which the steamer did carry were insufficient, improper, and cal- Article 3. culated to mislead, and did mislead those on board the steamer.' Now, to weigh the amount of this allegation, it is necessary to keep in mind the 3rd Article of the regulations referred to, which obliges sea-going steamers, when under way, to carry at the foremast-head a bright white light, on the starboard side a green light, and on the port side a red light, the green and white lights being fitted with inboard screens. Now, admittedly, the steam tug, although carrying these three lights, had not them placed in conformity with this article, nor were they fitted with the prescribed screens, and their position, lashed in a line to a rail on the top of the cook-house, is sought to be explained by the circumstance of the tug having neither masts nor rigging; but the question for the Court is, whether these were circumstances which made a departure from the rule necessary in order to avoid immediate danger, for such are the qualifying words of Article 19, to excuse obedience to it. You, gentlemen, will assist me in coming to a proper conclusion upon that, and also, whether, placed as they were, the lights of the tug were improper, insufficient, and calculated to mislead the steamer, her case and the evidence in support of it being that they did mislead her into the belief that she was a vessel at anchor. It has been contended, however, on the part of the tug, that being employed solely in river navigation, she cannot be styled a sea-going steamer, and so is not under the obligations referred to. To that, however, two very sufficient answers have been given-the one, that in her own petition she has averred that the collision occurred on the high seas, and she cannot now be admitted to contravene that admission; the other is, that, ex vi termini, the word 'sea' merely means 'water,' as contradistinguished from land; and this is further illustrated by that solemn baptismal declaration in the Book of Genesis'And the gathering together of the waters called He sea.' And now with regard to the objections of the petitioners, that the City of Paris is to blame for the collision for not having ported, and for not having reversed. As to the latter there is no evidence that any order to reverse her was given; and there is that, had it been given when the order to ease was given, it would have had no effect. And as to the former, I will present to you the following matter for your consideration of it. It was insisted, that when the steamer first became aware of the tug moving towards her on her starboard side, the circumstance was to be regulated

Article 3. by the 14th Article, which says-When two ships under steam are crossing so as to involve risk of collision, that which has the other on her own starboard side shall keep out of the way of the other;' and this is followed up by the 18th Article that the other shall keep her course.' The articles thus relied upon, however, were violated by the steamer's own manœuvre of starboarding her helm, whereby she did not keep out of the way, but ran in the way of the other, who was keeping her course, as she was entitled to do. But when it is recollected that the order to hard a-starboard was given by the steamer when the tug was but two points on her starboard bow, it seems clear that the proper article to apply to the position is the 13th, which says 'When two ships under steam 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.' In the case of the Mangerton (Swab. 128), where such a matter had been under discussion, the very learned Judge of the High Court of Admiralty in England says, in addressing the assessors:- -'I would suggest to you, gentlemen, that we are not to stand too nicely upon how two ships bore upon each other: but if you think that any risk appeared, it is then our duty to apply the rules of the statute.' And, again, in the Cleopatra, in the same volume, he says:-'Whenever two vessels are seen from each other, even in parallel courses, provided they are close to each other, or in any course, so that there is reasonable probability of collision, it is their duty, unless there be some impediment, to obey the statute.' With such readings, and with a rule in which for the first time the words 'nearly end on' are introduced, there seems no difficulty in selecting it as the governing test in the present case. In consideration, then, of its application to the circumstances, it is to be remembered that the steamer had been going her full speed of seven miles up to the moment of collision, and that between the order of hard a-starboard and the act of collision the steamer, under the influence of that starboard helm, had brought the tug from two to seven points on her starboard bow. I will now, gentlemen, propose to you the questions which follow, asking you to retire with me into chamber to advise with me upon and to answer them :-First. Whether, in your opinion, the lights exhibited on board the steam tug were placed in accordance with the 3rd article of the regulations of the Privy Council, and whether there were any and what circumstances which

rendered a departure from them necessary in order to avoid Article 3. immediate danger? Secondly. Whether the said lights were or were not insufficient, improper, and calculated to mislead the people on board the steamer; and whether, in your opinion, they did mislead them? Thirdly. When the steamer first saw the steam tug moving towards her, and two points on her starboard bow-taking into consideration these vessels being on opposite courses—was there danger of their meeting end on, or nearly end on, so as to involve risk of collision; and, if so, what was the duty of each vessel under the circumstance? Fourthly. To what do you attribute the collision—to which vessel, or to both? State your reasons."

