meeting the extra-articulate evidence, the Court will give leave to counterplead, and produce evidence on the counterplea (a). "On the part of the captain," said Lord Stowell, "there are several witnesses, and among them Mr. Evans, whose testimony alone, if true, is decisive upon the subject; and I don't think it a sufficient objection to his testimony, that his conversations with the captain in respect of this young man are not to be found in the allegation as well as in his evidence; that is a technical objection not to be too strictly applied" (b). It has been held that in an action of collision brought by the owners of a vessel and the crew, for their private effects, that admissions of the crew as to the circumstances of the collision cannot be pleaded. "I cannot think," said Dr. Lushington, "that the fact that the seamen are parties to the action-plaintiffs in the cause-is a sufficient reason for the admission of this article. If we allow admissions by the crew to be evidence in cases of collision, we shall have conversations in pot-houses pleaded, counterpleaded, proved and disproved, and all to no purpose. We have never allowed such admissions here, and I don't wish to allow them. The article must be struck out" (c).

The evidence formerly consisted of written depositions only. Witnesses are now summoned and examined vivá voce before the Court, or before an Examiner or Commissioner of its appointment (d), the Judge determining upon all the facts of the case, the complainant's right to amends, and the principle of their computation (e). In this he is usually assisted by two of the masters or elder brethren of the Trinity House, who, having heard the evidence from the mouths of the witnesses, or read from the depositions, and the Judge's direction on the law, give their opinion, in private consultation with him, as matter of nautical skill, which of the two vessels was to blame, or that neither or both were to blame, and that opinion is almost always, adopted by the Court.

(a) The Schwalbe, Swab. 461 and 521.
(b) The Harvey, 2 Hagg. 83.
(c) The Foyle, 1 Lush. 10.

(d) 3 & 4 Vict. c. 65, & 24 Vict. c. 10. ss. 734. The Ida, 1 Lush. 6. See also The Druid, 1 W. Rob. 391; and as to the instance jurisdiction over foreigners. The Two Friends, 1 Rob. 280. The Golubchick, 1 W. Rob. 143; Reg. v. Cunningham, 28 L. J. M. C. 66, in which it was held that the whole of the British Channel is within the counties by the shores of which its ports are bounded. The Court of Admiralty has jurisdiction over causes of collision but not of damage generally. In a suit against the Danish schooner Ida, it appeared that her master, while she was lying alongside the quay at the port of Ibraila, on the fresh waters of the Danube, 115 miles from the Black Sea, got on board an English barque alongside him, and with a view to get the schooner out, wilfully cut the barque adrift from her moorings, whereby she swung to the stream, and

capsized a barge which contained cargo in fruit belonging to Turkish owners. The jurisdiction of the Court was denied ratione loci, the damage not being in tidal waters, over which alone, it was contended, that the Admiralty had jurisdiction, ratione delicti, the ship proceeded against being in no respect instrumental to the injury; the act complained of a personal act of the master, not within the scope of his ordinary duties, but wanton and wilful, and therefore not within the principle on which the action in rem in cases of maritime torte is founded. The Court, declining to define where the Admiralty jurisdiction in foreign rivers begins or ends, and where municipal jurisdiction obtains exclusively, adopted the latter class of objections, and dismissed the petition of the Turkish owners of the cargo destroyed.

(e) In estimating the dainage, the loss of the benefit of an agreement by reason of the collision may be taken into account.The Matchless, 10 Jur. 1017. The Betsy, 2 Hagg. 28. The Yorkshireman, ibid. 30.

In pronouncing its decision the Court proceeds secundum allegata et probata. The party suing cannot recover in full if he fails to prove the case set up in his pleading and evidence, although fault be established against the other vessel and none against his. Thus, the libel and evidence of the Tecla Carmen, alleged that the North American had no look-out, had starboarded just before the collision, and had struck the Tecla Carmen on the port side, with her starboard bow. The North American's want of look-out was proved, but her having starboarded not being proved, and it being proved that she had struck the Tecla Carmen with her port, and not with her starboard bow, both vessels were held to be in fault (f). So, where the plaintiff pleaded that the collision was wholly caused by the defendant's vessel starboarding; and the court below decided that the plaintiff's vessel was solely to blame, the Court of Appeal, though holding that the plaintiff, on the true facts of the case was not to blame, but entitled to recover, affirmed, nevertheless, the judgment of the court below, because the starboarding of the defendant's vessel was not proved (g).

The plaintiff, it will be observed, in both of these cases, failed to establish the principal charge against the defendant's vessel; but where a plaintiff pleaded two separate collisions, and proved the first, and that it broke the chains of the proceeding vessel, and so weakened her power to resist the gale, as to be the efficient cause of her going on the rocks, it was held unnecessary to consider whether there had been as pleaded, a second collision, and that the plaintiff had fulfilled the condition of the rule (h). The defendant, on the other hand, need not do more in plea than deny that the collision was occasioned by the default of his vessel. Though he plead a particular fact as the cause of the collision, he is not bound to prove it, and if he fail in doing so, he is not thereby concluded (i).

