged that in the Halfway Reach, in the Thames, near Woolwich, the tide sets so strongly towards the north shore that there was a custom for steamers going down the liver with the tide, to keep towards the Essex shore as much as pos- sible, and for vessels coming up to take the Kentish or south side of the river. Two steamers met in this reach "end-on" : one, the Lightning, ported her helm, and of course went to the unusual side of the river ; the other starboarded, and defended herself on the ground of the custom. The Court decided that the latter vessel was solely in fault, for not having followed the Trinity House rule. The so-caUed custom, Dr. Lushington said, only amounted to this, that according to common sense, the one vessel steered her course where the tide was strongest in 48 STEERING BULES IN her favour, the other where the adverse tide was weakest. " But," he continued, " supposing the custom to exist as stated, it can only- be acknow- ledged where there is an open way for each vessel to psiss without any risk of a collision. In the present case the two vessels were meeting end-on ; in which case I distinctly lay it down as my opinion that the rule was to be observed, and the custom, if any such custom exist at all, be superseded " (a), In the case of the Friends, the custom in the river Thames was stated to be, that vessels going with the tide kept the middle of the stream, in order to have the advantage of the tide's full force, while vessels going against it would keep as near as might be to one or other of the shores ; and, when so coming up the river in Halfway Reach, would keep the south or Kentish side, so as to avoid as much as possible the strength of the tide. The steamer Menai was proceeding up Halfway Reach, against an ebb tide : the schooner Friends was coming down the river, sail- ing free : the two met nearly end-on. The schooner ported her hehn : the steamer, adhering to the sup- posed custom, starboarded, so as to keep still closer to the Kentish shore, and indeed kept so close that she ran aground upon it. In giving judgment, Dr. Lushington commented on the Trinity House rule ; pointing out that it did not profess to enact the law, but simply to declare what was the existing law of the sea ; that it did not in express terms (a) Buke of Sussex, 1 W. Eob. 274 ; see also tte OazeUe, 1 W. Rob. 471. NAEROW CHANNELS. 49 provide for the present case, since it only spoke of a steamer "passing another," ie., another steamer: but that by implication the Eules disposed of tbe question, since they declared that a steamer was to be regarded as a vessel going free, and that vessels going free were to pass each other on the larboard hand. The learned Judge then left it to the Trinity Masters to say whether the alleged custom in the Thames, and the convenience of it for vessels navi- gating that river, furnished a satisfactory exception to the application of the Trinity House Eules upon Exceptions the present occasion ; adding, that if there were to Sinct and be any exception, it ought to be as distinct and t^e ruil^ definite as the rule itself, so as to avoid the dangers resulting from uncertainty. The Trinity Masters pronounced that the steamer was solely in fault, and she was condemned in damages (a). We come now to the enactment in the Merchant Shipping Act. The first reported case bearing upon it (h) is that of the Unity, in 1856. Here it was stated that the custom clearly prevailed in the river Tyne, that tugs going up that river with vessels ia tow should keep to the south side, and steamers coming down should keep to the north. Dr. Lushington assumed that the river was, properly speaking, a "narrow channel." In that case, he (a) The Friends, 1842, 1 W. Eob. 478. (b) It seems unnecessary to complicate the subject by referring in detail to decisions based on still older legislation,— e. g. the Acts 9 & 10 Vict. c. 100, and 14 & 15 Vict. c. 79, which were extin- guished by the Merchant Shipping Act (see The Nimrod, 15 Jurist, 1201 ; The Leith, 7 Notes of Cases, 139). E 50 STKERING RULES IN said, the alleged custom was a clear violation of the Act of Parliament, unless there were some local peculiarities, of which he knew nothing ; and that, if the custom as stated in the evidence were a custom at all, it was not a custom recognized in law. With reference to the words in the clause, " whenever safe and practicable," the meaning of them he apprehended to be that, where there was no local impediment of any kind, no difficulty arising from the peculiar formation of the channel itself, no storm, no wind, or anything of that kind occurring, then the obligation continued of keeping to the starboard side, and no consideration of con- venience, no opportunity of accelerating the speed, could justify a disobedience of the statute (a). The same principle was laid down in the case of the Hand of Providence. Mere reasons of convenience or expediency, as, that the water is deeper, or that the tide flows stronger on one side of the channel than on the other, would be no excuse for a Exceptional deviation from the directions of the Act : though it would be otherwise if it could be shown that there was, some permanent local peculiarity, such as a rock, which would render obedience to the statute dangerous; or an accidental impediment, as a wreck ; or if the state of the weather were such as to render it dangerous to attempt it. But no (a) The Unity, Swab. 101. In this case, the steamer coming down the river, and seeing one light on the starboard-bow and another on the port-bow, was held in fault for attempting-^to pass between ; she should have ported. NAUROW CHANNELS. 51 custom, no rule, it was laid down, could previail to justify any deviation from the Act (a). In the case of the Panther, in 1862, it was suggested that, since there was a local custom opposed to the Act, it would be dangerous to obey the Act, because other ships would violate it. "That will never do," said Dr. Lushington, "we can never say that a violation of a statute is a justification for a future violation " (&). We are, ia the next place, to consider what con- what is stitutes a narrow channel, within the meaning of channel. the Act. The river Mersey, off the Crosby light- ship, was treated as a narrow channel, in the case of the Admiral Boxer, in 1857, though the question whether it was properly so treated does not appear to have been mooted (c). The Crosby light-ship is, in fact, not in the river Mersey, properly so called, but in the channel outside the Mersey. In the subsequent case of the Mceander, it was determined that the Queen's Channel, near the Bell Buoy, outside the river Mersey, was not a narrow channel. " My notion of a narrow channel," said Dr. Lushington, " is this, where a channel is bounded on either side by land, so that it is impossible, under the circumstances, that you can navigate at any great width between the two banks " — that is, a narrow channel. "If you should be of opinion," he said to the Trinity Masters, " that the channel had (a) Swab. 107. (6) 7 Mitch. 238. (c) Swab. 194. E 2 52 STEERING RULES IN ended, that is to say, that the place of collision was in the open sea, where there is a wide depth of water — an expanse of water on both sides — where ships may safely navigate, then I should come to the conclusion that it is not a narrow channel within the meaning of the statute." And he intimated that so long as the channel was marked out by buoys, and no further, it might be considered as a narrow channel. Dr. Lushington's decision on this point was affirmed in Privy Council (a). Of steamers It seems questionable whether the obhgation to ?nto^.''''^^ keep to the starboard side of the fairway is as rigorously applicable to steamers which have vessels in tow as to steamers going alone. In the case of the La Plata, that vessel, a large and long ship, was going down the Thames in tow of a steam-tug, and was on her right side, i.e., on the south or star- board side of the river, when she met the brig Helene, also in tow of a' steamer, and also on the South side of the river. The Helene's helm was ported, and she answered her. helm ; it was alleged that the helm of the La Plata was ported, but it cer- tainly appeared that her course was not changed, and a collision ensued. The case for the Helene was rested on the La Plata's not having ported, or not soon enough ; that of the La Plata on the Helene's being on the wrong side of the channel. Dr. Lushington pronounced in favour of the Helene. " The rule laid down in the Act," said the learned Judge, "must be modified withrespect to both vessels, (a) The Mmander, 1 1 Weekly Reporter, 542. NAREOW CHANNELS. 53 because I am clearly of opinion, however strictly you may apply the rule to two steamers navigating alone, the one going down on the south side, and the other coming up on the north, yet, in the case of a vessel in. tow of another, some allowance must be made, and some deductions taken from that extreme strictness which applies to a vessel steaming by itself." Then, with regard to the La Plata, it was not enough, he said, that the helm should be ported ; the ship must also have answered her helm : and, if it were contended that there was a difficulty on account of the state of the tide, which was just on the turn, this must be answered by saying that, if a vessel going down the river in tow of a steamer starts before high water, and if the being towed against the tide occasions an increased risk of col- lision with other vessels, the ship which proceeds in this unusual manner must bear the conse- quences (a). This decision, however, was reversed in Privy Council, but so as to leave it doubtful whether the principle laid down in it, that a steamer with a ship in tow is not under the same obligation to keep her own side as a steamer going alone, was or was not accepted as law. The question was, said Sir W. Maule, in giving judgment, whether those who managed the La Plata had been shown to have been guilty of any wrong navigation, or any default or negligence which occasioned that accident. The coUision happened, it appeared, just about high water, when it could not be known which way the (a) Swab. 220. 54 STEERING RULES IN tide might be running at the moment in any par- ticular part of the river. That being so, it might be an accident for which nobody was to blame, but whether it was so or not, was a matter depending upon nautical considerations. Their nautical as- sessors had told them they thought the La Plata had done all she could ; that her helm had been put to port ; that, from her length, she woidd not answer her helm.|so quickly as the Helene, but she was on her right side of the river, and was as close over as she could get without fouling the craft at anchor on the south shore ; that the Helene was not on her proper side of the fairw;ay ; and that, had a good look-out been kept on board, she must have seen the La Plata earlier than she did. These reasons appeared to their Lordships perfectly satisfactory, and they, therefore, pronounced that the La Plata was not in fault (a). It wiU be observed, from this summary of the judgment, that no opinion was pronounced as to whether the Helene was in fault, nor any reference made, except very in- directly, to the general principle laid down by - Dr. Lushington. Cases not The above-citcd decisions have in each case had furig^dictk.!! reference to such vessels as came within the juris- of the statute. ^^^^^^ ^f the English statute. In those which follow, the vessels, being foreign, were subject to no other rules than those of the general sea law. Foreign ship In the case of the Fyenoord, it was decided that the customs a foreign steamer navigating the Thames, whether of an English river. — (a) Swab. 298. NAEEOW CHANNELS. 55 or not coming within the terms of the Merchant Shipping Act, is bound by the custom of the river Thames, founded on that Act, to keep to the star- board side of the channel. " We must presume," said the Court, " that a customary course of navi- gation has emanated from the statute, and that this was known to those on board the Fyenoord." In this case, and that of the Seine, it was determined that a foreign steamer, coming up the Thames, has "no right to cross to the wrong side of the river in order to comply with a Custom House regu- lation, by which a station on the south side of the river at Gravesend had been appointed, where all steamers from foreign ports were to take in their Custom House officers. It had been directed by sta- tute {a), that every ship, in proceeding to her place of mooring or unlading, should bring to at stations appointed for the purpose by the Commissioners of Customs. The place to which these vessels had crossed was the station so appointed. Ifc was alleged to be dangerous in stormy weather, as well as inconvenient for the Customs officers, were they required to cross the river. There was also a cus- tom, though not a uniform one, to cross the river to the station. These reasons, however, were rejected by Dr. Lushington as insufficient. There was not, he said, a uniform custom to clear on the south side, consequently no custom in law. It was no excuse to say that in stormy weather it might be dangerous to cross the Thames, for on this occasion it was not (a) 8 & 9 Vict. c. 86, s. 12. 56 STEERING RULES IN Kule for steering in rivers with strong currents. stormy. Even granting it had been dangerous to them, still' the dangers arising from a departure from the rule of navigation would have to be con- sidered on the other side. The vessels, therefore, were in each instance held in fault for having crossed to the wrong side of the river (a). In the following decision an important rule was laid down for the navigation of rivers with strong ciu-rents ; and this is the more valuable, in the present absence of statutory regulations, as having been decided purely on general principles. The steamer Smyrna was going up the Danube, towing one vessel astern and another lashed alongside, when she met the steamer Mars coming nearly empty down the river. The place where they met was near a bend in the river, where the current sets very strongly towards the concave or Russian side. The Mars came down on that side, and the Smyrna was coming up on the same side, and before any- thing could be done a violent collision took place. The (^[uestion arose, which of the two steamers was on her right side. On behalf of the Smyrna it was urged, that by a regulation issued by the European Commissioners appointed at the close of the Russian war to regtdate the navigation of the Danube, vessels going up the river were to keep to the Russian side. But the Privy Council determined that in issuing this regulation the Commissioners had exceeded the powers given them by the treaty, (a) The Fyenoord, Swab. 377 ; The Seine, Swab. 413. NARROW CHANNELS. 57 and that the question could only be determined upon the general principles of the sea law. Several Danube pilots, and a naval officer, who had been for two years on the Danube station, had given it as their opinion that a steamer ascending the river at night, and being about to meet a steamer descending the stream at the bend in question, ought to place herself on the right or Turkish side. The Naval Assessors of the Privy Council confirmed this, and added that no regulations ought to be made which should lay down a contrary rule. " The reason for this," said the Court in givdng judgment, " is obvious ; the descending vessel will, of course, be moving with great velocity, and must almost of necessity be carried^ more or less, into the concave bend of the stream, where the current is stronger. Prudence, therefore, must dictate what the great bulk of the evidence shows to have been the .prac- tice, namely, that ia such circiunstances the ascend- ing vessel ought to place herself out of the strength of the current, in order to allow full swing to the descending vessel, which must necessarily be hurried along by its force." The Smyrna, therefore, was pronounced in fault (a). The next subiect for consideration is the case pfshipsrun "^ .. , . . i_ TT into while at where one of the coUiding ships is at anchor. Here, anchor. supposing that a proper Hght has been exhibited by the ship at anchor, the presumption of law is that the vessel which runs into her is in fault, (a) The Bmyrna, 9 Mitch. 