not entirely agree with the assessors who assisted him, but that cannot affect our judgment. We put ourselves in his position, and upon these facts, with the assistance we have derived from the Trinity Brethren who are with us, we have to say whether we can see that his judgment is wrong. A preliminary point was taken, but has apparently been abandoned, and I think very properly, by Mr. Myburgh, with regard to the title to sue. It is obvious that the learned commissioner intended to make any amendment that would be necessary in order to get the right parties on the record, and Mr. Strange (I think is the name) appears to have been mentioned as consignee, and no question was raised at the time and we do not consider that this is a point which is now open to the appellants to take. It has been passed by, and I see no reason to doubt that Mr. Strange is the right person to sue. Now, with regard to the facts of the case. We have already intimated our opinion that this voyage must be considered to have commenced from the time when the ship started from whatever were her moorings, with her cargo on board, for the purpose of proceeding down the New York harbour and out to sea, and that therefore the warranty of seaworthiness had been fulfilled. But, as to the facts which followed, the first question which arises is whether the vessel had been making any water before she struck on the shoal; and I must say, speaking for myself, that I greatly doubt the veracity of the captain's statement that she was making three inches of water before that time. I am very much inclined to think that that was stated by him to lead up to the five inches; but the reason why I reject his statement is that I find in the log a distinct statement that she was making no water; but however that may be, whether she was making three inches of water or none immediately after she struck on this shoal, she is recorded to have made five inches of water. Suggestions have been thrown out that the log had been tampered with and made up in a different ink, and so on, for which I really see no foundation whatever. It is quite certain that the master has never repudiated this log; he has adopted it. He has made statements in the protest upon the basis of it, and I, for my part, entertain no doubt that he did know perfectly well that the mate had recorded that the vessel was making five inches of water after she touched; and, more than that, the log shows that a certain damage done to the vessel was apparent, viz., that the waterways and decks were strained. This being the condition of things, the first question which was put to the assessors in the court below and which we have thought it right to put to the Trinity Brethren who assist us is, whether that indicated such an amount of damage to the vessel, as made it necessary for the master to consider whether he should put back or what other steps he should take for the purpose of remedying the mischief that had been done, or mitigating its consequences, and I may say at once that the Trinity Brethren who assist us here, and who very properly have been appealed to so often in the course of this discussion as those who would give us advice and who would be able to correct the assessors below, entirely agree with the assessors below. The question then arises, what should be [ADM. no done under such circumstances? Now, I must say that I am not prepared to hold, according to the argument put forward by Mr. Aspinall, that the instant it becomes clear that by going on some mischief will be done to some portion of the cargo, that it becomes the duty of the captain to go back, and perhaps put all concerned to a very enormous expense; neither, on the other hand, can I assent to the proposition that the liability of the owner depends upon the honesty of the belief of the captain that what he proposes to do is the right thing, and so far as I know, and so far as the argument before us to-day has informed my mind, I am not aware of any authority for the proposition, except the supposed authority of Cohn v. Davidson. I think it perfectly clear from the context (my learned brother who will deliver judgment will probably know more than I of the facts), and I infer from the judgment, that so far from the court in that case not adopting the language of Lush, L.J., that what they were seeking to do was to show that the parties had not been prejudiced by a hasty expression of Lush, L.J., and to show that the facts corrected that, and that the rest of his summing up prevented the jury being under any misconception. But, passing from that, I must say that I am inclined to think that the argument which has been so forcibly put by Mr. Kennedy is correct, that the master is entitled to take into consideration the whole venture. He must not consider only the question of the ship, he must consider the question of the whole venture. Well, you can doubt introduce a very large number of elements for his consideration, and the question what would be right for him to do would of course depend on the distance he has gone from the port. I put an extreme case by way of testing it. It seems to me, what it would be plainly a man's duty to do, if he was only half a mile or a mile from the port, would be something very different if the ship had gone twenty miles, or any other distance you might suppose; but