CHAP. III.]

Of Collision.

board tack, close-hauled, to the keeping such ships under command (h), and that every steam ship, when navigating any narrow channel, should, whenever it was safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such steam ship (i).

The commissioners for exercising the office of Lord High Admiral were empowered to make, from time to time, such regulations respecting the exhibition of lights and the use of fog signals by steam vessels, and other vessels, as they should think fit, and to revoke, alter, and vary them from time to time; and they were required to publish such regulations in the London Gazette, the production of which should be sufficient evidence of them, and to furnish a copy or master of a vessel who applied for thereof to any owner the same (k).

And it was enacted, that the owners, master, or other person having the charge of vessels, should exhibit such lights, and use such fog signals, as by such regulations of the Admiralty should be required, under a penalty, not exceeding 207., upon the master or the owner, if it appeared he was in fault, for each infringement of the regulation (4).

And that if in any case of collision it appeared that such collision was occasioned by the non-observance of the foregoing rules with respect

(h) 17 & 18 Vict. c. 104, s. 296. It having been proved in a cause of collision that a vessel, close-hauled, on the starboard tack, was as close as she could be to the wind to keep her well under command, she was held not bound under this section to port her helm. The Confucius, lying-to, close-hauled, on the port tack, her helm lashed a-starboard, her head north to north-by-east, was approaching the James, also lying-to, close-hauled, on the starboard tack, her helm lashed a-port, her head sonthEach vessel west to south-west-by-south. was sighted by the other on its port bow at a distance of a quarter of a mile. A collision ensued, the port bow of the Confucius being stove in by the stem and starboard bow of the James. Both vessels having been held to blame in the Court of Admiralty, the Confucius for not having ported her helm in time, the James for not having thrown back her head yards when the collision was probable-and each held liable for a moiety of the damage; that judgment was reversed by the Court of Appeal, on the ground that the blame, of which the Confucius had been guilty, was such as to preclude her from receiving anything under the 296 and 298 sections. The James, Swab. 55, It was decided upon this rule that it applied to vessels lying-to (The James, P. C. Swab. 60), but not to vessels crossing, (The Cleopatra, Swab. 136); that porting immediately was not required by it; if "the

56.

" was vessel meeting in an opposite direction seen at a considerable distance (The Mangerton, Swab. 120); that a vessel having ported as required by the rule, was justified in starboarding at the last moment to avoid immediate danger (The Joseph Somes, ib. 185); that porting was required of a vessel which sighted the red light of another three points on her starboard bow (ib. 120) or its green light two points on her port bow (The Cleopatra, ib. 137); otherwise, probably, if the green light was seen three or four points on her starboard bow, and at a considerable distance; that a vessel on the starboard "" was not tack, "as close as she could be to the wind to keep her well under command bound to port her helm (The Halcyon, 1 the high seas, or Lush, 100), and that the rule did not apply to a foreign ship on to a British ship coming into collision a foreign ship on the high seas with (The Dumfries, Swab. 64). The Zollverein, ib. 96).

(i) 17 & 18 Vict. c. 104, s. 297.

exer

(k) Sect. 295. This power was cised by the Commissioners of the Admiralty, by an order of the 24th February, 1858, Swab Rep. Appendix 6, which is now repealed by sect. 25 of the 25 & 26 Vict. c. 63, of the Merchant Shipping Act Amendment Act, 1862.

(2) 17 & 18 Vict c. 104, s. 295. But the neglect of the master to exhibit a light, whereby damage was caused to another

to the passing of steam and sailing vessels, or as to steam ships keeping on that side of a narrow channel which lies on the starboard side, or of the Admiralty rules for the exhibition of lights and use of fog signals, the owner of the vessel, by which such rule should have been infringed, should not be entitled to recover any recompence for any damage sustained by such vessel in such collision (a), unless it appeared to the court before which the cause was tried that the circumstances of the case were such as to justify a departure from the rule (b); and that in case any damage to person or property should be sustained in consequence of the non-observance of the said rules, the same should be deemed, in the absence of proof to the contrary, to have been occasioned by the wilful default of the master, or person in charge of the deck of such ship at the time, unless it were shown to the satisfaction of the court that the circumstances of the case made a departure from the rule necessary (c).

Although these provisions and the regulations issued under their authority by the Commissioners of the Admiralty are no longer in force, some notice of the cases decided upon the construction of them may yet be useful (d).