In cross-actions it may sometimes happen that the decree in one will not be the exact reverse of the decree in the other, as, where in the first action the plaintiff fails, only because the burden of proof is upon him, and he cannot make out his case affirmatively, the defendant in his cross-action will not be entitled to judgment, for neither will he have succeeded in proving his case (k).

By this procedure, before the enactment of positive regulations for the prevention of collision, the rules of the sea, which usage had established among mariners, were applied and vindicated in the Court of Admiralty, where each cause was determined on principles, not always consonant to those which would regulate its decision at common law; but, on the whole, perhaps, as conducive to the real justice of the case, and as satisfactory to the litigant parties. Thus, in the case of the Woodrop, above cited, Lord Stowell told the

But claims for damage done to the cargo of a ship run on shore after a collision, and for loss of the ship's employment, in the nature of demurrage, have been refused. The Eolides 3 Hagg. 367. The Columbus, 3 W. Rob. 158.

(f) The North American, Swab, 358.
(g) The Ann, 1 Lush. 55.

(h) The Despatch, 1 Lush. 98.
(i) The East Lothian, 1 Lush, 241.
(k) The Vortigern, Swab. 518.

Trinity Masters, "that the law imposed upon the vessel having the wind free, the obligation of taking proper measures to get out of the way of a vessel close-hauled (b), and of showing that it had done so. If they thought proper precautions were taken by the persons on board the Woodrop, then it would be necessary to inquire whether those measures were counteracted and defeated by improper measures taken by those on board the other ship." Again, in a suit against the Shannon, a steam vessel, for damage done by her to a sailing vessel, the British Union, it was urged that the Shannon being on the starboard tack, was right in holding her course, and that the British Union, which was on the larboard tack, ought to have borne up (c) ; but the Trinity Masters observed, "that the state of the wind was of no great importance, as the Shannon, not receiving her impetus from sails, but from steam, should have been under command; that steam boats, from their great power, should always give way (d); that they were satisfied the Shannon had seen the British Union, and that the Shannon was to blame;" and the court decreed accordingly.

Previously to the passing of the 3 & 4 Vict. c. 65 (e), the Court of Admiralty had no jurisdiction, where the collision took place within the body of a county (f), the jurisdiction given by that statute extending only to cases of damage received" by any ship or sea-going vessel." But by the Merchant Shipping Act, foreign ships, by which damage may have been done to any property of her Majesty, or of her subjects, in any part of the world, may be arrested in any port or river of the United Kingdom, or within three miles of the coast thereof, by the order of the Judge of any court of record, the Judge of Admiralty and the Court of Session, or Sheriff in Scotland, upon its being shown by any person applying for such arrest, that such damage was probably caused by the misconduct or want of skill of the master or mariners of the ship against which the application is made, except as to ships doing damage within the body of any county (g). And by the 24 Vict. c. 10, s. 7, the Court of Admiralty has jurisdiction over any claim for damage done by any ship; and such ship may be detained until satisfaction given, or security to abide the event of any action and for costs.

(b) See the case of The Baron Holberg, 3 Hagg. Ad. Rep. 244; and Handyside v. Wilson, 3 Car. & Pay. 528. Jameson v. Drinkald, 12 Moore, 148. In estimating the liability of ships which have come into collision, the question "close hauled" or not is one of degree; the expression is not limited to vessels which are sailing as close as possible to the wind. Chadwick v. City of Dublin Steam Packet Company, 6 E. & B. 771. The Dumfries, P. C. Swab. 125. The North American, ibid. 358.

(c) See also the Jupiter, 3 Hagg. 320, in which the same rule is laid down.

(d) The Shannon, 2 Hagg. Ad. Rep. 173. A steamer which, going in a fog with un

abated speed, in a tack frequented by
coasters, did not, when hailed, order her
engines to be stopped, was held liable, a
collision having ensued, to the amount of the
damage and costs.-Perth, 3 Hagg. 414.
See also The Rose, 2 Wm. Rob. 1.
(e) See Appendix.

(f) The Eliza Jane, 3 Hagg. 335. Violet v. Blague, Cro. Jac. 574. Velthusen v. Ormsley, 3 T. R. 315. The Public Opinion, 2 Hagg. 398.

(g) This enactment does but give effect to the general maritime law. The Ticonderoga, Swab. 215. The Grieswold, Swab. 430.