978. 58 STEEEING EULES IN foicie in fault, and the burden of exculpating herself rests with the latter (a). The ship Thus, in the case of the Fercival Forster, Dr. rSchor LusHngton said :— « She had anchored in a place respecting which no fault could be found, that is, she had a right to be anchored where she was. The result of that is, that if any vessel in motion comes into collision with her while at anchor, the burden of proof Kes on the vessel so coming into collision, to show either that the collision was inevitable from circumstances, or that the vessel at anchor was to blame. The justice of this, which is a rule of law, is obvious, because a ship lying at anchor has very little means of avoiding a collision ; to a certain extent she may possibly manoeuvre, but to a small extent ; whereas the vessel driving up with the tide, whether under steam or sail, has much greater means of doing whatever may be necessary" (6). Even though the ship should have been anchored in an improper place, the same rule, it appears, must hold good ; for even then it is the duty of the vessel in motion to keep out of the way of her if she can. " This is not only the doctrine of the maritime law, but it is also the doctrine of the common law with respect to carriages on the high road. Supposing a carriage be standing still, and be on the wrong side even when ship is anchored in an improper place. (a) How the case would stand, if the vessel at anchor^had no light hoisted at a time or place at which, by custom orjpositivellaw, there ought to have been one, will be considered in the subsequent chapter on Lights. (6) 7 Mitch. 1456. NARROW CHANNELS, 59 of the road, it would be no justification for another carriage, which might be on the right side of the road, to run into that carriage, if the driver could avoid it without risk to himself" (a). When a vessel is hove-to, that is to say, is kept yeTeilove-to almost stationary, so far as the wiud is concerned, by the position of her saOs, one sail being kept backed while another is fiUed, so that they neutra- Hze one another, and the only movement of the ship is a drifting in the tide, is a vessel so situated to be treated as a vessel at anchor ? On this question we have the two following deci- sions : — Two vessels were lying-to in a tideway on opposite tacks ; the tide drifted one against the other ; nothing was done on either side ; and both were held in favilt ; the one on the port tack for not having ported her helm in time, and the other for not having thrown back her headyards when the collision was probable. From this decision it ap- pears that, as between two vessels which are both lying-to, each is bound to take measures for avoiding a collision, in the same manner as if both were " under way " (6). A fishing smack, whilst hove-to, engaged in transferring her fish by boats to other smacks, was nin into by a vessel under way. It was alleged on the one side that the smack was lying dead in the water, and on the other that she was not properly (a) The Batcmier, 2 W. Rob. 407. (6) The James, Swab. 55. See also S. C. in P. C, which, how- ever, only tends to confirm the principle (Swab. 60). 60 STEERING EULES IN lying-to, but might easily have filled her head sails and gathered way so as to avoid the collision. Dr. Lushington said : — " It seems consistent with pro- bability that, as the cutter (smack) was employed in putting fish on board a number of vessels, she should be hove-to in order to facilitate that occupa- tion, and not be sailing ; and if hove-to^ it would be the duty of vessels coming up to treat her as a vessel at anchor, and not run into her. It is diffi- ctdt to say that vessels must always treat this cutter as lying-to, and, therefore, she must take care, the same as other vessels, that she does nothing to bring about a collision." "Whether the smack was or was not actually lying-to at the time, was a question, the learned Judge proceeded to say, en- tirely for the Trinity Masters. They appear to have considered that she was not, since both vessels were pronounced in fault (a). From these decisions, and from the reasonableness of the case, it may apparently be concluded that a ship which is under way, on either tack, ought to avoid a vessel which is lying-to on either tack, and that the vessel which is lying-to has the right to retain that position. On the other hand, when two vessels, both lying-to, are in danger of drifting against one another, that which is on the port tack should take measures to avoid the other. In any case a vessel which claims the right to do nothing on the ground of her being hove-to, is bound to (a) The Transit, 9 Mitch. 750. NARROW CHANNELS. 61 provfe distinctly the fact of her being hove-to, and that so completely as to be " dead in the water." A vessel which, at the time when she is ap- Vessel in preached by another vessel, is in stays, in the act of onTat'^''" tacking, is for the time in the position of a ship at ^'"=''°''- anchor ; the duty of avoiding a collision rests en- tirely with the other vessel. " A vessel alleging that she is in stays," said Dr. Lushington, "is bound, in the first instance, to prove that such was the fact, that she was actually in stays at the time of the collision. This proved, the burden of the proof then shifts ; for a vessel in stays is almost in the same predicament as a vessel at anchor ; and the other side must then show that the vessel proceeding was improperly put in stays, and so brought the accident upon herself, or that the collision was an inevitable accident caused by the condition of the weather or other unavoidable circumstances " (a). Before a ship is thrown into stays, due precaution should be taken to avoid the risk of collision. A ship must not unnecessarily be thrown into stays at the moment when another vessel is seen approach- ing her. If a coUision takes place with a ship in stays, the question wlU be asked whether the officer in command of the ship looked carefully round, before putting her in stays, to see that no vessel was approaching dangerously near {&). (a) The Sea Nymph, 1 Lush. 23. (6) 1 Lush. 24. 62 STEERING RULES IN Of ships being launched. Notice of launch must be given. Other vessels must keep out of the way. The only case that remains to be considered in this chapter is that of a ship-launch ; what precau- tions are to be observed, on the one side, by those who are launching a ship, and on the other by ships which are crossing the track of an intended launch. On this head we have the following deci- sions : — " The first rule in all cases of the kind," says Dr. Lushington, " is, that reasonable notice of the intended launch should be given before the launch takes place. What such reasonable notice is, must depend upon local considerations, as, for instance, the breadth of the river, the number of vessels passing up and down, and other circumstances of the like kind. It is, however, perfectly obvious that such notice must not be a mere general notice that a launch is about to take place on a particular day ; it must be sufficiently specific vdth respect to time to prevent vessels navigating in the river from incurring unknowingly the risk of loss or injury. In addition to the general precaution to which I have just adverted, the law further requires, on the part of the persons about to launch a vessel, the greatest care and vigilance to prevent the launch from coming into collision with any other vessel. For this purpose, it is especially necessary that a good look-out should be kept at the time and immedi- ately before the launch takes place " (a). On the other hand, a vessel which is crossing the (c) 2 W. Eob. 423, 424. NAEEOW CHANNELS. 63 course of an. intended launch, at a time when the launch may reasonably be expected to take place shortly, is bound, even at the cost of some incon- venience and delay to herself, to keep as far out of the track of the launch as is practicable and safe (a). These principles were laid down in the case of the Blenheim. This vessel was about to be launched from a building-yard in the river Tyne ; flags had been hoisted, which were understood to indicate that the launch was to take place that day ; and it was the known custom in that river for all launches to take place at the time of slack water. No signal, however, appears to have been given by the firing of a gun or otherwise, nor had any notice been issued, announcing the precise time of the launch. The steamer Velocity was coming down the river, towards the yard, and was not keeping so near the north or opposite shore as she might have done. Shortly before she came opposite to the yard, the steamer was stopped, to take a pUot on board. Those in charge of the ship on the ways appear to have supposed that the steamer was stopped to see the launch, or to wait until it had taken^ place, and the launch was accordingly suf- fered to proceed. Meanwhile, the steamer having got her pilot went ahead again ; the ship went off the ways ; and the two vessels came into collision. In determining, under these circumstances, which of the two vessels was in fault, Dr. Lushington, (a) 2 W. Kob. 426. 64 STEERING RULES IN after laying down the principles as above quoted, pointed out to the Trinity Masters that the ques- tions for them to consider were, whether the notice of the launch w^as sufficiently specific as to time, whether a sufficient look-out had been kept on the ways, and whether the steamer had kept sufficiently far to the northward. The Trinity Masters pro- nounced that, under the circumstances, there had been a sufficient notice of the intended launch, that the stopping of the steamer justified those on the ways in thinking she was going to wait until the launch was over, and that the steamer ought to have gone more to the north. Accordingly, the steamer was held solely in fault (a). Another launching case, also on the Tyne, is that of the Vianna. It appeared that, in laimching ships at the Narrows, on that river, there was no fixed and invariable custom, but it was said to be a proper precaution, fi?equently resorted to, to hoist a flag half-an-hour before launching, and to procure the attendance of the harbour master, to keep the river clear. Neither of these measures had been taken in the launch of the Vianna, though there were flags to show that she was to be launched that tide. In giving judgment, Dr, Lushington said : — "I adhere to the principles I laid down in the Blenheim. As a general rule, the thoroughfare of the river must be kept open, and free from danger for all ships passing to and fro. If a ship is to be launched, causing thereby the temporary hindrance (a) The Blenheim, 2 W. Eob. 421. NAREOW CHANNELS. 65 of a common right, the party launching must give adequate notice ; and the onm probandi that pro- per notice was given is upon him. As to what is adequate notice :— If one custom is universally observed, it is sufficient to show that that custom was followed-; because, even supposing that the custom did not prescribe all that might be desired, no one is bound to do more than the custom of the place requires. If there is no fixed custom, reason- able notice must be given, notice of a reasonable kind, and in a reasonable time." The learned Judge proceeded to point out that, there being here no fixed custom either way, it was reasonable, more particularly on account of the narrowness of the river at that place, that tkere should be, not merely a general notice that the launch was to take place that tide, but also a specific notice, shortly before- hand, to show the precise time of its taking place ; and that it was also reasonable either to have had the harbour master in attendance, or boats at least to give timely warning to vessels. For the neglect of these precautions, the Vianna was pronounced in fault. The vessel she came into contact vsdth was likewise held in fault, for want of due look-out ; it having been proved that those on board had not even noticed that there were flags flying on board the launch (a). In the case of the United States, which also was a launch in the river Tyne, the ship launched was held in fault, simply on the ground that, although (a) The Vianna, Swab. 405. F 66 STEERING RUIiES. she had been decorated with flags to indicate that she was to be launched that day, and although she was launched at the proper time, viz., at the top of high water, yet she was let go without waiting for a signal from the harbour master, which it had been arranged that he was to give. " In the un- settled and varying practice as to the sort of sig- nal to be given," said Lord Chelmsford, in giving judgment, "it seems almost necessary that some arrangement should be made as to what should be the signal in each particular occasion." The vessel which had come across her track was held likewise in fault ; so that the damages Were divided (a). {a) The United States, 10 Mitch. 242. CHAPTER IV. WANT OF LOOK-OUT, AND OTHER FAp^LTS. Next to improper steering, the principal instances of faulty navigation, wMch may render a ship liable for collision damages, are — want of look-out, going too fast in a fog or through a crowded roadstead, and anchoring or mooring in an improper place. These will form the subject of the present chapter ; reserving for separate consideration, in the chapter which is to follow, the regulations concerning ships' lights and fog signals. I. On the subject of look-out, we have the foUow- Want of . . "^ look-out. mg decisions :— r- The ship Mellona was making her way through the Cockle Gat, on a dark hazy night, with frequent snow squalls. The look-out consisted of the master and one seaman ; the master had gone below to look at his chart, when another vessel, which had not been observed in the darkness, ran into the Mellona. The question was raised in the Admi- ralty Court, whether the look-out on board the Mellona was sufficient. It was for the Trinity Masters, said Dr. Lushington, to advise him whether, considering the state of the night, and the proximity of other vessels, such a look-out was a sufficient and F 2 68 WANT OF LOOK-OUT. What is a proper look-out. Look-out less essential for ship closehauled on starboard taok. proper look-out. " It is no excuse to urge," he con- tinued, " tliat, from the intensity of the darkness, no vigilance, however great, could have enabled the Mellona to have descried the George in time to have avoided the collision. In proportion to ibhe greatness of the necessity, the greater ought to be the care and vigilance employed ; and I cannot but think that, under all the circumstances of the case, if the master of the Mellona found it necessary to go below for the purpose of consulting his chart, he was bound to have called up another of the crew to supply his place on deck." The Trinity Masters took the same view, and the Mellona was pro^ nounced in fault for insufficiency of look-out (a). It is of course a matter of importance, not only that there should be a man or men on deck for the purpose of looking out, but that these should be stationed at the proper places. In the case of paddle steamers plying in a river or crowded' roadstead, such as the river Mersey, the proper place for a look-out man, it appears, is the bridge between the paddle boxes, from which elevation he can obtain a clearer view of approaching vessels, and can more rapidly communicate with the steersman (&). As the immediate purpose of a look-out is to give timely notice with a view to the alteration of the ship's coiu-se, a look-out would seem to be less essential in the case of those vessels which, being closehauled on the starboard tack, are entitled to {a) The Mdlona, 3 W. Eob. 7. (6) The WirraU, 3 W. Eob. 56. GOING TOO FAST IN FOG. 69 hold on their course without alteration, from what- ever direction they may be approached. In a case m which Dr. Lushington observed in his judgment that " it appeared that there was not any particular look-out on board " a vessel thus circumstanced, the Trinity Masters nevertheless found the other vessel solely in fatilt (a). In another case, a saiUng vessel was drifting up the river Thames, and no proper look-out was being kept : she was run into by a steamer, which ought to have avoided her. Here, notwithstanding the want of look-out, the steamer was pronounced solely in fault. " We think it right to say," said Dr. Lushington, "that there was a want of a proper look-out on board the Jane and Ellen, but that that want of a proper look-out did not contribute to this collision" (&). AH these cases faE within the general principle that, to render a ship liable for collision damage, it is not enough that there shall have been a fault ; that fault must have contributed to the collision. Applying this principle to the case of a vessel close- hauled on the starboard tack, it is not easy to see how, under ordinary circumstances, the want of a look-out on board can "contribute to the col- lision." II. Another fault of navigation consists in pro- Going too " . ^ fast in a fog. ceedmg at an excessive speed, m a crowded road- (fli) The Progress, 7 Mitch. 