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A wrong step taken in the

If a vessel by her own fault makes a collision so immiagony of the nent that it cannot be avoided except by the exercise of collision is not extraordinary skill or exertion on the part of the other negligence. ship, and a collision occurs, it will be held to have been occasioned by the former, and she will be liable for the entire loss. In such a case, and in every case where a ship by her own negligence places another in sudden peril, the latter will not be held in fault for omitting at the last moment to do something that would have averted the collision (2). And the rule is the same whether the emergency and sudden peril is caused by the fault of the other vessel or not. A vessel is not required to foresee and provide for every accident. The mere omission to do something that would have prevented the collision, or the doing something without which the collision would not have occurred, is not in every case negligence. The plaintiff can recover, although by taking steps other than those he did take he might have prevented the collision, provided he was not in fault for not taking such steps (a).

Where a steam-ship coming up the Thames at night passed a schooner, and when about 300 yards a-head of her took the ground and stopped, the schooner was held not in fault for a collision which followed, although, possibly, if she had at once let go her anchor she might have prevented the collision (b).

A steam-ship bound down the river Thames on a very

(z) The Nor, 2 Asp. Mar. Law Cas. 264; The C. M. Palmer and The Larnax, infra; The Pyrus and The Smales, Holt 40; The Elizabeth and The Lotus, 2 Mar. Law Cas. O. S. 238; The Sisters, 1 P. D. 117; The Bywell Castle, 4 P. D. 219. The same rule prevails in the American courts, The Benefactor, 14 Blatchf. 254; The Byfoged Christiansen, 4 App. Cas. 669.

(a) The Jesmond and The Earl of Elgin, L. R. 4 P. C. 1, 7; The

Sisters, 1 P. D. 117; The Marpesia, L. R. 4 P. C. 212; Vennall v. Garner, 1 Cr. & M. 21; The City of Antwerp and The Friedrich, Inman v. Beck, L. R. 2 P. C. 25. Cf. per Ellenborough, C.J., in Jones v. Boyce, 1 Stark. 493, 495: "If I place a man in such a situation that he must adopt a perilous alternative (as jumping off a coach), I am responsible for the consequences."

(b) The Elizabeth and The Adalia, 3 Mar. Law Cas. O. S. 345.

dark night was rounding-to in Gravesend reach before coming to an anchor. While rounding-to she ran into and sank a vessel at anchor without a riding light up. The instant the latter vessel was seen the engines of the steamship were stopped and reversed, but her anchor was not let go. It was held that, even if the collision could have been averted by letting go the anchor, the master of the steam-ship was not guilty of negligence because, at the moment, it did not occur to him to let go his anchor (c). But if a ship seeks to excuse herself for taking a wrong step which, in fact, caused or contributed to the collision, upon the ground of sudden peril, she must show clearly that she was in no way responsible for the sudden peril (d).

or other embar

Upon the same principle, if a ship, by carrying wrong Misleading lights, or by navigating in an improper or unusual manner, lights, hailing, misleads or embarrasses another, she cannot attribute as a rassing acts. fault to the latter any act which was the probable result of her own negligence (e). So where a ship is hailed from another to take a particular course, and she obeys the hail, the other ship cannot be heard to say that the course was wrong, although, in fact, it caused the collision and was in violation of the Regulations (ƒ).

(c) The C. M. Palmer and The Larnax, 2 Asp. Mar. Law Cas. 94.

(d) See The Bywell Castle, 4 P. D. 219, and the cases cited above. It has been repeatedly held by the Supreme Court of the United States that a vessel which by her own fault causes sudden peril to another cannot impute to the other as a fault a measure taken in extremis, although it was a wrong step, and but for it the collision would not have occurred. A mistake made in the agony of the collision is regarded as an error for which the vessel causing the peril is altogether responsible: The Nichols, 7 Wall. 656; The Carroll, 8 Wall. 302; The City of Paris, 9 Wall. 634; The Lucile, 15 Wall. 676; The

Favorita, 18 Wall. 598; The Falcon,
19 Wall. 75; The Sea Gull, 23 Wall.
165. There are decisions of the
French courts to the same effect:
Abordage Nautique (Caumont), §
134.