the question in every case, in my judgment, which has to be considered is this, whether or not, taking all the circumstances into consideration the master has been guilty of negligence. Of course, that must be judged by the opinion of the tribunal which has to determine upon it. We cannot take the uncertainty of his mere judgment as a test; we have to consider whether a properly constituted captain in that position would have done what this captain has done. Upon this point we have taken the opinion of those who are with us, and they are of opinion that this captain did not do all he ought to have done, and that he has been guilty of negligence in one manifest respect. Before mentioning what he might have done, I may say it appears to me in this case that the captain did not exercise any judgment at all. He did not take into account what he was to do, but he blindly and promptly went on his way without considering what should be done under the circumstances which had arisen, and his excuse now is one which I do not believe, namely, that he was not conscious that he was in any exceptional position; that he thought he might go on and might treat the result of getting on the shoal, and the fact that he was drawing five inches of water in an hour, as of no importance. We are advised that one obvious thing which he might have done was this, that when he saw, as I am assuming that he did, that the vessel had been so strained and had received such a shock that her waterways and decks were strained, and that in some way or other she was making five inches of water per hour, that ought to have indicated that he should, at least, have taken the precaution of having the waterways and the decks caulked for the purpose of preventing the water getting through, as it was able to do, if she encountered any bad weather such as she did encounter at that season of the year. There is, therefore, in the judgment of those who assist us, one plain element of negligence which would, if it had not been committed, from the precaution which has been mentioned, have had a tendency to prevent the saturation of the deck with water and the penetration of water into the hold. 66 But," says Mr. Myburgh, "there being no damage shown to have been done to the bottom, therefore that shows that this damage cannot have resulted from the negligence that is imputed." I really have not been able to follow that. It is obvious that if she made more water after she touched on the shoal than she did before-if we draw the inference that the touching on the shoal was the cause of her making more water-then, if there was no damage to her bottom, it is plain that something was done which caused her to take in water, and which may have equally had the effect of rendering her waterways and her decks less capable of resisting the water which she shipped afterwards in the course of her voyage. There being some negligence established, it lies upon the shipowner to distinguish, if he can, what portion of the damage which has arisen did not arise from the negligence which has been established against him-that is, against the person who has been guilty of negligence; and, if it is a sufficient cause for the injury which has resulted, then it lies upon the person accused to show that it did not, in fact, arise from this sufficient cause, but arose from some other sufficient cause. We are of opinion that the negligence of not caulking has, in itself, contributed largely to the damage which has resulted, and that, therefore, there is sufficient basis upon which this judgment can be maintained. FIELD, J.-I quite agree with the President in coming to the conclusion that the judgment of the court below ought not to be disturbed. This is a form of action I am not accustomed to, but still the principles are the same in this court as in those courts in which I have the honour to preside. I understand this to be an action for damage to cargo brought by the owner and consignee of goods received under a bill of lading, and by which it became the duty of the defendants to carry the goods to the port of discharge, and there deliver them "in the like good order" as when received, perils of the sea excepted. It is admitted that the goods were put on board in good condition. It is admitted that they arrived at their port of discharge in bad condition and damaged. It is admitted that the damage was caused by sea water; that, therefore, the damage must have occurred some time or other whilst the goods were under the charge of the master. Then it is said that, although, no doubt the proximate cause of the damage to the goods was sea water caused by shipping seas in very bad weather, [ADM. that the deck of the ship, which ought to have protected the cargo against the shipping of the seas, was in such a defective condition as that it permitted the seas to pass through; and that that defective condition (although in itself originally also due to perils of the seas) was one which it was the duty of the master to have known of and ascertained, and that he ought not to have proceeded on his primary duty, of going to the port of discharge, without taking steps to ascertain whether his cargo would receive damage, or whether there was anything which could, and might, and ought to have been done to prevent that. That is the shape the case assumes. Now, then, it