433. (6) The Emma, 10 Mitch. 399. 70 GOING TOO FAST IN TOG. stead or during a fog, so as unduly to increase the risk of collision. Case of In the case of the Perth, a steamer going in a freq^eJied fog through a place much frequented by coasters* channeiB. ^^^ goiug at the rate of twelve knots an hour, was held in fault, partly on account of her excessive speed (the Trinity Masters said she ought to have been reduced to half-speed); and partly because her engines were not stopped when shouting was heard from the other vessel (a). In the case of the Rose, where a steamer was coming down the Bristol Channel, during hazy weather, at the rate of ten or eleven knots, Dr. Lushington said that, if she had come into contact with another vessel without either seeing each other, he should have pronounced the steamer in fault. It might be a matter of convenience, he observed, that steam vessels should proceed with great rapidity* ■ but the law would not justify them in proceeding with such rapidity if the property and Hves of other persons were thereby endangered. The same rule had been apphed by Lord EUenborough, in a case where the driver of a mail coach, having run over and killed a man, excused his rapid driving on the plea that by contract with the post-office he was compelled to go at the rate of nine miles an hour. To this Lord EUenborough said that no contract with any public office, no con- sideration of pubhc convenience, could justify the (a) 3 Hagg. 417. IS no excuse. GOING TOO FAST IN FOG. 71 endangering the lives of his Majesty's subjects. The principle so laid down applied to the case of vessels navigating the seas (a). In another case, a steamer was condemned for proceeding through a part of the sea much frequented by colliers, in a dark and rainy night, at from nine to ten knots an hour (6). The following are cases in which steamers were condemned for going too fast ; the Iron Duke (c), for going from ten to twelve knots an hour, in a dark night, in a fre- quented channel off Point Lynas ; the Despatch {d), for coming up the Horse Channel at ten knots in a dark night. The having a Government contract to Mail contract go at so many miles an hour is no excuse, as against other vessels, for using undue speed (e). A steamer which in a dark night is rounding-to in order to come to anchor, should do so cautiously, and easing her speed (_/). And a rate of speed, which may not in itself be improper, may become so if it is continued after another vessel is sighted, in such a position as to involve risk of collision. Thus the steamer Eclipse was held in fault because, after coming in sight of a vessel, too late perhaps to have avoided her, her engines were kept going at full speed {g). In the case of the Birkenhead, (a) 2 W. Eob. 3. (6) The Gazelle, 2 W. Eob. 519. (c) 2 W. Eob. 384. (d) Swab. 139. (e) The Vivid, Swab. 92. (/) The Geres, Swab. 250. (g) Eclipse, 1 Lush. 423. 72 GOING TOO FAST IN FOG. a Queen's ship was condemned for not slowing or stopping her engines, in a case of doubt, in order to ascertain the true position of the other vessel (a). Case of These decisions are in cases where the steamer is steamer on the high seas, in a river or frequented channel. From the follow- ing case it appears that even on the high seas a steamer is not at liberty to proceed with very great rapidity during a fog, at any rate without taking some adequate precautions to prevent accidents. The steamer Europa, plying between Liverpool and Halifax, was nanning through a dense fog at the rate of twelve and a half knots an hour ; she was in the same parallel of latitude with Cape Clear, and about seven hundred mUes distant from it; that is, in the track for outward and homeward bound ves- sels trading with American ports, so that there might be more than ordinary probability of meeting ves- sels. A collision took place, and she sunk a sailing vessel. It appeared that no fog-horn was sounded, nor beU rung, on board the steamer; that there was only one .man at the wheel, and that there was no person stationed on deck to convey orders to the engine room. Judgment was given against the steamer. If a steamer goes so fast as twelve and a half knots in a dense fog, even on the high seas, every possible precaution should be taken, said Dr. Lushiugton, to prevent coHision. The law did not require the utmost caution that could be used ; it was not so extravagant as to require more than (a) 3 W. Rob. 79. See also the James Watt, 2 W. Kob. 277. GOING TOO S-AST IN FOG. 73 reasonable and customary caution ; but in the pre- sent instance the look-out, and the arrangement for promptly stopping the engines or shifting the wheel, were not sujBficient for a vessel going at such a speed in. a fog (a). The same principles are of course apphcable to Case of sailing vessels. The ship Virgil was condemned in vessels. damages for sailing on a dark and foggy night with her topmast studding sails set (6). In another similar case, the vessel so sailing was only held excused on the ground that there were vessels in her wake, and to avoid being overtaken by them it was thought prudent to carry a press of canvas on her (c). The brig Victoria was held in fault, for running at six knots an hour at night, through a crowded anchorage ground in the Thames (d) ; and the Pepperell, for going at six knots and a half through a crowded fishing ground (e). (a) The Ev/ropa, 14 Jurist, 627. (J) 2 W. Bob. 201. (c) The Ebenezer, 2 W. Eob. 212. (i) 3 "W. Eob. 56. (e) 1 Swab. 12. The case of the Itinerant furnishes a seeming exception to the general current of the decisions, as above recorded ; an exception -which must be applied with great caution. The ship Itinerant was sailing in a very dense fog with her studding sails set ; a collision ensued ; and it was contended that she was in fault for not having shortened her speed. Dr. Lushington, in giving judgment, observed that it was unquestionably the duty of every master of a ship, whether in an intense fog or great darkness, to put his vessel under command, so as to secure the best chance of avoiding acci- dents, even at the expense of retarding his voyage ; that, for this pur- pose, it might in many cases be his duty to take in his studding-sails, 74 GOING TOO FAST IN FOG. Moving at MovLng at all' in* a fog may in some cases be fauit!*^ * * moving too fast, and so a fault. In the case of the Girolamo, where a dense fog came on soon after the vessel had passed Blackwall, Sir John NichoU said, it seemed to be admitted that if the fog had come on before the Girolamo had left the docks, she ought not to have set out, and, if so, it was her duty, when such a fog did not come on, to have brought up. He held even that the master ought to have interposed when the pilot in charge of her would have gone on, and have insisted on bringing her to anchor {a). Although this last part of the decision, as will be seen, has since been over- ruled, yet in other respects this decision has re- cently been cited, not without approbation, by Dr. Lushington. In the case of the Wild Rose, a ferry steamer had left Seacombe Slip, in order to cross to Liverpool, at a time when the weather was tolerably clear, but a very dense fog came on before she got half-way across, and she came into colUsion with a but that on this head no general rule could be laid down. In the present instance the opinion of the court was that it might have been prudent for the Itinerant to have taken in her studding-sails ; but the Court and the Trinity Masters were also of opinion that the fog was so dense that the accident would have occurred, even although this precaution had been adopted. The claim against the Itinerant was acordingly dismissed (The Itinerant, 2 W. Bob. 236). The masters of ships cannot safely be advised on the strength of this decision, that they may take less precaution in a very dense fog than in one which is not so dense. In fact, it is difficult to reconcile this decision with the remarks of Dr. Lushington in the case of the Mellona, cited in the beginning of the present chapter. (a) 3 Hagg. 174. GOING TOO FAST IN FOG. 75 vessel in the river. It appeared that the steamer was going at half-speed, with her steam whistle sounding, a good look-out, and aU proper precau- tions ; and she was pronounced not to be in fault. In giving judgment, however, Dr. Lushington made the following observations : — " In the course of the argument it was hinted, though not argued, that the fog might have been so dense that it was in- cumbent upon the steamer not to have proceeded upon her usual occupation, because of the dangers which might result from her doing so. Had the circumstances given in evidence made out such a case, it would have been the duty of the Court to have taken cognizance of it, and to have governed its judgment according as it was proved or not proved. I wish now, as this is a matter of great im- portance, to make reference to the question whether steamers are at liberty to follow their avocations in a thick fog, when following that avocation might produce consequences damaging to property or to life." The learned Judge then referred to the case of the Girolamo, and said : " Perhaps I may not go quite the whole length which the learned Jiidge went on that occasion, but the general principle I do adopt, namely, that if there be an opportunity of stopping, instead of attempting to foUow a course which would produce injury possibly to life and certainly to property, then, notwithstanding what may be the convenience of the parties, notwith- standing the vu-gency of the passengers, it is the duty of the persons who have the control of that steamer or other vessel to hold their hand. 76" ANCHORING IS But it is not necessary that I should decide that question now. At the time when the steamer set off upon this trip, it appears that it was somewhat clear, and that almost immediately afterwards a dense fog came on ; and the .question would be a comphcated one, whether she was under a necessity to have gone back again under those circumstances, or whether she was at hberty to have completed her voyage." From the result, it appears that the Court, assisted by the Trinity Masters, took the latter view (a). III. The third instance of faulty navigation con- Anchoring sists in anchoring or mooring a ship in an improper improperly. .Q^g^^jjgj.^ ^ gj^jp -,^}iich auchors too near another ship, so as to give her what is called " a foul berth," or which neglects to drop a second anchor when she ought to do so, and then in a gale drifts foul of the other vessel, will be held answerable in dam- ages (6). In a case where a coUision ensued from the parting of a steamer's cable during bad weather, the steamer was held in fault for having brought to, with a single anchor, so near a ship riding in the Mersey that the slightest accident must lead to a collision (c). In another case, a ship was condemned for having been placed aground in a tidal harbour, so near to another that, when the > (a) The Wild Rose, tried Nov. 16, 1866. See also the Borussia, Swab. 94, where a ship was pronounced in fault, simply for moving from dock to dock, on a dark foggy night, j (6) The Volcano, 2 W. Eob. 340. (c) The Egypticm, 8 Mitch. 496. IMPEOPER PLACE, 77 vessels heeled over, whicli they did at the fall of the tide, they came into contact and damaged each other (a). A ship, navigated in a pecuHar manner, which has the effect of incapacitating her for the time from Dredging moving out of the way so as to avoid collision, €. g., which is being dredged down a river, does so at her own risk, and will be held answerable for the damage done by a collision resulting from such in- capacity (6). (a) The Lidskjalf, Swab. 118. (6) The Hope, 2 W. Eob. 8. CHAPTER V. LIGHTS AND FOG-SIGNALS. Eules of common Bea-law. Ships in motion not bound to carry lights. Anotlier fault, conducive to collisions, is the neglect to carry or exhibit a light, or to blow a horn or use some other signal during a fog. It has been thought in this country that the customary sea-law is not sufficiently stringent on this head; to remedy which, Regulations have been issued under the authority of Acts of Parliament. As these Regula- tions, however, are not universally obHgatory upon foreign ships, and consequently cannot in all cases be appealed to on behalf of foreign ships as against those of this country, it is necessary to exa- mine the common sea-law apart from Regulations, and it may be convenient to take this branch of the subject first. Apart from statutory or other municipal Regula- tions, it appears that there is no obligation on a ship which is in. motion to carry a hght at her mast- head, or any other light, even whilst navigating a frequented channel, such as the entrance of the Mersey, off Point Lynas (a). There is a rule that, (a) The Rose, 2 W. E. 4 ; The Iron Duke, 2 W. E. 382 ; The Benwres, 7 Notes of Cases, 542. LIGHTS. 79 if a vessel wants a pilot, she shews a light, and the pilot should also shew a light (a). A ship which is lying-to is to be treated, with reference to hghts, as a vessel under sail (6). But, though not bound But must to carry a light, a ship that is in motion is bound, when nearing on the approach of another vessel, to shew some ot^ier vessels. sufficient light, in time to give the other ship an opportunity of avoiding her (c). This obhgation applies to the case of a ship closehauled on the star- board tack, which, though entitled to hold on her course, is bound to give such warning of her pre- sence to other vessels {d). The ordinary mode of shewiag a light under such circumstances is, by holding a lantern over the bulwarks, and shew- ing or " flashing " it in such a manner as to attract the attention of the other vessel, and to make it clear that it does not come from a lighthouse or other fixed Hght. Even in the case of ships lying at anchor, it does SMps at not appear that there is, apart from statute, a uni- always bound versal obligation to have a masthead Hght hoisted ught^^ * at night. Thus, where a ship was lying at night off the South Foreland, the Trinity Masters pronounced that she was not bound, whilst so lying, to have a light fixed ; and that, as she exhibited a light as soon as the other vessel was seen, no blame attached to (o) 2 W. B. 385. (6) City of London, Swab. 249. (c) See The Juliana, Swab. 21 ; The Olivia, 6 Law Times, N. S. 398. {d) The Eclipse, 1 Lush. 422. 80 LIGHTS. Exceptions. Statutory " rtions. her (a). In the case of the Victoria, Dr. Lushing- ton said, that there was no general obligation upon vessels at anchor at night to carry or exhibit a light, but that circumstances might exist which would render it obligatory on such a vessel to ex- hibit a hght for her own safety, and for the safety of other vessels. In the case before him, as the ship was at anchor in a track much frequented by other vessels (she was off the Middle Light in the South-west Eeach in the Thames), the Trinity Masters were of opinion that, looking to the period of the year, the state of the night, and the number of vessels likely to be in the neighbourhood of her, it was her duty, under such a combination of cir- cumstances, to have had a visible light burning. No light was hoisted, nor was one even exhibited, and the vessel was accordingly pronounced in fault (b). We come now to the statutory Regulations. In the year 1848, directions were issued by the Lords Commissioners of the Admiralty, ordering that Her Majesty's steam ships, and recommending that all other steamers navigating the coasts and channels of this country, should between sunset and sunrise carry three lights, viz., a bright white light at the foremast head, a green Hght on the starboard bow^ and a red light on the port bow. By this combiua- (a) The Loehlibo, 3 W. Bob. 331. (b) The Victoria, 3 "W. JRob. 56. A Dutch ship, at anchor in a fair way, is bound to shew a light, notwithstanding the Dutch law to the contrary {The William Hutt, 4 Mitch. 