The owners of a steam vessel, which, proceeding at her full speed, had run down a sailing vessel, were held responsible for the damage; the steamer not having kept a good look-out, and the sailing vessel having exhibited a light as soon as there was reason to believe it was required; and, in this case, the law relating to the exhibition of lights by sailing vessels was stated to be as follows:-" Under common circumstances they need not show a light; but when there is a risk of a collision, as it is the duty of a steamer to steer clear of a sailing vessel, it is reasonable that the latter should give notice of her position" (e).

A barge going down the river saw the red light of a steamer on her port bow, and took no steps; shortly after the steamer's green light opened, showing that the steamer had starboarded her helm, and was coming direct to her; the master of the barge instantly showed a light and ported. The steamer continued her course, and ran, stem

ship, will not support an action against his owners. General Steam Navigation Company v. Morrison, 21 L. T. 76.

(a) Sect. 298. See the cases, note (g), ante, p. 606. See also Morrison v. General Steam Navigation Company, 8 Exch. 733; and the Panther, 1 E. & A. 31. The Juliana, Swab. 20.

(b) In the case of Dowell v. The General Steam Navigation Company, 3 W. R., Q. B. 492, the jury having found that there was fault on the part of the plaintiff in not having continued for a sufficient time the light required by the Admiralty regulations, made under the 14 & 15 Vict. c. 79, it was held, that he was not entitled to recover, and that this defence could be taken advantage of under a plea of not guilty. The statute is imperative, and the regulations must be literally complied with the peril

of the party; a light at the mast-head means at the very top of the standing mast; a light in the larboard mizen rigging is not a compliance with them. The Telegraph, 8 Moore, P. C. 167, and see the Aliwall, 1 E. &

A. 96, in which neither of two sailing vessels having observed the Admiralty regulations as to lights, and neither having pleaded that the collision was occasioned by such non-observance on the part of the other, the court nevertheless held that neither was entitled to recover.

(c) Sect. 299. This section does not exempt the owners of a ship from liability for damage occasioned by the master not observing the rule The Argo, Swab. 462. (d) See note (f), ante, p. 606.

(e) Wilkins v. Chapman, 4 Notes of Cases, 585. The Callao, Swab. 465.

The

on, into the barge amidships, in consequence of which she sank. course of the barge when she saw the red light was S.E. by S., that of the steamer to the northward of W. It was held that the vessels were not in such positions relatively as brought them within the Admiralty rule, which required, "that all sailing vessels, when under sail or being towed, approaching or being approached, by any other vessel, should be bound to show a bright light in such a position as can best be seen by such vessel or vessels, and in sufficient time to avoid collision "-and that the barge having shown a light as soon after the green light appeared as she could, had not violated the rule, and had not disentitled herself to recover (f).

A barge, close-hauled, on the starboard tack, steering S.E. by S., sighted, on her starboard beam, the red light of a steamer, and kept her course. The steamer was steering north and by west, and proceeding at the rate of six or seven knots an hour. A collision ensued, in which the steamer was held to blame for not keeping a good lookout, but the barque held not entitled to recover, the exhibition by her of a three-coloured lantern at her bowsprit end, not being a compliance with the Admiralty Regulations, which required the exhibition of "a bright light" (g).

The Civility, proceeding in a cause of collision, pleaded that she had thrown herself into stays to go about, and whilst in stays, with her head-yards aback and stern-way on, the Sea Nymph ran into her. The Sea Nymph alleged that the collision was occasioned by the Civility improperly putting herself in stays. It was held, that it was incumbent in a vessel proceeding on such an allegation, to prove, in the first instance, that she was in stays, and therefore helpless; and that the burden of proof then shifted on the other ship to show that the collision was an inevitable accident, or was occasioned by the vessel proceeding, being improperly put in stays (h).

The Robert Ingham alleged, in petition, that her collision with the Aurora was solely occasioned by the Aurora not exhibiting the regulation lights; and the court found that the collision was partly so occasioned, and partly by the Robert Ingham not keeping a due look-out; and held (the rule of port helm, imposed by 17 & 18 Vict. c. 104, s. 296, not applying) that the Robert Ingham was entitled to recover half damages by the Maritime Law; but the Aurora barred from recovering anything by section 298 of that Act (i).

In a cause of collision between a fishing cutter, with her trawl down, and a ship aware that she was crossing a fishing ground, and sailing at six and a half knots on a very dark night, the presumption was held to be against the latter (k).

A smack being hove-to, reefing her mainsail, the night clear, with moonlight, saw a steamer approaching, hailed her, but showed no light; the steamer did not see the smack until she was close upon

(f) The Ceres, Swab. 250.

(g) The Urania, Swab. 253.

(h) The Sea Nymph, 1 Lush. 23. The

Bothnia, 1 Lush. 52.