is certain, therefore, that the goods were received sea-damaged. It is clearly admitted also now that she started seaworthy, and, if any thing had happened at all to her, Mr. Aspinall could not have been here supporting the judgment. But what did happen to her? When she was at a good distance from New York, from where she had started, she ran on a shoal, and she appears to have got on stem foremost, and, without going through it at length, it is obvious there was a great deal of tugging and pulling at her. A hawser was broken; they were an hour and three-quarters trying to get her off; and no man who has been at sea will doubt that such an operation will have a tendency to strain a heavy ship with a heavy cargo of grain and flour on board. And not only would that have called the attention of a prudent master, but we find that the man on board next in charge of the ship-the mateactually saw the condition of the deck. He describes how the ship was strained, and the master says so too in the protest-and a most careful master, because he takes uncommon care not to put anything into the protest which his owner would not like, because he writes to him and asks him whether it should be put into the protest or not. The mate is a most careful man; he saw the ship was strained, saw the waterways, and that was the place where the deck was strained and where it was injured, and where the water would be likely to get through. What does that show? Surely that, at least, it ought to put on the master the duty of ascertaining and considering_and examining. He did nothing whatever. He says he did not notice the deck; but his mate did, and he must have seen the log, when the mate made up the log. Under these circumstances, what was it his duty to do? Mr. Myburgh says it was his duty to proceed; so it was, primarily, but also to proceed with care, and not to proceed if dangerous. He would not have to proIceed if he knew that a hostile fleet were in front of him, and that there was danger of war. It was his duty to take care of his ship and cargo, and to see that his ship was never in such a position as would be likely to damage his cargo, and if she was, to see if anything might be done, so that he might safely proceed in the direction he required. What had he before him? A North Atlantic voyage in midwinter. I should like to know where the master is to be found who would not know what quantities of sea he would have to ship in the course of such a voyage as that. If so, what was it his duty to do? His first duty would have been to have called up the carpenter, and he might have said that they had no tow on board, and could not proceed in that weather. All that might have been done, but nothing of the kind was done, and it seems to me therefore that the captain does not come within the protectionif there is a protection-which there is said to be from the summing up of Lush, L.J. in the case of Cohn v. Davidson. For myself I may say, I know of no authority for saying that the master of a ship, or anyone else who has a duty under contract to exercise due care and skill, may excuse himself by saying, "I did not exercise care and skill, but I honestly thought I did." I know of no such case. There are, no doubt, many cases in which if a wrongdoer puts you into a position of danger, so that you are called upon hastily to take some steps, and you do happen then to take the wrong course, that there you are excused as against the wrongdoer. In the well-known case of the railway passenger, who being carried on, believing honestly and fairly that she was being carried on beyond her station, and thereupon got down hastily, and contributed probably by her mode of getting down to the injury, it was held that there the company were still responsible, though she might have done a wiser thing, namely, to have stopped in the carriage and gone on to the next station and come back again by the next train. But these are very different cases from this. I myself do not believe that Lush, L.J. intended to lay down any such doctrine, that a passenger whose duty it is to use due care and skill, may be excused for a breach of that duty simply if he honestly exercises a judgment in doing it. That certainly was not the view which the court (of which I had the honour of being a member) took of that; but we considered in that case, although the question itself was made a strong point by the Solicitor-General, that it might possibly, taken by itself, have misled the jury; yet, when accompanied by the observations of the Lord Justice in summing-up to the jury, it showed that no such damage was sustained. That was the true effect of Cohn v. Davidson in my opinion. I cannot see that in the present case the master brings himself within that protection, because he took no means and exercised no judg ment whatever. I agree with many of the arguments very ably put by Mr. Myburgh and Mr. Kennedy. I should not, perhaps, rely very much on the five inches per hour, because the damage did not arise from that, but it was an index of things to look at and consider. If she had made no water, or even three inches of water originally, and after such a shock as this made five, it is an element to be taken into consideration that she had received a strain. If the captain had known that, and looked at the waterways, he would have seen