718). " LIGHTS, 81 tion of lights it was intended to exhibit to other vessels not merely the situation of the steamer, but also the course she was pursuing. In 1851, by the Act 14 & 15 Vict. c. 79, power was given to the Lords of the Admiralty to issue regulations which should be of binding au.thority. Accordingly, in 1852, a set of Admiralty Regulations were issued, directing that all British seagoing steam vessels, wherever they might be, should at night, whilst in motion, carry the three lights as above described, and whilst at anchor, a common bright light ; and that sailing vessels, whilst in motion, should, upon being approached by or approaching any other vessel, show a bright Hght in such a position as could be best seen by such other vessel, and in sufficient time to avoid colhsion ; and, whilst at anchor, should, hke steamers, exhibit a constant bright light at the masthead. These Regulations continued in force until 1858 : they were then revoked, and a new set of Admiralty Rules were issued. These leave the hghts of steamers as they were, but with the additional direction that a steam vessel under sail only should not carry her mast- head Hghta With regard to sailing vessels, it was directed that, when under way or being towed, they should carry green and red lights on either bow, similar to those of a steamer, but no masthead light, this latter being accordingly made the dis- tinguishing mark of a steamer. Saihng pilot vessels were to carry only a white light at the masthead, and to exhibit a flare-up light every fifteen minutes. In other respects the rules of 1852 were left un- G 82 LIGHTS. Rules now in force. Lights. Lights for steam ships. altered. So matters remained until the Shipping Act Amendment Act of 1862, which led to the framing of a new set of rxiles, issued under the authority of the Board of Trade. These being the Rules now in force (since June 1st, 1863), they are set forth verbatim, as follows : — Preliminary. "Art. 1. — In the following Rules, every steam ship which is under sail and not under steam is to be considered a saiHng ship, and every steam ship which is under steam, whether under sail or not, is to be considered a ship under steam. Rules concerning Lights. Art. 2. — The hghts mentioned in the following Articles, numbered 3, 4, 5, 6, 7, 8, and 9, and no others, shall be carried in all weathers, from sunset to sunrise. Art. 3. — Seagoing steam ships when under weigh shall carry {a) At the Foremasthead, a bright white light, so fixed as to show a uniform and unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the ship, viz., from right ahead to two points abaft the beam on either side, and of sucli a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least five miles. LIGHTS. 83 (6) On the Starboard side, a green light, so constructed as to throw a uniform and un- broken light over an arc of the horizon of ten 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 7xd light, so constructed as to throw a uniform and unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port 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. (d) The said green and red side fights shall be fitted with inboard screens, projecting at least three feet forward from the fight, so as to prevent these fights from being seen across the bow. Art. A.- — Steam ships, when towing other ships. Lights for shall carry two bright white masthead fights '"'''™ *"^' vertically, in addition to their side fights, so as to distinguish them from other steam ships. Each of these masthead lights shall be of the same construction and character as the masthead lights which other steam ships are required to carry. Art. 5. — Saifing ships under weigh, or being Lights for 2 sailing ships. 84 UGHTS. Exceptional lights for small sailing Lights for ships at anchor. Lights for pilot vessels. towed, shall carry the same lights as steam ships under weigh, with the exception of the white masthead lights, which they shall never carry. Art. 6. — Whenever, as in the case of small vessels 'during had weather, the green and red lights cannot be fixed, these lights shall be kept on deck, on their respective sides of the vessel, ready for instant exhibition ; and shall, 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 outside with the colour of the Hght they respectively contain, and shall be provided with suitable screens. Art. 7. — Ships, whether steam ships or sailing ships, when at anchor in roadsteads or fair- ways, shall exhibit, 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 eight inches in diameter, and so constructed as to show a clear, uni- form and unbroken light, visible all round the horizon, and at a distance of at least one mile. Art. 8. — Sailing pUot vessels shall not carry LIGHTS. 85 the lights required for other sailing vessels, but shall carry a white light at the mast- head, visible all round the horizon, and shall also exhibit a flare-up light every fifteen minutes. Art. 9. — Open fishing-boats and other open Lights for boats shall not be required to carry the side and boata. lights required for other vessels ; but shall, if they do not carry such lights, carry a lantern having a green sHde on the one side and a red shde on the other side ; and on the approach of or to other vessels, 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. Fishing vessels and open boats when at anchor, or attached to their nets and stationary, shall exhibit a bright white light. Fishiag vessels and open boats shall, however, not be prevented fi:om usiag a flare-up in addition, if considered expedient." The decisions bearing on these Regulations may be classed under the following heads : — 1st. Those which explain the meaning of the terms used : 2nd. Those which refer to the onus probandi ; 3rd. Those which deal with the reasons which may excuse the not showing a hght : 4th. Those which illustrate the manner in which the position of a light seen is to regulate the steering of the ship from which it is seen. 86 LIGHTS. Cases explaining terms. What are ' sea-going What is the proper posi- tion of the lights. A central three-coloured light is not enough. 1st. Oases explaining terms : — The term " sea-going ships " has been decided not to apply to fishing vessels. These are merely bound to exhibit a light upon the approach of another vessel, as required by the common law of the sea (a). Nor, in the case of a steamer which habi- tually plies in a river, as a ferry boat, but occasion- ally goes out to sea, does the term apply to her so long as she is in the river. " I think it makes no difference," said Dr. Lushington, " that there may be times and seasons when she goes out to sea and may be required to carry the three lights " (b). Some questions have arisen as to the proper position of the red and green lights. The statute directs that they shall be fixed " on the starboard side " and " on the port side " of the vessel respec- tively. This expression does not mean that the lights are to be actually placed on the ship's side. " My understanding of the directions as to the lights," said Dr. Lushington, "is, not that there is aiiy positive order that they shall be fixed on the starboard side, speaking of the side alone, but that the green hght shall be on the right hand, and the red on the port hand, or left side of the vessel " (c). On the other hand, it appears that there must be (a) The Olivia, 6 L. T. N. S. 398. Queen's ships, it may be here mentioned, are not bound by the statute, yet must show a rea- sonably sufficient light {The Leda, 7 Mitch, p. 1519). It has been held a fault to sail so close to another ship that your light is obscured by her sails {The ZoUverein, Swab. 96). (6) The Tymmouth, 9 Mitch. 114.) _^ (^^ (c) The City of Carlisle, 8 Mitch. 943. ""^^^ : LIGHTS, 87 two separate lights, one placed on one side, and the other on the other side of the vessel. It is not enough, as was at one time supposed, to have a single three-coloured lamp hung at the bowsprit end, and so constructed as to cast a green light on the starboard side, a red light on the port side, and a white light when seen end-on (a). The lights must be so erected as to be fairly visible from on board other vessels (6). 2nd. The cases which bear upon the question of Onmprob- 7 7 . . , „ , andi as to onus prooandi, with reference to the carrymg of carrying of %hts, are the following : — '^ ^' In every case of collision at night, if it is alleged in the pleadings that the colhsion was occasioned by the absence of a sufficient statutory light on board one of the colliding ships, the burden of proof that there were such lights rests with that Rests with 1 T> inni))'iT-vTi- vessel denying vessel. xJeyond all doubt, said Dr. Lushmgton, the absence in the case of the City of Carlisle, cited above, ° '^ " the burden of proof is upon those who allege that they carried the lights. There is no doubt about it in law, nor is there a doubt about it in common sense ; because, of course, those who are on board the vessel must be able to give the best evidence as to what was the state of things on board that vessel, and those who never saw it until they came into colhsion can give no evidence at all, except that they did not see it " (c). (a) The Mangerton, Swab. 124 ; TM Urania, Swab. 255 (5) The City of Carlisle, 8 Mitch. 943. '^l v^'^ LVv^^^A-.^ 'X.^H^ (0 8 Mitch. 943. IQ.^ K\\L^-^(.^y^ 'b 88 LIGHTS. Or with Further, if it is set up as a defence, on the part vessel alleging _ , ^ ■*■ that the of a vessel which had not a light, that the absence lights was of that light did not contribute to the collision, immaterial. -^ ^^^^^ ^j^]^ ^^-^at vessel to estabHsh that position by proof Where there has been a breach of the rules, the primd facie presumption is that the col- lision was occasioned thereby; and the onus is cast on those who have been guilty of such breach of rebutting this presumption, and showing that the breach did not, in fact, occasion the ensuing damage (a). In the case of the Flavia Gioja, in 1858, a ship which had not a light when she should have had one, was held not thereby prevented from recover- ing collision damage, it being distinctly proved that the absence of the light in no way contributed to collision ; the ship having, in fact, been distinctly seen from the other vessel at a distance sufficient, had proper measures been taken on board the latter vessel, to have prevented a collision. It was in argument pressed upon the Court, "with a per- tinacity," said Dr. Lushington, " savouring of des- peration," that the circumstance of not carrying a light should operate as an estoppel against any claim on the part of the Flavia Gioja; but this contention was not admitted (&). (a) The Palestine, 13 Weekly Eep. 111. (J) 3 Mitch. 757. See also, to the same effect, the cases of The Vivid, Swab. 89, and The Juliama, Swab. 22. The testing ques- tion is, Had the light been there, would the collision have occurred ? (Swab. 22.) LIGHTS. 89 In the case of Morrison v. General Steam, Navi- gation Company, it was laid down by the Court of Exchequer that the question in cases of collision must always be, whether the parties had contri- buted to the collision by their own carelessness ; that no change had been effected in the law in this respect by the Admiralty Eegulations, and conse- quently that, if it could be clearly established that, a vessel having no light had been run into by another vessel from sheer carelessness and negli- gence in not keeping a good look-out, the injured party could recover. It would of course be other- wise if the absence of the light had contributed to the collision (a). 3rd. The following decisions may be classified Excuses for under the head of excuses for not carrying a light : Ught. The presence of the moon is no excuse. " It is The moon not to be said," said Dr. Lushington, "because it was a bright night that it was not necessary to obey the Act of Parliament." It would, of course, be necessary to show that the absence of the hght was a cause conducing to the collision ; and in the case referred to this was proved. It was stated in evidence that when the moon is shining at the back of a vessers sails, she can be seen by the moonlight a great way off; but if the moon is shining in the front of her saUs she can be seen («) 17 Jurist, 507. See also, to the same effect, The Panther, 17 Jurist, 1037; Dowell v. General Steam Ncmgation Compomy, 1 Jurist, N. S. 800. IS no excuse. 90 LIGHTS. Difficulty of fixing lights, owing to a gale. When lights carried away hy a sea, must at once be replaced. no distance ; and that, under such circumstances, her hull would be seen before her saUs (a). In the case of the Calla, it was pleaded that, owing to the heavy gale and a strong sea which was frequently breakiag over the vessel, it was found to be impracticable to keep her green and red lights fixed as appointed by the Admiralty Regulation, but that they were kept Hghted on deck and were exhibited on the approach of the other vessel. The learned Judge, in summing up to the Trinity Masters, said that the Calla, not having carried her coloured lights fixed in the ordinary manner required by the Admiralty Rules, was bound to make out a sufficient justification ; and that, if they were of opinion that no circum- stances were proved sufficient "to justify the non- observance of the rule, and that the collision was in any degree occasioned by the lights not being exhibited as required, the Calla would be to blame for the collision. The Trinity Masters found that the Calla had not proved that it was impracticable to carry her coloured lights fixed, and that the col- lision was caused by her default in not exhibiting her light in proper time ; and she was accordingly condemned in damages (&). A vessel whose regulation light had been carried away in tempestuous weather, was held in fault for a collision occasioned by the absence of such Hghts, (a) The Gity of London, Swab. 248 ; affirmed in P. C, Swab. 300. (6) The Calla, Swab. 465. See also, to the same effect, The Livingstone, Swab. 519. LIGHTS. 91 because the master had neglected to replace them, although he had an opportunity of doing so, as the vessel had been at anchor for more than a week at the Downs, and had communication with the shore (a). In another case, where the lamps had been dis- Must at least abled in severe weather, so that there were no * '"" regulation Hghts on board, a ship was condemned in damages for not having shown some kind of light upon the approach of the other vessel (6). A striking example of the strictness with which the Admiralty Court insists on the observance of the Statutory Regulations is furnished by the case of the Georqe Arhle : where a ship, driftinff help- illustration of , ,. , , , . p -1 above rule. less, disabled, runmng out to sea alter an accident, was pronounced in fault for not having the regula- tion lights set when a coUision took place. Whilst at anchor in Winterton Roads, this vessel had been run into by the ship Charlemagne, had lost her cutwater and bowsprit ; which, with the head gear, were hanging under her bows ; and, having parted from both her anchors, was of necessity run out to sea to weather the gale which was blowing. Sails were hoisted, but they were immediately blown away, and the ship drove before the wind unman- ageable, partly from want of the head-stays, and partly because of the wreck which was hanging under her bows. In this distressed condition, the crew appear to have forgotten to put up the regu- (a) The Robert Ingram, 1 Lush. 327. (6) The Eclipse, 1 Lush. 422. 