(i) The Aurora. The Robert Ingham,

1 Lush. 327.

(k) The Pepperell, Swab. 12.

her, when she ported her helm, and a collision ensued. It was held that the brightness of the night did not relieve the smack from the necessity of observing the Admiralty Regulations as to showing a light, and that, as there possibly would have been no collision if the light had been shown, her owners were precluded, by section 298 of 17 & 18 Vict. c. 104, from recovering any recompence for the damage she had sustained (i).

A galliot, running up channel, saw the green light of a steamer three or four points on her starboard bow, and starboarded her helm. The red light of the steamer then appeared, and, on sighting it, the galliot's helm was put to port; a collision ensued, the stem of the steamer coming in contact with the galliot's port midships. It was held that the galliot had done right in starboarding and right in porting, and that the mode of the collision showed that the steamer had either starboarded or ported too late, or not ported at all (k).

A barque on port tack, with wind free, at night, saw three or four miles off the green light of a steamer broad on her starboard bow, and showed a light, but did not alter her course until the steamer was close upon her, when her helm was put to starboard to ease an inevitable collision. It was held that in so doing she was free from blame, for the rule, port-helm, to pass on port-side, is applicable only when ships are approaching each other at such a distance that, if they continue their course, they will pass so near as to involve collision, which, in this case, would not have occurred, if the steamer, which was going ten knots an hour, had kept a good look-out (1).

These cases, with those previously cited, will suffice to illustrate the manner in which the rules of the sea, as ascertained and modified by Acts of Parliament and Regulations promulgated under their authority, have been recognised and applied in the Court of Admiralty (m).

(i) The City of London, Swab. 245-300. rine of Dover, 2 Hagg. 145. The Ligo, 2 (k) The Sylph, Swab, 233.

Hagg. 356. The Shannon, 2 Hagg. 173. The Shannon and the Placidia, 7 Swab. 380.

5. Provisions of the Merchant Shipping Act Amendment Act, 1862.

The sections of the Merchant Shipping Act, 1854, relating to collision (n) were repealed by the Merchant Shipping Act Amendment Act 1862 (0), and the provisions set forth in a schedule (p) to it, which were substituted for them, have since been embodied, with verbal amendments in regulations issued by virtue of it, and of an Order in Council, of the 9th of January, 1863, together with explanatory diagrams and a French translation, under the authority of the French Government. It will be seen, on reference to these regulations (q), that in pursuance of sections 57 and 58 of the latter Act, they are to apply to all ships, whatever their nationality, within the limits of British jurisdiction (r); and to British and French ships, whether within British jurisdiction or not, and with the acquiescence of the governments of many other countries and places, to ships belonging to those countries and places, whether within British jurisdiction or not.

Her Majesty is empowered to apply these regulations to the ships of any foreign country when beyond the limits of British jurisdiction, with the consent of the government of such country, and whenever an Order in Council shall be issued under this Act for that purpose, such ship shall, in all cases arising in any British Court, be decreed to be subject to such regulations, and be treated as if they were British ships (s).

It is expressly provided by these rules that, in obeying and construing them, due regard must be had to all dangers of navigation, and to any special circumstances, rendering a departure from them necessary, in order to avoid immediate danger (t), that nothing in them shall exonerate any ship, or the owner, or master, or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper look-out, or of any neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case (u): that all owners and masters of ships shall be bound to take notice of them (x), and to carry and

(n) Ss. 295 to 299.

(o) 25 & 26 Vict. c. 63, Schedule A. (post, Appendix).

(p) Schedule C. (9) Appendix.

(r) The earlier regulations as to navigation lights and signals were held by the Court of Admiralty not to apply to foreign ships on the high seas, nor to British vessels coming into collision with them. The Dumfries, 1 Swab. 63. S. C. on appeal, Thomson v. From, ibid. 125; 10 Moore. P. C. 461. The Zollverein, 1 Swab. 96. The Saxonia and the Eclipse, 1 Lush. 410. The Wild Ranger, 32 L. J., P. M. & A. 49. (s) 25 & 26 Vict. c. 63, s. 62.

(t) Art. 19.

(u) Art. 20.

(x) See Valentine v. Cleugh, 8 Moore, P. C. C. 367. Morgan v. Sim, 11 Moore, P. C. C. 307. Churchward v. Palmer, 10 Moore, P. C. C. 472. The General Steam Navigation Company v. Morrison, 13 C. B. 581. The General Steam Navigation Company v. Mann, 14 C. B. 127. Morrison v. the General Steam Navigation Company, 8 Ex. 733, cases which, though decided on Admiralty Regulations, which have been superseded, may be useful in the construction or application of those now in force. See note (ƒ), ante, p. 606.