3. Trinity House Order of 30th October, 1840.

An order (h) promulgated by the Trinity House Corporation on the 30th of October, 1840, provides as follows: "Whereas the recognized rule for sailing vessels is, that those having the wind fair shall give way to those on a wind; that when both are going on the wind the vessel on the starboard tack shall keep her wind, and the one on the larboard tack bear up, thereby passing each other on the larboard hand; that when both vessels have the wind large or abeam and meet, they shall pass each other in the same way on the larboard hand, to effect which two last-mentioned objects the helm must be put to port; and as steam vessels may be considered in the light of vessels navigating with a fair wind, and should give way to sailing vessels on a wind on either tack, it becomes only necessary to provide a rule for their observance when meeting other steamers or sailing vessels going large.

"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" (i).

In a case of collision (k), between the steamer Menai and the schooner Friends, it was stated on behalf of the Menai that she was coming up the river, and was on the Kentish shore, distant about onethird of the whole breadth of the reach, the night being dark, the tide ebbing, and the wind blowing strong from the west; that she observed a vessel coming down the river just open over the starboard bow; that as soon as the vessel was reported, the helm of the Menai was put to starboard, in the full belief that the schooner would keep down the mid-channel in order to go down with the strength of the tide.

"Prima facie," said Dr. Lushington, addressing the Trinity Masters, " and unless some exception is to be engrafted on these rules, the rule applies, and then it follows that the Menai was to blame for putting her helm to starboard, and the Friends acted right."

(h) The Duke of Sussex, 1 W. Rob. 274; and see the General Steam Navigation Company v. Tonkin, 4 Moore, P. C. C. 314, and The Hope, 1 W. Rob. 157, in which it was held, that the rules were not to be pertinaciously adhered to when collision would be prevented by a different course.

(i) This rule is only applicable when the vessels, by continuing their respective courses, are in danger of coming into collision, and when, by putting their helms to port, the collision may be avoided; and if either

vessel by unskilful management be so near the shore that by porting her helm there would be danger of collision, the vessel on her right course would, in spite of the rule, be justified in putting her helm to starboard. The General Steam Navigation Company, App., Tonkin, Respondent, 4 Moore, P. C. 361.

(k) The Friends, 1 Wm. Rob. 478. The Gazelle, 1 Wm. Rob. 491. The Clyde, Swab. 23.

The Trinity Masters stated their opinion to be, that the steamer Menai was to blame, and that the schooner Friends had conducted herself properly; and the learned Judge dismissed the claim of the former vessel, and condemned her in costs.

Although not a law per se, this order of the Trinity House Corporation was considered by the Court of Admiralty as a rule to be observed, and of binding authority upon the owners of steam vessels to this extent, at least, that in causes of damage, masters not complying with it were deemed guilty of unseamanlike conduct, and the owners held responsible for the consequences of their disobedience (e). But in the Courts of Common Law the observance of the rule was at best a duty of imperfect obligation, and considerations of usage and of convenience like to those suggested in the case of the Friends, were sometimes successfully urged to excuse a departure from it.

4. Provisions of the Merchant Shipping Act, 1854.

For remedy of this diversity, it was, by the 17 & 18 Vict. c. 104, enacted, that whenever any ship, whether a steam or sailing ship, proceeding in one direction should meet another ship, whether a steam or sailing ship, proceeding in another direction (f), 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 shall be put to port (g), so as to pass on the port side of each other; and that this rule should be obeyed by all steam ships and by all sailing ships, whether on the port or starboard tack, and whether close-hauled or not, unless the circumstances of the case should be 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 should be had to the dangers of navigation, and as regards sailing ships on the star

(e) The Duke of Sussex, 1 W. Rob. 274. The 297th section (now repealed) of The Merchant Shipping Act, by which it is provided that every steamship, when navigating any narrow channel shall, whenever it is safe and practicable, keep to that side of the fair way or mid-channel which lies on the starboard side of such steamship," has been held, though not binding as law upon foreign ships, to have established a customary course of navigation for all steam-ships in the river Thames, which the masters of foreign ships are bound to know and obey. The Fyenoord, Swab. 374.

(f) On reference to the regulations now in force it will be seen that the language adopted to effect the object of this section of the Merchant Shipping Act has been varied, the words "if two ships are meeting end on or nearly end on "being substituted for the words printed above in italics. (See Appendix).

(g) 17 & 18 Vict. c. 104, s. 296. The question for the jury is, was there danger?"

Steam Navigation Company v. Mann, 21 L. T. 87 C. P. "Whenever," said Dr. Lushington, "it is intended to charge a breach of the 296th section of the Merchant Shipping Act with respect to the rule of port-helm, it should be directly alleged that the act done or not done was in violation of the statute. It should not be left to the court to draw the inference, as it was in the case of The James, Swab. 60. Notwithstanding the great discussion which that section has undergone, I am not sure that it is yet settled whether not porting in time is always a breach of the statute, or whether the vessel must have neglected altogether to port, to come within the penalties assigned for a breach of the rule."