it. Did this damage arise from the waterways? Mr. Dent clearly establishes that it did (and there is no evidence to the contrary), because he says the damage was through the constant trickling of water down the ship's side, so that the timbers had become sodden with the water; that is not due to the water rushing through a ventilator hole or sweeping the deck-house down; it is due to the constant trickling day after day, for eleven days, of water going through the seams which a little caulking might unquestionably have stopped. I think, therefore, it is impossible to say that the judgment was wrong. We have the advantage of the learned assessors here, who [ADM. concur fully with the judgment of the assessors below. Judgment affirmed, and a reference to the registrar and merchants ordered to assess the amount of the damage. Solicitors for the appellants, Thomas Cooper and Co. Solicitors for the respondents, Pritchard and Sons. Thursday, June 12, 1884. (Before BUTT, J., assisted by TRINITY MASTERS.) THE PACIFIC. (a) Collision-Regulations for Preventing Collisions 1880, art. 11-Infringement-Lights-Fishing smack-Overtaking ship. The bright white light carried by a trawling fishing smack when attached to her nets in pursuance of the provisions of art. 9 of the Regulations for Preventing Collisions 1863, although visible astern, is not a white light shown from the stern to an overtaking ship within the meaning of art. 11 of the Regulations for Preventing Collisions 1880. Where it is the duty of a vessel to carry or show lights, and those lights are not carried where they are visible, or are not shown, the court will not be extremely nice in finding another vessel to blame because those on board her fail to see the firstmentioned vessel within a few yards of the distance when such vessel ought first to have been seen. THIS was a damage action in rem, instituted by the owners of the fishing smack Speculator against the owners of the steamship Pacific, to recover damages for the loss of the smack, occasioned by a collision between the two vessels on the 24th March 1884 in the North Sea. The defendants counter-claimed. The facts alleged on behalf of the plaintiffs were as follows:-About 3 a.m. on the 24th March 1884 the fishing smack Speculator, manned by a crew of five hands all told, was trawling on the Dogger Bank about 170 miles E.N.E. of the Spurn. The weather was fine and clear, with a light wind from about north, and the Speculator was on the port tack with all sail set except the mizen topsail, her mainsheet being slacked out. Her trawling gear was on the ground, and she was heading about E. by N. and making about one knot an hour and some leeway. A white light was exhibited from the crosstrees on her mainmast; such light was visible all round the horizon, and a good look-out was being kept. Under these circumstances the masthead light of the Pacific was seen from three to four miles distant, bearing about a point on the starboard quarter. Shortly after the red light came into view, and, although loudly hailed by those on board the Speculator, the Pacific came on with great speed and struck with her stem and port bow the starboard quarter of the Speculator, doing her so much damage that she shortly sank. The facts alleged on behalf of the defendants were as follows:-The screw steamship Pacific, of 466 tons net, was shortly before 3.10 a.m. on the 24th March 1884 in the North Sea, on a voyage (a) Reported by J. P. ASPINALL and F. W. RAIKES, Esqrs., Barristers-at-Law. from Hull to Dantzic. The weather was fine, but dark and cloudy towards the horizon, and there was a fresh breeze from about north. The Pacific was proceeding under steam with her foretopsail and forestaysail set, heading E. by N. N., and making between eight and nine knots an hour. Her regulation lights were duly exhibited and burning brightly, and a good look-out was being kept on board of her. In these circumstances those on board the Pacific observed at the distance of about a ship's length from the Pacific and right ahead (if anything a little on the starboard bow) the boom of the smack Speculator under sail. No light on board the Speculator, until after the collision, ever became visible to those on board the Pacific. The engines of the Pacific were immediately stopped and her helm was ordered harda-starboard, but a collision between the two vessels took place almost immediately afterwards. The defendants (inter alia) charged the plaintiffs with breach of art. 11 of the Regulations for Preventing Collisions at Sea, in not exhibiting a white or flare-up light from the smack's stern. Art. 11 of the Regulations for Preventing Collisions 1880 is as follows: A ship which is being overtaken by another shall show from her stern to such last-mentioned ship a white light or a flare-up light. Art. 9 of the Regulations for Preventing Collisions at Sea 1863, continued in force by Order in Council is as follows: Fishing vessels and open boats, when at anchor or attached to their nets and stationary, shall exhibit a bright white light. The evidence on behalf of the plaintiffs proved that the white light was carried in the weather crosstrees, that that was the usual place to carry it, and that it was visible astern. The witnesses on behalf of the defendants admitted that while it was possible, had their attention been