(e) The Rob Roy, 3 W. Rob. 190;
The Scotia, 14 Wall. 170; The Mary
Hounsell, 40 L. T. N. S. 368.

(f) See The Carolus Rotchers, 3 Hag. Ad. 343, note. In this case a ship close-hauled on the starboard tack hailed another close-hauled on the port tack to keep her luff. The latter did so, and a collision occurred. The first ship was held in fault. Notwithstanding 36 & 37 Vict. c. 85, s. 17, the rule would probably be the same at the present day. It would probably be held that, after

Ship unmanageable or disabled.

If a ship is in an unmanageable state, and whilst in that condition injures another, she will be held to be in fault for the collision if her unmanageable condition was the result of her own negligence, or of a previous collision for which she was in fault (g). So if she has lost her lights by her own fault, or in a collision for which she was in fault, she would probably be held in fault for a second collision caused, or which might have been caused, by the absence of lights (h). If she gets ashore by her own negligence, and in coming off unavoidably does damage, such damage is held to be caused by her own negligence (i).

Both ships Where there is risk of collision, and the Rule of the Road must take precautions, requires both the ships to alter their courses, or to take definite measures to avoid collision, it is negligence in either ship not to take the prescribed step. She cannot excuse herself for disobeying the law upon the ground that there would have been no collision if the other had obeyed the law. In such a case she would be prevented from recovering more than half her loss by 36 & 37 Vict. c. 85, s. 17 (k); and independently of the statute a vessel which, by infringing the Regulations, or by negligence in any other respect, contributes to a collision, is clearly in fault (7). Failure to comply with the Statutory Regulations for preventing collisions is always negligence, and, as will be seen below, it will in almost every case be held to be negligence contributing to the collision.

Negligence of tug or salvor.

If a vessel which is engaged in rendering salvage service

such an intimation from the other
ship of her intended course, a depar-
ture from the Regulations was ne-
cessary to avoid immediate danger
(Art. 23). See also The James Watt,
2 W. Rob. 270; The Independence,
14 Moo. P. C. C. 103, 109; The
Huntress, 2 Sprague, 61.

(g) Seccombe v. Wood, 2 Moo. &
Rob. 290. See also Brown v. Mallet,
5 C. B. 599; White v. Crisp, 10 Ex.
312; Lords, Bailiffs, &c., of Romney

Marsh v. Corporation of Trinity
House, L. R. 5 Ex. 204; ibid. 7 Ex.
247; Kidson v. McArthur, 5 Sess.
Cas., 4th series, 936.

(h) See The Kjobenhavn, 2 Asp. Mar. Law Cas. 213; 36 & 37 Vict. c. 85, s. 17.

(i) Lords, Bailiffs, &c., of Romney Marsh v. Corporation of the Trinity House, ubi supra.

(k) See below, p. 14.

(1) See The America, 2 Otto. 432.

to another negligently runs into her, she is liable for the damage; but she does not thereby forfeit her right to a sum which has been previously agreed upon as remuneration for the salvage service, unless the negligence is very gross. In such cases the Court regards error or negligence in the salvor less severely than in ordinary cases of collision (m). If the salvor, without negligence on her own part, is injured by collision with the ship she is assisting, she can recover for her loss (n). The relative duties of a tug and her tow are considered in a subsequent chapter.

must be

proved.

To recover damages for a collision, negligence must, Negligence except in the cases mentioned below, in all cases be proved (o) against the other ship. The plaintiff must at least make a prima facie case. The burden of proof lies on him so far (p). But it does not at all follow that it lies

(m) The C. S. Butler and The Baltic, L. R. 4 A. & E. 178. See also The Thetis, 3 Mar. Law Cas. O. S. 357; Stevens v. The S. W. Downs and The Storm, Newb. Ad. 458.

(n) The Mud Hopper, 40L. T.N.S. 462.