Judge Kelly returned with the assessors into Court, after one hour, and read the following answers, stating that he and the assessors were unanimous in regard to them :-"To the first question-We are clearly of opinion that the red and green lights were not placed on the port and starboard sides of the tug, in accordance with the rule, and as it was the duty of the master of the tug to have placed them—a duty he was the more bound to have observed from the circumstance of his having a lighter lashed at each side of the tug. We make no comment on the position of the white light, other than, even where it was, a proper relative -height with respect to the side lights would have been obtained for it had the latter been placed on their respective sides of the tug in a line with the rail. We are further of opinion, that no circumstance existed in the case which rendered a departure from the rule with regard to the side lights necessary. To the second question-We have already stated that the red and white lights were improperly placed, and we now say that the lights of the tug were insufficient, the white light alone showing up to the last moment before the collision. We entertain no doubt that this was calculated to mislead the people on board the steamer-the white light alone showing and appearing for so many minutes stationary, a stationary white light being the specified light for vessels at anchor. To the third question-The vessels were coming nearly end on, so as to involve risk of collision, and the duty of each vessel, under the rule, was to have ported her helm. To the fourth question-We attribute the collision to both vessels —to the tug for the insufficiency and misleading effect of her lights; to the City of Paris, for not having ported and slowed, and reversed in time, when she had the tug two points on her

Article 3. starboard bow.

Both parties being thus found to be in fault, the whole damage and costs of suit here on both sides must be borne equally between them; and my decree is to be made up accordingly."

On this case being carried on appeal to the Court of Delegates, the decision of Judge Kelly and his assessors was reversed; the higher Court holding that the breach of the 3rd Article of the Admiralty regulations was conclusive against the Louisa.

"The learned judge, said the senior member of the Court of Delegates, determined, with the aid of nautical gentlemen as assessors; 1st, that both parties were in fault; and, 2ndly, that the entire damage must be divided between both vessels. Both these propositions are impugned by the appellant, and if the learned judge below was wrong on the first point, the second does not arise; and it is our opinion, for we are all of the same opinion, that the judgment of the Court below must be reversed, as we cannot agree on the conclusions of fact which the learned judge has arrived at. The circumstances of the case have been so very lately before us, that it is unnecessary to recapitulate them; but the cardinal point of departure in it is this, that the original fault, which drew in its train what followed,—the fault without which there would have been no collision,-was the fault of the pro-movents below. The Louisa deliberately violated the 3rd Article of the statutable regulations. It is clear that her lights were misplaced, and were calculated to mislead, and did mislead, those on board the City of Paris; and the mistake they committed was in leading the steamer to suppose that she was a vessel at anchor. That is clear on the answer of the assessors to the second question, namely, 'Whether the said lights were or were not insufficient, improper, and calculated to mislead the people on board the steamer; and whether, in your opinion, they did mislead them?' We have already stated that the red and white lights were improperly placed; and we now say that the lights of the tug were insufficient, and the white light alone showing and appearing for so many minutes stationary,—a stationary white light being the specified light for vessels at anchor. It is clear it was that original default which produced the accident, and without which it would not have happened. For these reasons the appeal must be allowed, and the judgment of the Court below be reversed."

As to the construction to be put upon the words of this regu- Article 3. lation, as to the side lights, Dr. Lushington in the case of The New Ed v. The Gustav, said: "I have no hesitation in stating that my construction of these directions is, that there is to be a green light on the starboard side, and a red light on the port side, to be so constructed as to be visible on a dark night, &c. My notion of the meaning of starboard and port side is, to be visible on the side itself. I do not mean to say that it shall be visible exactly on the right side or on the left, but to be visible so as to produce a certain effect. It is the effect that the Parliament and the Government looked to; and not the position in which the lights are placed. It is not that the one is to be seen on the starboard or the other on the port, but that the lights shall be so placed that they shall produce the effect described in the Act of Parliament, i.e., they shall be so constructed as to be visible on a dark night with a clear atmosphere at a distance of at least two miles, and to throw an uniform and unbroken light over an arc of the horizon of 10 points of the compass. The real question is (even where there is no doubt that the vessel carried good lights) whether she carried her lights in such a form and such a position as to be visible to an approaching vessel ? "-Adm. Ct. Dub., M. R. April 2, and July 2, 1864.

See the case of The New Ed v. The Gustav, as given under Article 5, p. 28, post.