directed to the smack, to have seen her at a distance of two ship's lengths, they did not see her until within the distance of one ship's length. They also stated that, having regard to the relative position of the two vessels, it was impossible for them to have seen the white light of the smack. Dr. Phillimore (with him Bucknill) for the plaintiffs. Assuming the smack's light not to have been visible all round the horizon, it was nevertheless carried in the place where it is the practice for fishing smacks to carry their light. Those on board the steamer, seeing that they were navigating across a fishing ground, should have taken extra precautions. It is, however, admitted that the steamer was making from eight to nine knots, and it is submitted that, under the circumstances, this was an excessive rate of speed. Assuming that the smack was bound by art. 11, we contend that there has been a compliance with it. The rule requires a white light or a flare-up light to be shown from the stern. Having regard to the fact that the smack's light was a white light on the crosstrees, and therefore visible astern, the duty to show a white light from the stern was complied with. [BUTT, J.-Surely the obvious intention of the Legislature in using the words "from her stern" is that the light is to be abaft everything that might possibly interfere with its being visible to an overtaking vessel. That is what I think the Legislature meant by the rule.] Assuming that to be so, the effect in the present [ADM. case is the same. Whether the light had been exhibited from the stern or was hung on the crosstrees, it was yet visible to the overtaking ship, and therefore the breach of the rule cannot be said to have by any possibility contributed to the collision. According to The Reiher (4 Asp. Mar. Law Cas. 479; 45 L. T. Rep. N. S. 767) a vessel is not bound to show a white light or flare-up light to an overtaking vessel, unless there is ground for the apprehension of danger. Under the circumstances of this case, there was no ground for the apprehension of danger. The defendants have admitted that it was possible for them to have seen the smack at a distance of two ship's lengths, while they say that as a fact they did not see her until within a ship's length off. If so, they should be held to blame for having a bad look-out. Hall, Q.C. (with him Kennedy) for the defendants. It would be impossible for vessels coming from the southward in certain directions to see the smack's white light, which would necessarily be shut out by the mast and rigging. It is obvious that the plaintiffs have infringed art. 11 of the Regulations. The white light there alluded to must be shown at the stern, so that there may be nothing abaft it which may intercept its rays, and further to indicate to an overtaking vessel the exact position of the stern of the overtaken ship, and thus enable the overtaking ship to manœuvre accordingly. The fact that those on board the steamer did not see the smack herself quite so soon as was physically possible is no proof of negligence. As to the speed of the steamer, there is no rule of navigation which says that in the absence of fog a steamer shall not go full speed, provided she is carefully navigated. Dr. Phillimore in reply.-A steamer is not justified in running at full speed on a dark night across a fishing ground: The City of Brooklyn, 1 P. Div. 276; 3 Asp. Mar. BUTT, J.-This is a case where, on a fine night but perhaps rather dark and cloudy towards the horizon, the smack Speculator was run down and sunk by the steamship Pacific in the North Sea, somewhere in the neighbourhood of the Dogger Bank. The substantial questions in the case relate to the lights carried or shown by the smack. For reasons to which I have adverted in the course of the evidence and during counsel's speeches, it is not necessary to go into the questions raised under the Orders in Council, which deal with art. 9 of the old and art. 10 of the new Regulations for Preventing Collisions (a). It is clear from the evidence that the smack's light was so placed that it did not show all round the horizon. What exact number of points was obscured it is not easy to say, but that it did not show all round is clear. But I do not say that the smack is necessarily to blame for that. There is a difficulty in placing these lights, and it has yet to be decided whether it is possible to have a light which will show all round the horizon. However, in that state of things, it is certainly more important that the other regulations as to lights should be strictly observed. Now, it seems (a) The question as to what lights are to be carried by a trawler when attached to her nets and stationary has been subsequently dealt with by the Court of Appeal in the case of The Dunelm, post.-ED. clear to myself and the Elder Brethren that the regulation which requires a light to be shown from the stern to an overtaking vessel was infringed. Even apart from the regulations, one would have thought that, under the circumstances of this case, it would only have been an ordinary precaution to have shown a light from the smack's stern. Some suggestion has been made on behalf of the plaintiffs that, assuming the white globular light fixed on the crosstrees was not hidden by the sails or spars of the smack, but was visible astern, there has been a substantial compliance with the regulation. I, however, do not think that contention can successfully be maintained. 