92 LIGHTS. lation lights. After a time she struck upon a bank and beat over it, her wheel chains broke, and she became totally unmanageable, and drifted foul of two vessels at anchor. It was contended, in argu- ment, that the helpless condition of the vessel fur- nished an excuse for the absence of the hghts ; in fact that, under the circumstances, the George Arkle could not be considered as a vessel under way. In the Admiralty Court, however, the George Arkle was pronounced solely in fault, on the ground that she was bound to have carried the coloured lights,* and that the want of them contributed to occasion the collision. This decision was affirmed in the Privy Council. The unmanageable condition of the vessel, it was said in the judgment, was imma- terial ; for it was proved that the Violet, one of the vessels run into, might and probably would have avoided the collision, if any coloured light had been exhibited on board the George ArTde (a). Of the manner 4th. The last point to be considered in connexion position of with the subject of lights, is, the manner in which m^t\ffect tli^y indicate to the vessel which sees them the the steering, position and description of the vessel that carries them ; and, as a consequence of this, the manner in which the seeing of a Hght is to determine the steering of the vessel from which it is seen. The following diagrams, in illustration of this, have been appended by the Board of Trade to their pubhshed Eegulations : — (a) 1 Lush. 383. LIGHTS. 93 " When both red and green lights are seen : Diagrams A sees a red and green Hght ahead ; A knows Board of a vessel is approaching her on a course '^'^^ ^' directly opposite to her own, as B. If A sees a white masthead light above the other two, she knows that B is a steam vessel. When the red, and not the green light is seen : A sees a red light ahead or on the bow ; A knows that either, 1, a vessel is approaching her on her port bow, as B, cx> ^^ Or 2, a vessel is crossing in some direction to port, as D D D. If A sees a white masthead Hght above the red light, A knows that the vessel is a steam vessel, and is either approaching her in the same direction, as B, or is crossing to port in some direction, as D D D. 94 LIGHTS. When the green, and not the red light is seen : A sees a green hght ahead or on the bow ; A knows that either 1, a vessel is approaching her on her starboard bow, as B, Or, 2, a vessel is crossing in some direction to starboard, as D D D. If A sees a white masthead light above the green light, A knows that the vessel is a steam vessel, and is either approaching her in the same direction as B, or is crossing to starboard in some direction, as D D D. With reference to this branch of the subject, there are the following decisions : — In the case of the Ceres, a barge, seeing a steamer's red Hght broad on her port bow, was held justified in showing no light ; as the vessels could not, from the position of the red light, be at that time " approaching " one another (a). Mistake When the position of two vessels is such that if the"acddent™ A's green light were seen, B ought to starboard, oneS!"'^ but otherwise to port, B wiU be held right in (a) Swab. 250. LIGHTS. 95 porting in case A's green light has been accident- ally extinguished. Thus, where the steamer Tioh Roy saw only a white masthead light on the star- board bow, and thereupon her helm was ported, which in the opinion of the Trinity Masters was the right course for her to take on seeing such a light alone, the steamer was not held to be answer- able in damages, it appearing that, in fact, the light so seen belonged to a steamer, whose green hght ought also to have been seen from the Rob Roy, had it not by accident been extinguished just previously. It is obvious, from what has been said, that, when a steamer's green and masthead lights are seen on the starboard bow, the proper course is, not to port, but to starboard the helm (a). When a green Hght is seen on the starboard When green bow, it is dangerous to port if the light is more starboard than a point abeam ; since, as the ship must be than one ° crossing to starboard, in one of the directions shown dangCTousTo in the last diagram, the effect of porting would be P""^- to bring the other ship across her track. Dr. Lush- ington said, " supposing two vessels are approach- ing each other in a direct line, so that you see the red and green lights, then I apprehend it is quite clear the rule (of porting the helm) ought to pre- vail ; and it is possible the rule ought to prevail where you see a vessel carrying the green light a single point on your starboard bow ; but then it (a) The Rob Boy, 3 W. Eob. 190. 96 LIGHTS. becomes very dangerous in case it should be carried to any further extremity " (a). The Regulations, as illustrated by the decisions here given, appear amply sufl&cient for the purpose of indicating the manner in which the steering of a ship should be regulated by the position of a ship's lights seen at night in the open sea. Fog-Bignais. Concerning fog-signals, the regulations are as foUows : — "Art. 10. — Whenever there is fog, whether by day or night, the fog-signals described below shall be carried and used, and shall be sounded at least every five minutes ; viz. : — "(a) Steam ships under weigh shall use a steam whistle placed before the funnel, not less than eight feet from the deck : " (6) Sailing ships under weigh shall use a fog- horn : " (c) Steam ships and sailing ships when not under weigh shall use a bell." The Regulations do not attempt to define — it would indeed have been impracticable to do so — what degree of density in the atmosphere shall con- (d) Th& Mxander, 2 Weekly Reporter, 543. See also the Cleopatra, Swab. 135, and the Sylph, Swab. 236, to much the same effect. In the former case, the green light was seen two points abeam, and the vessel was held by the Trinity Masters to be justified in porting : in the latter, it was three or four poiiits abeam, and the ship was condemned for doing so. LIGHTS. 97 stitute sucli "fog" as to necessitate the use of these signals. It seems reasonable to suppose that, in a crowded roadstead or other situation where the risk of collision is greater than ordinary, a slighter degree of thickness of the air should bring the fog signals into use, than under other circum- stances. In the case of the Wild Rose, the ship Indepen- dence was lying at anchor in the river Mersey, and did not ring a bell during weather which was described by witnesses on one side as " misty, but not foggy," and on the other as " a dense fog." In giving judgment. Dr. Lushington said, " that, on the morning when the collision took place, there was that which any reasonable man would have termed a fog existing at some time or other in the river Mersey, there cannot be a doubt. You have the entries from three of the landing places, and you have the fact that the steamers which crossed back- wards and forwards, all of them used the whistle ; that I therefore assume to be a proved circum- stance in this case " (a). (a) Wild Rose, tried Nov. 16, 1865. H CHAPTER VI. INEVITABLE ACCIDENT, Accidental collisions, for which neither vessel is responsible to the other, ought, one should think, to be extremely rare ; since, to constitute such a collision, it must appear that each vessel has done all that "was requisite to give to the other timely warning of her approach, each must have kept a sufficient look-out, neither must have been moving at an improper speed, and each, on seeing the other, must have taken the proper steps in order to avert a collision. With such a combination of precau- tions, it is difficult to see how a collision should be possible. There are, however, one or two instances of collisions really accidental in this sense. Definition. The following definitions of an accidental collision have been given in the Admiralty Court. " In my apprehension," said Dr. Lushington, in the case of the Virgil, " an inevitable accident in point of law is, that which the party charged with the offence could not possibly have prevented by the exercise of ordinary care, caution, and maritime skiU" (a). In the subsequent case of the Lochlibo, the same (a) 2 W. Bob. 205. INEVITABLE ACCIDENT. 99) principle was laid down in almost the same words. " ^y inevitable accident, I must be understood as meaning, a collision which occurs when both parties have endeavoured by every means in their power, with due care and caution, and a proper display of nautical sldll, to prevent the occurrence of the acci- dent " (a). Again, in the case of the W. V. Moses, the same learned Judge defined inevitable accident to be " that accident, that calamity,, which occurs vsnthout there being any practicable means of pre- venting its taking place ; it is that accident which takes place when everything has been done which ordinary skill, care, and ability could do to prevent accident " (6). Examples of such "inevitable accidents" are as follows : — When a steamer was roundipg-to in order to' shifting of come to an anchor, and the other vessel, either not- rj,^^*^;^".^^ seeing her Kghts or baffled bv their change of *° 1°™® *° , , ^ •' ® ancnor. position, and in consequence unable to make out her course, it being an extremely dark night, steered as if the steamer were coming towards her,- the collision which ensued was held to be the result of inevitable accident {c)l The fact that a third vessel near the colliding Sudden ships has unexpectedly thrown herself in stays, so posftfonVa as to confuse and complicate the manoeuvring, '^^^ °^*'^' and thus occasion the collision, may, it would (a) 3W. Eob. 318. (6) 6 Mitch. 1553. (c) Shmmn, 1 W. Eob. 463. h2 100 INEVITABLE ACCIDENT. seem, cause the collision to be regarded as acci- dental (a). Jamming of The jamming of a cable in letting it go, whence moment of a collision ensusd, was held sufficient to excuse the letting go. ^j^.p ^^ ^j^^ ground of accident. It was considered, both in the Admiralty Court and in Privy Council on appeal, that there was no want of foresight or precaution on the part of the master in any parti- cular, and that the jamming of the cable must be attributed to pure accident (6). Missing stays. That there has been an accident, is not enough, if, notwithstanding it, there was time enough to have remedied its effects before the collision, had proper measures been taken. Thus, where a vessel had missed stays in a squaU, this was held not to be a sufficient excuse for the collision which ensued, because it appeared that, after missing, there was time to have paid-off before the wind by squaring the mainyard (c). Pog suddenly An intense fog, suddenly coming on, or coming on under circumstances which justify the ships which collide in continuing their respective courses, may excuse both, if it is so dense that all due pre- cautions are insufficient to prevent a collision. Thus in the case of the Itinerant, where that vessel was sailing in a dense fog with her studding-sails set, and urged in her excuse that she was obHged to carry a press of sail to make way against the tide (a) See the Mobile, Swab. 73. (6) Peerless, 1 Lush. 111. (c) Kingston hy-Sea, 3 W. Eob. 156. coming on. INEVITABLE ACCIDENT. 101 and to avoid being run into by vessels in her wake, tbe Court were of opinion that it might have been prudent for her to have taken in her studding-sails, but that she was nevertheless not answerable in damages, because they were further of opiuion that the collision was not occasioned by the omission of the Itinerant so to do, the weather being such that the accident would have occurred, even though this precaution had been adopted (a). (a) Itinerant, 2 W. Bob. 243. See ante, 73. CHAPTER VII. OF THE NON-JjIABILITY FOB THE 40TS OF A COMPULSORY PILOT. Ship not liable for faults of compulsory pilot. Older deci- sions on this BubjeQt. The principle on which a shipowner is made liable for damages done to another ship by improper navigation on the part of the captain oj: crew, is, that a master is responsible for the misconduct of the servants in his employ. A pilot who is taken on board by compulsion of law, and who is conse- quently not appointed, nor can be dismissed, by the shipowner, is not considered as his servant, in such a sense as to make the shipowner responsible for the pilot's misconduct. It is only by degrees that this principle has come to be recognised by the Admiralty Court. In the earliest reported case on this subject, it was held by Lord StoweU that a foreign shipowner could not claim exemption from liability for a collision, where his ship was in fault, on the plea that the coUision was the result of orders given by a regular pilot. " The owners," said the learned Judge, " are respon- sible for the acts of the pUot, and they must be left to recover the amount as weU as they can from him " (a). In the case of the Christiana, there was (a) Neptune the Second, in 1814, 1 Dods. 467, COMPULSORY PILOT. 103 cited in argument a clause of the General Pilot Act (6 Geo. IV., c. 125, s. 25), which enacted that " no owner or master of any ship or vessel shall be answerable for any loss or damage which shall happen to any person or persons whomsoever, from or by reason or means of any neglect, default, in- competency or incapacity of any licensed pilot acting in the charge of any such ship or vessel under or in pursuance of any of the provisions of this Act." In the decision of this case. Sir Christopher Robinson held himself to be bound by this clause in the case of a foreign as well as of an English ship (a). But, in the subsequent case of the Girolamo, the same learned Judge considerably narrowed the effect of the PUot Act, by laying down the positions, that this statute'could not affect the jurisdiction of the Court of Admiralty in cases of collisions with foreign ships upon the high seas (&) ; that the clauses in the Act exempting " owners " from KabUity might be read as merely taking away their personal liability, leaving the remedy in rem, intact ; and that the taking of a pilot could not be considered compulsory, when there was no penalty attached to a refusal to take him, beyond the liability to pay the regular charge for pUotage, whether a pUot were employed or no (c). On all these points, as will be seen, the decision in this (as) Christiana, 2 Hagg. 185. (6) THs has since been overruled, on tte ground that whoever seeks a remedy must seek it according to the hx fori {Vernon, \ W. Eob. 319.) (c) Girolamo, 3 Hagg. 169. 104 COMPUIiSORY PILOT. case has since been overruled. In the cases, how- ever, of the Baron Holherg (a) and the Carolus (6), it was again held, still by Sir C. Robinson, that the provisions of the Pilot Act could not affect the position of foreign shipowners in the Admiralty Court, The law on this subject was first (so far as the Old decisioiiB Court of Admiralty is concerned) placed on its present basis by Dr. Lushington, in the important decision of the Marias case, in the year 1839. In this judgment, after a critical review of the previous cases, and particularly of two apparently conflicting decisions in the Common Law Courts (c), the (a) 3 Hagg, 244. (J) 3 Hagg. 343 n. (c) In Carruthers v. Sydebotham, 4 M. & S. 77, where the question was one of insurance, Lord EUenborough had said, "If the master cannot navigate without a pilot except under a penalty, is he not under the compulsion of law to take a pilot 1 And, if so, is it just that he should be answerable for the misconduct of a person whose appointment the provisions of the law had taken out of his hands, placing the ship in the hands and under the conduct of the pilot 1 " The other decision referred to was that of Tlie Attorney-Oeneral v. Case, 3 Price, 302, where a ship, riding at anchor in the river Mersey, and having a pilot on board, drifted, and, through the improper conduct of the pilot, came into collision with other ships in the river. Here the ship was held liable for the damages. Had she been at the time proceeding to sea, under the charge of a pilot taken by compulsion of law, then, said Thomson, C. B., " it might have been a fair question, whether the owner would have been liable; though there have been cases which show that though a pilot may be on board, the master is, in some instances, deemed responsible notwithstanding." But here the taking of a pilot, while the ship was at anchor in the Mersey, was a voluntary measure, and the pilot was therefore to be regarded as the servant of the shipowner. dOMPDLSORY PILOT. 