(0) 17 & 18 Vict. c. 104, ss. 282, 285, does not, it seems, make the official log evidence in collision actions where it is not admissible apart from the statute. As to the ship's log not being evidence, see The Henry Coxon, 3 P. D. 156. A verdict and judgment in a common law action cannot be pleaded or given in evidence in Admiralty proceedings. And the result of proceedings at a Board of Trade enquiry, or coroner's inquest, is not material: The Mangerton, Swab. Ad. 120; The City of London, ibid. 245. A protest may be used to contradict the master, but not as evidence for the ship: Christian v. Coombe, 2 Esp. 489; Abbot Ship., 11th ed., 336; The Ljudica, 23 L. T. N. S. 474; The Emma, 2 W. Rob. 315. The same rule applies to depositions before receivers of

on

wreck The Little Lizzie, L. R. 3
A. & E. 56; Nothard v. Pepper, 17
C. B. N. S. 39. The statements of
seamen cannot be used as admissions
against the owners: The Lord Sea-
ton, 3 W. Rob. 391, 403; Not. of
Cas. 164; The Foyle, Lush. 10;
and see The Great Eastern, Holt
169. In America statements by the
master have been used as admissions
against the owner: The Potomac, 8
Wall. 590; and under the old pro-
cedure were so received in the Eng-
lish Admiralty Court: The Midlo-
thian, 15 Jur. 806; The Manchester,
1 W. Rob. 63; The Europa, 13 Jur.
856; The Acteon, 1 Sp. E. & A. 176.
Evidence in a common law action
for the same collision cannot, except
by consent, be used in a subsequent
action in Admiralty: The Demetrius,
41 L. J. Ad. 69; The William Hutt,
Lush. 25. Statements by the pilot
of the defendant ship at the time of
the collision have been admitted in
evidence as part of the res gestæ:
The Schwalbe, Swab. Ad. 521.

(p) The Bolina, 3 Not. of Cas.
208, 210; The Carron, 1 Sp. E. & A.
91;
The London, 11 Moo. P. C. C.

upon him throughout the whole case. Frequently, by proving certain circumstances, the burden of proof is thrown back on the defendant, and he is bound to make out his case (q). Thus, where the ship is at anchor in a proper berth, or in stays, or otherwise not under command without negligence on her own part, the presumption is that the other vessel is in fault (r).

A vessel under way is bound to keep clear of another at anchor; and in case of collision with a ship at anchor, the vessel under way is prima facie in fault. If the ship at anchor shows that she was brought up in a proper place, and that she was not guilty of negligence in respect of her lights and other proper precautions, the burden of proof lies on the ship under way to show that she was not in fault (s). And the rule seems to be the same in the case of collision with a fishing-boat fast to her nets (t), or with a ship hove-to and unable to keep out of the way (u).

And although a ship is brought up in an improper place, another running into her may be held in fault. "It is the bounden duty of a vessel under way, whether the vessel at anchor be properly or improperly anchored, to avoid, if

307; The Marpesia, L. R. 4 P. C. 212; The Benmore, L. R. 4 A. & E. 132; The Abraham, 28 L. T. N. S. 775; The Albert Edward, 44 L. J. Ad. 49.

(q) The Ligo, 2 Hag. Ad. 356, 360; The Sisters, 1 P. D. 117; The City of Anwerp and The Friedrich, L. R. 2 P. C. 25. See Daniel v. Metropolitan Railway, L. R. 3 C. P. 216; ibid. 591, as to what is sufficient evidence of negligence.

(r) In some American cases it has been said that where one ship is required by the Regulations to keep out of the way of the other, as in the case of a steam-ship and a sailing-ship, upon proof that the latter is not in fault, unless the former proves that the collision was an in

evitable accident, she will be held to have been in fault: The Carroll, 8 Wall. 302, 304; The Scotia, 14 Wall. 170, 181; New York, &c., Mail Co. v. Rumball, 21 How. 372, 385.

(s) The Bothnia, Lush. 52; The Telegraph, Valentine v. Clough, 1 Sp. E. & A. 427; The Beaver, 2 Bened. 118, and The Baltic, ibid. 452, are American cases to the same effect.

(t) The Columbus, 1 Pritch. Ad. Dig. 199; The Two Sisters, ibid.; The Bottle Imp, 28 L. T. N. S. 286.

(u) The Eleanor and The Älma, 2 Mar. Law Cas. O. S. 240; but see The London, 6 Not. of Cas. 29, where a vessel hove-to was held in fault.

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