1 think the view of the Legislature in laying down this regulation was something very different from a light carried in the forepart of the vessel, even assuming it to be visible astern. It has then been said that the steamer is also to blame. As to those on the steamer not seeing the smack's light, I think that it was so obscured by the smack's sails as not to be visible to them. We are satisfied that there was a good look-out on the steamer. The light of another steamer had just previously been seen, and we think it impossible that the smack's light, which is admitted by those on board the steamer to have been a good light, should not have been seen had it been visible. There has been some discussion as to the way in which this light was carried. However, taking the view I do, it is not necessary to decide that. Wherever it was, I think that it was obscured from those on the steamer until the smack had been turned round by the force of the blow. Then arises a further question. Assuming that the smack's light was obscured, ought not those on the steamer to have seen the smack's sails at an earlier period and perhaps in time to have avoided the collision? I have considered that matter, and I must say that where it is the duty of a vessel to carry or show lights, and those lights are not carried where they are visible or are not shown, I do not think the court ought to be extremely nice in finding another vessel to blame because she has failed to see her within a few yards of the distance when she ought first to have been seen. It is then said that the steamer in crossing a fishing ground at full speed was going at an improper rate. I, however, do not think that her speed under the circumstances was such a rate of speed as to constitute negligent navigation. On the whole, therefore, I come to the conclusion that the smack must be pronounced alone to blame for this collision. Judgment for the defendants. Solicitors for the plaintiffs, Pritchard and Sons. Solicitors for the defendants, Stokes, Saunders, and Stokes. Tuesday, June 10, 1884. (Before BUTT, J.) THE BOWESFIELD. (a) Collision-Loss of life-Action in rem-Lord [ADM. 1888. After the 10th Jan. 1884, it having been decided in the interim by the Court of Appeal that the Admiralty Court had no jurisdiction in such actions, the plaintiffs applied to add as defendants the owners of the wrongdoing ship personally. Application refused upon the ground that, under the provisions of Order XVI., r. 11, proceedings against the parties proposed to be added would only be deemed to have commenced from the date of the service upon them of the writ of summons, and hence the action would not have been commenced against them within the time provided by Lord Campbell's Act, and the court being of opinion that it had no power to add parties as defendants in personam in an action in rem, thought it ought not to make the order merely because the objection as to time was an objection which ought strictly to be taken at a later stage. THIS was a motion by the plaintiffs in an action in rem under Lord Campbell's Act to amend their writ of summons by adding the names of the registered owners of the steamship Bowesfield as defendants in the action. The collision, out of which the action arose, occurred between the schooner Laura and the British steamship Bowesfield, on the 10th Jan. 1883, in the Straits of Dover. By reason of the collision Carl Bjorn Pedersen and Axel Pedersen, two of the crew of the Laura, were alleged to have been drowned. On the 4th Jan. 1884 the legal personal representatives of Carl Bjorn Pedersen and Axel Pederson brought an action in rem under Lord Campbell's Act against the owners of the Bowesfield to recover damages sustained by the deaths of the said Carl Bjorn Pedersen and Axel Pedersen. The Bowesfield was never arrested, in consequence of her owners on the 17th Jan. 1884 undertaking to enter an appearance in the action. Owing to the decision of the Court of Appeal in The Vera Cruz (51 L. T. Rep. N. S. 104; 9 P. Div. 96), that the Admiralty Division has no jurisdiction to entertain an action in rem under Lord Campbell's Act, the plaintiffs took out a summons on the 14th May 1883 before the registrar to amend the writ of summons by adding the names of the registered owners of the Bowesfield as defendants. On this summons coming on for hearing the registrar refused to make the order and condemned the plaintiffs in the costs of the summons. Thereupon the plaintiffs took out a similar summons before the judge in chambers, who upon it coming before him referred it into court. Lord Campbell's Act (9 & 10 Vict. c. 93), s. 3, is as follows: Provided always and be it enacted, that not more than one action shall lie for and in respect of the same subject matter of complaint, and that every such action shall be commenced within twelve calendar months after the death of such deceased person. T. T. Bucknill, on behalf of the plaintiffs, in support of the motion. This application is made in consequence of the decision of the Court of Appeal in The Vera Cruz (ubi sup.), where it was held that no action in rem would lie under Lord Campbell's Act. The plaintiffs, therefore, wish to add the owners of the Bowesfield under the provi |