105 learned Judge came to the conclusion that, on grounds of natural equity, independently of the provisions of the Pilot Act, the owner of a ship should not be held liable in damages for a collision occasioned by the fault of a pilot compulsorUy taken on board. " If," he said, " the taking a pilot on board was compulsory, and the collision was occa- sioned by the fault of that pilot, I shall hold- the owners of the Maria exempt from responsibiUty, upon general principle, without reference to Acts of ParHament ; for, in that case, the pilot was not their servant, and the maxim ' quifacit per alium facit per se,' does not apply. If, on the contrary, the taking a pilot was voluntary, then he was the ser- vant of the owners, and the owners are responsible, unless the General Pilot Act, which takes away responsibihty, applies to a foreign vessel so circum- stanced, and to cases where it is optional to take a pilot or not." The learned Judge then proceeded to give his reasons for coming to the conclusion that, in the case before him, the taking of a pUot was compulsory, and accordingly dismissing the owners of the MaHa from the suit. " The opinion I have thus formed in this case," he added, " is founded upon the general principle of reason and justice, that no one should be chargeable with the act of another who is not an agent of his own election and choice, and I further think that it would be contrary to aU sense of equity, to say to the owners of a foreign vessel, you shall take a pilot of our ' selection, of our appointment : be he drunk or sober, negligent or careful, skilful or ignorant, you shall be responsible 106 COMPULSOEY PILOT. for Ms conduct, unless you choose to submit to the penalty, and penalty it is, of paying the pilotage for nothing " (a). The principle thus laid down by '.I)r. Lushington afterwards received the sanction of the English Legislature, in the following clause in the Merchant Shipping Act :— " No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law " (6). The exemption thus given by statute is to be construed strictly ; the pilot must be " acting in charge of the ship," if his act is to relieve the ship fromliabihty (c). The statute, however, is merely declaratory of a principle based, as has been said, upon natural equity. Consequently, whether or no the words of the statute are sufficiently extensive to apply to foreign ships coUiding on the high seas, such ves- sels are on general principles entitled to this exemption (d). ' To excuse the In order to excuse the ship, the fault which has fault must be occasioned the collision must have been the act of that of the pilot alone. (a) Mwria, 1 W. Eob. 95. (6) 17 & 18 Vict. c. 104, s. 388. (c) General Be Gaen, Swab. 10. (d) Johanna Stall, 1 Lush. 312. COMPULSOBY PILOT. 107 the pilot alone (a). If the accident were occasioned by the joint misconduct of the pilot and crew, the And of the ship would be held liable (&). The pilot must be cha°rge of thf actually in charge of the deck at the time of the ^®°^" collision. Thus, in a case where the pilot had gone below, leaving the charge of the deck to the second mate, and before he came up again a collision took place, the ship was held Habie, and it was held to be immaterial in this respect whether or no the pilot were to blame for thus temporarily leaving his post (c). If the fault consists in improper steering, then, as this is peculiarly the pilot's province, the only chance of making the ship liable would be, it should seem, to show, either that the look-out was insuffixjient, or that the crew did not obey the pilot's orders (d). Steering orders, given by the pilot, and repeated by the master to the helmsman, are the pilot's acts (e). It is not enough, however, to prove that the pilot was in charge, and then ask the court to presume that any order as to the helm AndtUs must have been given by him : it must be distinctly ^gfedf proved that it was the pilot who gave the order Mere presence which led to the collision (/). If the collision not exc^e. has arisen from the want of a sufficient look- (a) Cfirolamo, 3 Hagg. 175. . (6) JDicma, 1 W. Rob. 135. (c) Mobile, Swab. 71. Affirmed in P. C, Swab. 128. (i) Batavier, 2 W. Eob. 409. (e) Ad/miral Boxer, Swab. 196. (/) ScfiMialbe, 1 Lush. 240. In all cases where '■ pilot " is set up as the defence, the burthen of proof that the collision resulted from the faulty conduct of the pilot, and of him alone, rests with the defendant {Atlas, 2 W. Rob. 504). 108 COMPULSOEY PILOT. The pilot responsible for bringing ship to, and getting' her under weigh. But pilot not responsible when fault lay in coming out of dock at all. out, the presence of a pilot will not excuse the ship (a). Everything connected with thebringingof the ship to anchor, and getting her xinder weigh, falls within the duties of the pilot. Thus, in the Agricola's case, it was held that, to determine when and how to drop the anchor, is in the province of the pilot (b) : in another case, that the pUot alone was to decide as to the propriety of bringing a ship to anchor, and, therefore, whether to run into an anchorage ground on a dark night or to remain outside (c) : in another, that the catting of the anchor, so as to have it in readiness for letting go upon occasion, belonged to the pilot's duty {d) : in another, that the mode of getting the ship under weigh was to be determined by the pilot (e). If, however, the collision have arisen because the sailors have been too slow in obeying the pilot's orders to let go the anchor {/), or because the anchor was too light to hold the ship as it ought to have done (g), the ship will be held liable. In one case, where a ship was improperly moved from dock to dock on a dark night, when it was impracticable for the pilot to control the movements (a) Bolides, 3 Hagg. 367 ; Dicma, 1 W. Eob. 135 ; George, 2 W. Eob. 389. (b) 2 W. Bob. 14. (c) George, 2 W. Bob. 388. allowing tune have been given. to the principal, instead of enforc- toapria- ing the demand when due, and if the principal subsequently fail, recourse cannot be had to the sureties. And, in such a case, the question is not whether the surety's position have in fact been damnified by the delay, but whether it might have been (c). A ship's husband has authority to give bail in a collision suit, so as to bind his co-owners {d). When bail has been given to an insufficient amount, the sureties are Hable for no more than the amount of bail, but the owner of the ship in faijlt may be liable up to the real damages, or to the amount to which his liability is limited by law (e). There is a case in which this method of procedure Of security ^ to meet cross-action. (a) Duchesse de Brabant, Swab. 264 ; Richmond, 3 Hagg. 431, (6) Kalamazoo, 15 Jurist, 885. (c) Ha/rriett, 1 W. Eob. 201. (d) Ba/rMr V. Highky, 11 Weekly Keporter, 968, (e) Mellona, 3 W. Bob. 22, ^02 PROCEDURE. by arrest and bail, taken by itself, is inadequate to the rendering of equal justice ; and that is, when, of two colliding ships, concerning which it must before trial be uncertain which is the one in fault, or whether both are, one is within the reach of Admiralty process, and the other is either sunk in the collision or for any other reason cannot be got hold of To remedy this unfairness, the Court of Admiralty is accustomed, when one ship is sunk and the other is proceeded against, to require, before admitting the case for trial, that bail shall first be given by the claimant to meet any cross action (a). And this case is now specially provided for by s. 34 of the Admiralty Court Extension Act, 1861 (6), which enacts that "the High Court of Admiralty may, on the apphcation of the defendant in any cause of damage, and on his instituting a cross cause for the damage sustained by him ia respect of the same collision, direct that the prin- cipal cause and the cross cause be heard at the same time and upon the same evidence; and if in the principal cause the ship of the defendant has been arrested or security given by him to answer judg- ment, and in the cross cause the ship of the plaintiff cannot be arrested, and security has not been given to answer judgment therein, the Court may, if it think fit, suspend the proceedings in the principal cause, untU security has been given to answer judg- ment in a cross cause." (a) Johann Friederich, 1 W. Hob. 39. (*) 24 Vict. c. 10. PBOCEDUEK 203 The Admiralty Court will exercise tte power thus given, even against a British owner residing within the jurisdiction and in solvent circumstances. "At present," said the learned Judge, "the two parties stand in different and very unequal positions ; the one has proved substantial security, the other has only the personal responsibility of his opponent, which may or might prove worthless. The intention of the Act was, to put the two con- tending parties on a fair footing (a)." Security for costs must be given in suits by Security for foreigners (b) ; but must be applied for, if at all, at an early stage of the proceedings (c). In a case where a cross action once commenced had been dropped, and when it was held by the Court that both vessels were in fault, it was decreed that the half-damages of the one ship should not b^ paid over until the owner of that ship had con- sented to make good the half-damages of the other (d). The property and the parties having thus been brought before the Court, the step next in order is, tbe setting forth of the case on either side by pleadings. Under this head it is unnecessary to refer to the ancient methods of pleading in Ad- miralty, further than to mention that there were two ; the more solemn and elaborate method. (a) Cameo, 1 Lush. 408. (6) SopMe, 1 "W. Eob. 326. (c) Volant, 1 W. Eob. 383. (fZ) Seringapatam, 3 W. Eob. 44. acta. 204 procedure; resorted to in cases of importance, being called the way of " plea and proof," and tlie more compendious and less expensive method that of " act on peti- tion." Both these methods are now abolished, and' the course to be taken is defined in the Rules of 1859. Preiiminaiy Before any pleading is given in, each proctor is to file a document, to be called a Preliminary Act, which shall contain a statement of the fol- lowing particulars : — 1st, the names of the vessels which come into colhsion, and the names of their masters ; 2nd, the time of the collision ; 3rd, the place of. the collision ; 4th, the direction of the wind ; 5th, the state of the weather ; 6th, the state and force of the tide ; 7th, the course and speed of the vessel when the other was first seen ; 8th, the hghts, if any, carried by her ; 9th, the distance and bearing of the other vessel when first seen ; 10th, the Hghts, if any, of the other vessel which were first seen ; 11th, whether any lights of the other vessel, other than those first seen", came into view before the collision ; 12th, what measures were taken, and when, to avoid the collision ; l.Sth, the parts of each vessel which first came in contact. The Preliminary Acts are to be delivered into the registry sealed up, and are not to be opened, save by order of the Judge, until the proofs are filed. If both parties shall consent, the Judge may, if he think fit, order the Preliminary Acts to be opened and the evidence to be taken thereon, without its being necessary to file any pleadings. The facts stated in the Prehminary Act are not PEOCEDURE. 205' to be subsequently departed from (a) ; nor can a mistake therein be corrected, unless upon immediate application to the Court, fortified by affidavit (&). There is now only one mode of pleading in the Pleadings. Court. The first pleading is to be called the Petition, the second the Answer, the third the Reply, and the fourth the Rejoinder. Each plead- ing is to be divided into short paragraphs, num- bered consecutively, which are called the Articles of the pleadings, and are to contain brief statements of the facts material to the issue (c). The principle of pleading in the Admiralty Principle, all Court is, that the whole of the facts, intended to must be set be relied upon on either side, should be set forth outset™ * ^ from the outset ; and the reason for this is given by Sir J. Nicholl, in the case of the Gladiator {d)^ " The jurisdiction of the Admiralty Court," said the learned Judge, " is summary and de piano, and proceeds at once to the whole facts of a case. . . . K proceedings be stopped by a preHminary objec- tion and by splitting the defence, the foreign vessel may quit the country, and there may be a loss of witnesses." On this ground, the Court refused to allow a protest tendered against a collision suit, on the ground that it was not alleged in the petition that the collision was owing to other persons on (a) Inflexible, Swab. 33. (h) Vortigern, Swab. 518. (c) Eules, 65—77. {d) 3 Hagg. 343. 206 PROCEDURE, board and not the pilot ; and required that a fiill answer should be put in. What facts All the essential particulars of the defence, the should be set . i i i i forth. Wind, the pace, the tack, the course, the saus set, and the place where struck, should be set forth in the defence (a). So of the attack : the pleadings should embody aU the essential facts (&). A material fact, stated in the petition, and not denied in the answer, is to be taken as proved (c). The defence " pilot on board " should be put in the pleadings ; yet, if not put, may be set up(c?). Irrelevant matter, which might affect the minds of the Trinity Masters, must be struck out from the pleadings, before the papers are printed and placed in the Trinity Masters' hands (e). The petition is invari- ably deHvered to the defendant, so as to give him time to shape his defence (f). The pleadings shoTild be confined to the merits of the collision, and should not set forth special damages, as the payment of salvage, and the like(^). Whenever facts not pleaded have been allowed to be given in proof, it is because they were such of which the party pleading was necessarily ignorant at the time [h). A breach of statute, if relied on, should (a) Virgil, 2 W. Eob. 204. (5) Menem-, 2 W. Eob. 209. (c) SwiMHmd, 2 W. Eob. 484. (d) Canadian, 1 W. Eob. 343. («) Neptunm, Swab. 297. (/) Ebenezer, 2 W. Eob. 210. (g) George Arhle, 1 Lush. 223. (K) Bothma, 1 Lush. 53 ; East Lothian, 1 Lush. 244. PROCEDUEB. 207 be specifically pleaded (a). The plaintiff, in his reply to facts pleaded by the defendant, may in- troduce a new statement of fact, if it be reaUy a matter of reply, and not properly a part of his original case (&). The Court will proceed secundum allegata et Comt "Drocficds probata, even though a failure of substantial semmdum justice in the particular case be the result. Thus, ^oiatl " where it was alleged in the petition that the vessel proceeded against was in fault for starboarding her helm, and it was proved that she was ir^ fault for not keeping a sufficient look-out, but that in fact she did not starboard her helm, the plaintiff was not allowed to recover (c). The principle of this decision was adopted in Privy Council, in the case of the Ann (d). " There is no hardship or in- justice," said Lord Chelmsford, in giving judgment, " in adhering strictly to this rule against the com- plainant, for he knows the nature of the wrong for which he seeks a remedy, and can easily state it with precision and accuracy. But great incon- venience would follow to the opposite party unless this strictness were required, because he might con- stantly be exposed to the disadvantage of having prepared himself to meet one set of facts, and of finding himself suddenly and unexpectedly con- fronted by another totaHy different." (a) Bothmm, 1 Lush. 54. (6) Bothnia, 1 Lush. 53. (c) North American, Swab. 358. (d) 1 Lush. 56. 208 PTROCEDtTRE. This rule This rule, liowevfer, applies only to the plaintiff's' to the side^on case, not to that of the defendants ; for the reason Zieln^^ of the rule applies only to the party on whom lies ■probandi. ^j^g burden of proof. An erroneous allegation of the mode in which the injury occurred, made by way of answer to a libel, does not narrow the issue down to the particular fact alleged, so as to entitle the complaining party to recover, if the proof of it should fail He must rely upon" the establishment of his own case, and not upon the failure of his adversary ; and must succeed upon the truth of his own allegation, or not at all (a). Effect of Admissions in pleadings are conclusive as to admissions m n p ■ -i pleadings. matters of fact, but not as to matters of law, such as legal inferences to be drawn from those facts. This appears conclusively settled by the decisions in the cases of the Peerless (b), and the Killar- ney (c) ; although in the previous case of the' Seine (d), Dr. Lushington complained of the con- duct of a party to a suit in raising a point of law that was not stated in the pleadings, and made the fact of its not having been so stated, one of the' grounds on which he pronounced against the party who had raised it. Consolidation When Several actions have been brought in* respect of the same collision, e.g., one by the owner of the ship sunk in a collision, another by • the (a) East Lothian, 1 Lush. 249, (6) 1 Lush. 113, in P. C. (c) 1 Lush. 431. (<^ Swab. 413. of actions. PROCEDURE. 209 owner of the cargo on board, and another for the loss of the crew's effects, the Court will order them to be consolidated, so as to save expense. This is done as a matter of course, whenever the decision of each action must depend on precisely the same facts. After judgment given, the Court has power to order a disseverance of the actions, so that the proceedings in Registry, with reference to the amount of damages, may be taken separately. It appears, however, that it is not the common prac- tice to dissever actions once consolidated, and it will not be done unless due cause be shown, to the satisfaction of the Court. Apphcation for this pur- pose should be made before a case is carried by appeal to the Judicial Committee ; as it may not be in the power of the Admiralty Court to order a disseverance after a case has been remitted back from that Committee in the ordinary form (a). In collision suits, when both the ships are Cross actions, damaged, the party proceeded against may himself be a claimant in respect of the same collision. In order to save the expense of two distinct actions, the course adopted in the Admiralty Court is the instituting of what is termed a cross-action. Before the evidence is taken, the original action and the cross-action are consolidated. Both causes are tried upon. the same evidence (6). It does not follow, however, that the party defeated in the one action must be victorious in the other ; because questions (a) William, Hutt, 1 Lush. 27. (6) Vortigern, Swab. 519. P 210 PBOCBDTJKE. Proof?. of onus prohandi may complicate the result (a). It is not compulsory on the defendants to institute a cross-action ; when he has not done so, should the judgment in the original action be either wholly or in part in favour of the defendant, he may afterwards bring his action (&), It is practic- able, it appears, by simply entering an appearance and then taking no further steps, for the plaintiff in the cross-action to lie by, till after the original action has been determined, and then to go in separately, bringing additional evidence (c). Next in order to questions concerning pleading come those which relate to the giving of evidence in support of the allegations contained iu the pleadings. Formerly, the course adopted in the Court of Admiralty was, to receive aU the evidence in a written form, by affidavit or deposition. But, by the Act 3 & 4 Vict. c. 65, the practice of this Court was so far assimilated to that of the Common Law courts as to admit, though not to compel, the admission of vivd voce evidence. The reason why this best method of eHciting the truth was not made compulsory is, no doubt, that in Admiralty suits the witnesses are for the most part seamen, who cannot be detained on shore for a length of time except at an expense which would be unrea- The different sonably burthensome on the suitors. The Act kinds of evidence admissible by statute. („) Vortigern, Swab. 519. (6) Oalypso, Swab. 28. (c) North American, 1 Lush. 80. Introduction of vivd voce evidence. PEOCEDURE. 211 accordingly gives power to the Court of Admiralty either (a) to direct a trial by jury of any contested issue on a question of fact, or (6) to summon before it and examine witnesses by word of moutli, or (c) to appoint a commissioner with power thus to exa- mine witnesses, upon oath, in the presence of the parties or their counsel, who shall have the right to examine, cross-examine, and re-examine, after which the commissioner is to transmit the evidence thus obtained to the Court. The same statute (d) gives power to the Judge of the Court to make Rules for the practice and procedure in his Court, subject to the confirmation of Her Majesty in Council. The Eviles now in force, under this- authority, are, as respects the giving in of proofs, as follows : — Causes may be proved by affidavits, by written Rules aa to •^ , , 1 "^ . . p"' . the taking of depositions, or by the oral examination ot witnesses evidence. in open Court, or partly by one mode, partly by another. The proctors in the cause may consent to the mode or modes in which the proofs shall be taken; or either proctor may apply to the Judge to direct which mode is to be adopted. Either proctor may apply to the Judge to fix a time within which all the written proofs shall be filed, after which time nothing can be admitted save by permission of the Judge. Either proctor in the cause may apply to the Judge to order the (a) Section 11. (b) Section 7. (c) Section 8. ((£) Section 18. p2 212 PROCEBUKE. attendance of any witness for examination vivd voce at the hearing, although the witness may have already made an affidavit or been examined before an examiner or commissioner. Affidavits must be sworn before some person other than a party in the cause, and there are some detailed regulations for securing clearness and accuracy. Written deposi- tions may be taken either before an examiner of the Court or before a commissioner appointed by a commission. Provision is made that before a wit-, ness is examined in order to take down his deposi- tion a sufficient notice shall be given to the adverse proctor ; and the witness is liable to cross and re-examination by counsel on either side or by the proctors or their substitutes.' The examination in chief may, on the application of the proctor pro- ducing the witness, be conducted by- the examiner or commissioner himself In any case, the examiner or commissioner may put any questions to the wit- nesses for the purpose of ehciting the truth, as to him shall seem fit. The depositions are to be signed, certified by the examiner or commissioner, and ffied in the registry of the Court (a). If the evidence is to be taken orally, the preK- minary acts must have been exchanged before the evidence can be taken (&). Admissibility The protcst of a master and seaman is not ad- of ft VI n ftn p.ft ' missible as evidence (c) ; nor are proceedings under (a) Eules, 78—95. (6) Bvhy QuMn, 1 Lush. 266. (c) Betsey Ocdnes, 2 Hagg. 28. PEOCEDUEE. 213 a Board of Trade enquiry (a) ; nor, that a Pilot Committee had exonerated the pilot (6), nor, again, such matters of hearsay as, that the pilot told a sailor that the fault was not his but the crew's (c). It has been decided that the captain's confession of being in fault may be pleaded, he being the agent of the owner in the navigation of the vessel {d) ; it has also been decided that admissions to a hke effect, in conversation, made by the crew, are not admissible as evidence (e). The crew, though inte- rested parties, e.g., when sailing on shares, are ad- missible witnesses, as no other evidence is to be had in these cases (/). The Court discourages the attempting to get evidence out of the crew of the hostile ship (g). The Court, it has been said, pro- ceeds levato velo, and therefore is not difficult as to the kind of evidence sent from abroad (Ji). The exclusion of extra-articulate evidence, when such evidence is material to the issue, wUl be dis- couraged by the Court ; the Court will not shut its eyes to the truth ; but, if the opposite party has been surprised, and desires an opportunity of meeting such evidence, the Court wiU give leave to counter- plead and produce evidence on the counterplea(i). (a) Mcmgerson, Swab. 122 ; City of London, Swab. 246. (6) Lord Seaton, 2 W. Rob. 393. (c) S. C. 392. (i) Manchester, 1 W. Rob. 62. (e) Foyle, 1 Lush. 10. (/) Catherine of Dover, 2 Hagg. 145. (^) Commerce, 3 W. Rob. 295. Qi) Peerless, 1 Lush. 41. (t) Schwalbe, Swab. 523. 214 PROCEDURE. Where witnesses are examined vivd voce, this is to be conducted as in Common Law Courts, by exa- mination in cbief and cross-examining (a). Where the crew of one ship are absent, the Court will allow those of the other ship to be examined and cross-examined, if they are going to sea, but will adjourn the case till they can hear both sides (b). Where two collisions have been pleaded, the rule as to allegata et probata is satisfied when the first is proved, and that the other ship was in fault for it, and that the whole damage claimed was done by it ; the plaintiff needs not to go into proof as to the second (c). Onus It may not be out of place here to insert two or pro an . -^Jiree miscellaneous decisions bearing upon the question on which side lies the onus prohandi, to show that the other is in the wrong. Where, by the rules of the sea, it is the duty of one vessel to hold on her course, and of the other to make way, the onus probandi Hes with the latter, to show that she has made way, and in the proper manner. Thus, a vessel with the wind free meeting one closehauled (d), or, of two closehauled vessels, that on the port tack (e), or a steamer meeting a sailing vessel (f), has the burden of such proof (a) Glory, 3 W. Bob. 187. (6) Chmce, Swab. 294. (c) Despatch, 1 Lush. 98. (d) Baron Holberg, 3 Hagg. 215. (e) Mary Stewa/rt, 2 W. B. 245. (/) Emma, 10 Mitch. 399. PEOCEDURE. 215 thrown upon her. And, generally, any vessel which has departed from the niles is so far primarily to blame that it rests with her to make out a justifi- cation, if she can (a). In the absence of proof, or m case of violent and equal conflict of testimony, the presumption is always in favour of a master's having acted rightly (b). If the evidence is so conflicting that the Trinity Masters are unable to say on which side the truth lies, the result might be that neither side would recover ; for, to recover, the right must be made out afiirmatively (c). In the hearing of the case, the Court is assisted. The hearing in case of need, by Trinity Masters, who act as assessors or nautical advisers, to pronounce opinions on questions of fact which involve nautical skill or technical knowledge concerning: matters of naviera- Trinity T . P Masters. tion. Such questions as the propriety of letting go a second anchor under given circumstances, or of anchoring in a particular place, are for the Trinity Masters (c?). The Trinity Masters are paid by fees, and the employment of them is optional ; either party, however, may require the attendance of Trinity Masters, if the case involve technical points. A decree once made may in exceptional cases be varied ; so far as to alter an error arising from defect of knowledge or information upon a parti- (a) Goltimbim, 2 W. Eob. 30. (b) Ma/ry Stewart, 2 W. Eob. 246. (c) Speed, 2 W. Eob. 228. {0) Volcano, 2 W. Eob. 344. 216 PBOCEDTJRB. cnlar point ; provided such error be instantly noticed and brought to the attention of the Court with the utmost possible diligence (a). Eeference to After decree made, if no appeal be entered, the mSch^ts!^ case is ordinarily remitted to the Registrar and merchants to determine the amount of damage. The Registrar is assisted by one or two merchants, official persons who are supposed to possess the technical knowledge requisite for investigating mat- ters of account, affecting the values of different kinds of property, the cost of repairing a ship, and the Hke. The Registrar and merchants constitute a species of Court, and are to proceed, not meri arbitrii, but upon evidence ; and their mode of dealing with such evidence wiU be criticised, and if necessary overruled by the Court of Admiralty (&). In investigating accounts for repairs, they are not to confine themselves to the captain's protest and the surveys ; but are at liberty, and indeed are bound, to obtain the best evidence that the case admits of (c). In case of need, they should, and habitually do, call in the assistance of shipwrights or persons accustomed to shipbuilding {d). One important rule has been laid down by the Court for their guidance ; namely, that whenever the owner of a ship, while repairing collision damages, takes the, opportunity of making additional repairs (a) Monarch, 1 W. Rob. 27. (&)_ Alfred, 3 W. Eob. 235. (c) Ibid. 236, 237. (d) S. C. 236. PBOCBDtJEE. 217 for his own benefit, the deduction from the claim which is to be made on that account is not to exceed the increase in the total cost of repairing, over and above what the cost would have been had the repair been confined to the coUision damage. It frequently happens, for example, that the collision damage can only be repaired in a graving dock, and that the alterations or owner's repairs can only be done in a graving dock ; but that both can be done without any greater delay in the graving dock than the collision damage singly would have neces- sitated. In such a case the entire cost of the graving dock is to be treated as part of the col- lision damage, and the owner thus gains an inci- dental benefit free of charge. This springs out of the principle of restitutio in integrum (a). Claims for demurrage, made in the Registry, must be sustained by proof of actual loss (6). The judgment of the Registrar and merchants takes the form of a Report to the Admiralty Court, and it is open to either side, if dissatisfied, to raise objections to that Report. The Court will not reverse the Registrar's decision in a case of doubt (c) ; but, if satisfied, will not refuse to re- verse it even on matters of mere detail, as, by allowing a larger portion of a blacksmith's biU (d). (a) S. C. 238, 239. (i) Gla/rence, 3 W. Kob. 285. (c) Clyde, Swab. 25. (i) Alfred, 3 W. Eob. 242. 218 PROCEDTJEE. In appeals from the Registry, fresli evidence is admissible (a). We may now pass on to the subject of Appeals from the Admiralty Court. Appeals. An appeal lies from the High Court of Admiralty to the Judicial Committee of Privy Council. The time for appealing is by practice limited to fifteen days after the making of the decree ; but the Court may grant an extension. It has been decided that neither the statutes of Hen. VIII. (6), which regu- late appeals in matters ecclesiastical, nor the rule of the civil law, which limits the time of appeal- ing to ten days, are applicable to appeals of this kind (c). An appeal may be instituted after an offer has been made by the appellant to pay a lump sum as damages, which offer has not been accepted (d). Before reversing a decree, the Judicial Committee hold it necessary, not merely to entertain doubts, but to be satisfied that the judgment was wrong (e). In giving judgment, wherever matters requiring nautical sldll are involved, the Judicial Committee is assisted by Nautical Assessors, who perform the functions which in the Admiralty Cotirt are exer- cised by the Trinity Masters. On questions purely nautical, the Judicial Committee, though reluctant, (a) Iron Master, Swab. 442. (6) 24th, c. 12, and 25th, c. 19. (c) Mceander, 1 Lush. 530. (d) Ulster, 1 Lush. 426. (e) JuUa, 1 Lush. 235. PROCEDTJEE. 219 will not refuse to reverse tlie decisions of the Trinity- Masters on the judgment of their own Nautical Assessors (a). Appeals are determined upon the oriffinal evi- Appeals dence, the written proofs filed in the registry being upon the transmitted to the registry of the Court of Appeal, S^iTce. together with the shorthand writer's certified report of the evidence taken orally. After appeal, the practice is for the Judicial Committee to remit the case back to the Admiralty Court, to determine the amount of damages (6). The costs, in collision causes, usually follow the Costs. event. When both ships are pronounced in fault, - the rule is that each party pays his own costs (c). It is to observed, however, that the Admiralty Court exercises an enlarged equity in the matter of costs ; and, in all cases involving questions primcB impressionis, or such questions as from their doubtful character are fair subjects for Htigation, its disposition has been to let each party bear their own. Where there are difficulties in the case, which might mislead, costs will not be given (d). In one case, costs, were refused on the ground that the captain had not stopped, when he might have done so, to save a drowning man (e). In case of inevitable accident, costs are never given on either (a) Namigator, 8 Mitch. 1039. (J) Vaux V. Sehaffer, 8 E. F. Moo. 75. (c) Mona/rch, 1 W. Eob. 26 ; Eclipse, 1 Lush. 423. (d) Ebenezer, 2 W. Eob. 213. (e) St. Lawrence, 14 Jurist, 534. 220 PROCEDUEE, side (a). When the party actually in fault escapes liabihty on the ground that the fault was that of a compulsory pilot, costs will not ordinarily be given to him (6). The Court wUl discourage, by not giving costs, any unnecessarily expensive mode of proceeding, e.g., the not bringing a cross-action (c). "When a judgment of the Court of Admiralty is reversed by the Judicial Committee, costs will sometimes be given both as regards the proceed- ings in the Court below and in the Court of Appeal (d). With regard to the costs of procedure in the Registry, it is the rule that, when more than one- third of the amount claimed has been struck off on account of overcharge or as not allowable, the costs are charged to the plaintiff ; when less than a third and more than a fourth has . been struck off, each party pays his own costs ; and when the defendants have made an insufficient tender, they must pay the costs occasioned thereby (e). The rule, when one-third has been struck off, is applicable, though the deduction result simply from the decision of a purely legal question (/). . These rules, however, do not apply to the costs of appeals from the Registry (a) Itinerant, 2 W. Eob. 244. (6) Montreal, 17 Jurist, 538 ; Femora, 1 Lush. 23 ; Johanna Stall, 1 Lush. 313. But see, contra, the Castor, 6 L T. N. S. 106. (c) Calypso, Swab. 30. {d) East Lothian, 1 Lush. 251. (e) Seine, Swab. 513 ; Nimrod, 17 Jurist, 767 ; Black Prince, 1 Lush. 577. {/) Empress Euginie, 1 Lush. 141. PROCBDUBE. 221 to the Court ; these usually follow the event (a). In one case, however, though the Registrar's report was confirmed, yet the costs of appeal were allowed to the appellant, because the Court had doubts (6). The Urown, it appears, neither gives nor takes costs (c). In one case, an opposite rule was fol- lowed (d), but this has been overruled by the subse- quent decision in the Leda's case (e), in which the subject was fuUy gone into. The ground of this exemption is set forth at large in that judgment. At common law, it appears, no costs were recover- able from any party except in virtue of special statutes ; and in the statute of Gloucester, by which costs were made recoverable, the Crown was not mentioned, and therefore it did not bind the Crown.. The Court, thus having no power to enforce a decree condemning the Crown in coats, naturally declined to make such a decree, and therefore, from equitable considerations, rarely or never gave costs to the Crown. But when there are co-plaintiffs with the Crown, — e. g., when a suit for collision damages has been instituted by the Crown jointly with the commander and oflGlcers of a Queen's ship, the Court will give costs against the latter (f). (a) Blaoh Prince, 1 Lush. 577. (6) Circle, Swab. 27. (c) Duke of Sussex, 1 W. Eob. 274. (i) Swallow, Swab. 32.S (e) Leda, 8 Mitch. 115. (/) Leda, uh. sup. 222 PROCEDURE. Since either party to a collision suit has the right to have his witnesses examined orally, the expense of detaining foreign seamen or other foreigners in this country for that purpose are to be allowed as costs in the suit (a). Efifectof Before leaving this branch of the subject, it only bringing suit, remains to be added, that collision suits should be brought into Court within a reasonable time, while the evidence is still fresh and accessible. In a case where there was an interval of fully two years between the collision and the judgment, resulting from dilatoriness in commencing proceedings, Dr. Lushington said he had no authority to refuse to entertain any suit commenced within the period of time limited by law ; but that, if he saw any un- reasonable or improper delay, he would, in all cases, when the proof was not sufficiently clear to enable him to arrive at a satisfactory conclusion, consider that such delay in the proceedings raised a pre- sumption against the party guilty of the laches, inasmuch as valuable and important evidence might have been lost in consequence thereof (6). (a) Ka/rla, 13 Weekly Reporter, 295. (6) Mellom, 3 W. Eob. 10. INDEX. ACCIDEISTT, inevitable, definition of, 98. examples of, 99, 101. ADMIRALTY COUET, extent of jurisdiction of, 188. principles it acts upon, 2. AN'CHOE, ship run into when at, 57. the ship wliich runs into her is primd fade in fault, 58. even when ship anchored ia an improper place, ib. AEQWJRTEQ IMPEOPEELY, efiect of, 76. APPEALS, court of, in Admiralty suits, 2. rules with regard to, 218. determined on the original evidence, 219. APPEAEAISrCE, entering of, 198. APPOETIONMEKT, rule of, when several claimants, 176. AEEEST, regulations conceming, 196. no damages for improper, 8. property liable to, 167. 224 INDEX, • BAIL, regulations as to giving of, 200. extent of liondnien's liability, ib. BAR, when judgments bar an Admiralty suit, 199. BARGE, is a " sbip " within the act, 190. BOARD OF TRADE, jurisdiction of, 195. BOTH SHIPS IN FAULT, rule as to damages, 3. CARGO, damage to, by collision, 5. not liable for collision damage, 5. though belonging to owner of ship in fault, 8. CHANNEL (see Naeeow Channel). CHARTER, loss of, recoverable as damages, 159. compulsion by reason of, no excuse, 6, 138. CLOSEHAFLED SHIP, one going free must make way for, 14. on starboard tack must generally keep her course, 17. COMMON LAW COURTS, jurisdiction of, 191. decisions of, how far followed by Court of Admiralty, 2. CONSOLIDATION OF SUITS, rules as to, 208. CONSTANTINOPLE, jurisdiction of Consular Court of, 195. COSTS, security to be given for, 203. rules as to, 219. not given to or against the crown, 221. INDEX. 225 COTJET OP SESSION, jurisdiction of, 194. CEEW, effects of, lost by collision, 158. loss of life of, or personal injury to, 159. CEOSS-ACTIOISr, security to be given to meet, 201. rules as to, 209. CEOSSING AT AN ANGLE, rules as to, 15, 19. CUEEENTS, rules for steering in rirers witli strong, 56. CUSTOMAEY LAW, what, 1, 12. CUSTOM-HOUSE EEGULATIONS, do not justify breacb of statutory rules, 55. DAMAGES, rules as to, when both ships in fault, 3. computation of, 140, 164. general principles as to, 141. when ship is totally lost, 141. sunk and raised again, 146. so badly damaged as not to be worth repairiag, 149. damaged, but repairable, 149. no deduction made for improvement of ship by being repaired, 150. allowance for interest on outlay, 153. deduction made for exorbitant charges, 153. allowance for demurrage or loss of time, 154. allowance for cost of maintaining passengers, 155. loss of cargo, 157. effects of crew or passengers, 158. loss of life or personal injury, 158. Q 226 INDEX. DAMAGES— {continued). expected salvage, 159, charter, 159. costs of resisting exorMtant salvage claim, 159. resulting from improper conduct, after a collision, on tlie part of the injured vessel, not recoverahle, 160. incidental, though remotely, to the collision, recoverahle, 162. wrongdoer answerable for impossibility of exactly com- puting damage, 164. DECEEE, in what cases varied, 215. DEFAULT, effect of letting cause go by, 198. DELAY m BEINGING SUIT, effect of, 222. DEMUEEAGE, allowance of, 154. priaciple of estimating, 155. case of packet missing her turn, 156. never given when ship totally lost, 156. DEEDGnTG, ship dredging down a river does so at her own risk, 77. EVEDENCE, different kinds of, 210. rules as to taking of, 211. admissibility of, 212. FAULT, in meaning of, 4. result of neglecting to save life, 4. EEEEY-BOAT, is not " a seagoing ship," 86. duty of, during fog, 75. INDEX. 227 FISHING VESSELS, rules as to lights for, 85. are not "seagoing sMps," 86. FOG, effect of going too fast in, 69. duty of steamers in, in frequented channels, 70, 75. on the high seas, 72. speed of sailing vessels in, 73. moving at all in, may he a fault, 74. what is, 96. sudden, may be inevitable accident, 100. FOG-SIGNALS, regulations concerning, 96. FOEEIGN SHIP, whether hound by custom of English river, 54. to what extent bound by English statutes, 178. municipal regulations disregarded in Admiralty Court, 187. FEEIGHT, how far liable to Admiralty arrest, 8, 168. lost by collision recoverable as damages, 155. what deductions to be made from, 155. GIVING WAY, definition of, 33. HALF DAMAGES, Admiralty rule as to, 3. HAEBOUE-MASTEE, compulsory, operates like pilot, 137. HOVE-TO, whether vessel hove-to is treated as if at anchor, 59. duty of vessel in that position, 60. HULL, rales as to compulsory pUot for, 131. 228 INDEX. INEVITABLE ACCIDENT, definition of, 98. examples of, 99. INEEEIOE COUETS, jurisdiction of, 194. INTEEEST OI*r OUTLAY, aUowaUe as damages, 153. JAMMIN-G OF CABLE, treated as inevitable accident, 100. JUEISDICTION, of Admiralty Conrt, extent of, 188. common law courts, 191. Court of Chancery, 192. Court of Session, 194. inferior courts, 194. Board of Trade, 195. LACHES, effect of, 222. LAITNCH, notice of, must be given, 62. during, other vessels must keep clear, 62. what is adequate notice of, 65. LIABILITY OF SHIPOWNEE, principles regarding, 7. does not extend to wilful collisions, 7, LICENSE OF PILOT, regulations as to, 136. LIGHTS, customary sea-law as to, 78 — 80. with reference to, vessel hove-to is treated as vessel under way, 7.9. statutory regulations, 80 — 85. INDEX. 229 L1GB.TS— (continued). proper position of, 86. onus prohcmdi as to carrying of, 87. excuses for not carrying, 89—90. if carried away, must at once be replaced, 91. steeriag, how affected by position of lights seen, 92. effect of mistake from accidental extinction of, 94. LIMITATIOIsr OF LIABILITY, by Act of ParKament, 171. _ does, not apply to costs or interest, 174. each collision to be taken separately, 176. LIYEEPOOL, rules as to compulsory pilotage for, 126. LOCAL CUSTOMS, do not justify departure from sea-rules, 47. exceptions to this rule, 49 — 51. LONDOlSr, rules as to compulsory pilotage for, 120. LOOK-OITT, want of proper, effect of, 67. what is proper look-out, 68. lese essential for ship closehauled on the starboard tack, 68. LOEDS, HOUSE OF, decisions of, binding on Admiralty Court, 2. MAIL COI^TEACT, no excuse for excessive speed, 71. MEASUEE OF DAMAGES (see Damages). MISSmG STAYS, in what cases an excuse for collision, 100. ISTAEEOW CHANNEL, what is, 51. steering rules for, 46 — 66. 230 INDEX. KAEEOW CB.ANKEL— (continued). . extinct statutory rule for, 46. duty of tug in, 52. rule in rivers having strong currents, 56. NEWCASTLE-UPON-TYNE, rules as to compulsory pUot for, 135. ONUS PEOBANDI, principles with regard to, 214. rests with ship which runs iato one at anchor, 58. as to proper notice of launch, 65. carrying of lights, 87. immateriality of absence of light, 88. compulsory pilot, 107, 125. OVEETAKING A SHIP, rules for steering, 24. PASSENGEES, claim for effects of, lost by collision, 158. loss of life or personal injury, 158. costs of maintenance, 155. PASSENGEE STEAMEES, exemptions for compulsory pilotage, 124. PILOT, compulsory, ship not liable for fault of, 103. but must be fault of pilot alone, 106. responsible for bringing to, and getting under weigh, 108. not responsible for coming out of dock, 108. nor for proper trim of ship, 109. taking steam, 109. sending down yards, 109. giving orders from on board tug, effect of, 110. in what cases master should supersede pilot. 111 — 113. may be compulsory, though selected from several, 137. what is the test of compulsoriness, 114. general legislation as to, 115. INDEX. 231 VILOT.— (continued). exemptions from compulsion to take pUot, 118. pilotage certificates for master or mate, 121. local legislation as to London, 122. Liverpool, 126. HuU, 131. Newcastle-upon-Tyne, 135. license of, regulations as to, 136. compulsory harbour-master operates as, 137. personal liability of, 138. PLEADLN"GS, present rules as to, 203. priuciple of, all facts relied on are to be set out from the outset, 205. what facts are to be thus set out, 206. court proceeds secundum allegata et probata, 207. effect of admissions in, 208. POETESTG HELM, time when it should be done, 27. PEELIMINAET ACTS, regulations as to, 204. PEOCEDUEE, m personam,, 190. PEOOF, general modes of, in Admiralty, 210. PEOPEETY, liable to arrest, 167. EEGISTEAE AND MEEGHANTS, reference to, 216. rules for their procedure, 216. of objections to their report, 217. EELEASE OF SHIP, regulations with regard to, 200. 232 INDEX. EEPAIES, cost of (see Damages). EES, lialDility of, 6. EIVEE (see ISTaekow Channel), local customs in, effect of, 47. foreign sHp, how far hound by custom of, 54. having strong current, steering rule for, 56. EIVEE STEAMEE, is not " sea-goiag ship," 86. SAILING VESSEL, speed of, during fog, 73. rules as to lights for, 83. SAILS, must iu some cases he used to assist the action of the hebn, 27. SALVAGE, loss of expected, reooverahle as damages, 159. costs of resisting exorbitant claim for, 159. SEA-GOING SHIPS, what are, 80, 86. SHIP, rule for determining value of, 142. sunk and raised again, measure of damages, 146. in fault, Hable to arrest, 6. must be bailed or will be sold, 6. liability to arrest contiuues even after sale with- out notice, 6. not liable for criminal or wilful misconduct of the mas- ter, 7. SHIP-LAUNCH (see Launch). SPEED, excessive, effect of, 69. INDEX. 233 STAEBOAED-TACK, ship closehauled on, must generally keep her course, 17. exceptions, 18. STATUTES, interpretation of, 2. STATUTORY REGULATIONS (see Lights, Steering, &c.). STAYS, vessel in, like one at anchor, 61. precautions to be taken before throwing ship into, 61. STEAMER, going alone, treated as ship going free, 28. to give way to sailing vessel, 29. by going astern, 31. in case of doubt, engines to be slackened, 32 — 44. excessive speed of, 71, 72. when towing, how far different from when alone, 37. rules as to lights for, 82. STEERING, how affected by position of lights seen, 92. -STEERING RULES, for sailing vessels at sea, 7 — 27. common sea law, 11. summary of rules, 16. statutory regulations, 20 — 24. differences between the two, 24. exceptional circumstances, what, 26. for steamers and ships in tow at sea, 28 — 45. for narrow channels, 46 — 66. THIRDS (see Damages). TO]SrNAGE, rules for determining, 176. TOWIKG STEAMER (see Tug). E 2,S4 INDEX. TEAFSFEE, of ship does not do away with liability for collision damage, 6. of suits, in what cases admissible, 193. TEESriTY MASTEES, rules as to employment of, 215. TEINITY EULES, for steamers, 29. simply declaratory of existing nautical customs, 34. extinct rule for narrow channels, 46. 'TUG, while towing, not always treated as steamer going alone, 37. ship towed and tug treated as one vessel, 38. when ship in tow meets vessel closehauled on port-tack, both should give way, 39 — 43. duty of, when in narrow channel, 52. is servant of ship towed, 43. ship-owner may recover over against, 44. VALUE OF SHIP, ordinarily, is her market price, 142. exceptional cases, 143. VIVA VOCE EVIDENCE, to what extent admissible, 210. WATEEMAN, recommended by compulsory pilot, is owner's servant, 138. WILFUL COLLISIONS, ship not liable for, 7. THE END. FEINTED Br C, W. 5-££VEIIS, 5, QREAT QUEEN ST , LINCOLN'S INN FIELDS.