two separate lights, one placed on one side, and the other on the other side of the vessel. It is not enough, as was at one time supposed, to have a single three-coloured lamp hung at the bowsprit end, and so constructed as to cast a green light on the starboard side, a red light on the port side, and a white light when seen end-on (a). The lights must be so erected as to be fairly visible from on board other vessels (b). 2nd. The cases which bear upon the question of onus probandi, with reference to the carrying of lights, are the following: In every case of collision at night, if it is alleged in the pleadings that the collision was occasioned by the absence of a sufficient statutory light on board one of the colliding ships, the burden of proof that there were such lights rests with that vessel. "Beyond all doubt," said Dr. Lushington, in the case of the City of Carlisle, cited above, "the burden of proof is upon those who allege that they carried the lights. There is no doubt about it in law, nor is there a doubt about it in common sense; because, of course, those who are on board the vessel must be able to give the best evidence as to what was the state of things on board that vessel, and those who never saw it until they came into collision can give no evidence at all, except that they did not see it" (c). (a) The Mangerton, Swab. 124; The Urania, Swab. 255 (c) 8 Mitch. 943. Onus probcarrying of andi as to lights. Rests with vessel denying the absence of lights. Or with Further, if it is set up as a defence, on the part of a vessel which had not a light, that the absence of that light did not contribute to the collision, it rests with that vessel to establish that position by proof. Where there has been a breach of the rules, the prima facie presumption is that the collision was occasioned thereby; and the onus is cast on those who have been guilty of such breach of rebutting this presumption, and showing that the breach did not, in fact, occasion the ensuing damage (a). In the case of the Flavia Gioja, in 1858, a ship which had not a light when she should have had one, was held not thereby prevented from recovering collision damage, it being distinctly proved that the absence of the light in no way contributed to collision; the ship having, in fact, been distinctly seen from the other vessel at a distance sufficient, had proper measures been taken on board the latter vessel, to have prevented a collision. It was in argument pressed upon the Court, "with a pertinacity," said Dr. Lushington, "savouring of desperation," that the circumstance of not carrying a light should operate as an estoppel against any claim on the part of the Flavia Gioja; but this contention was not admitted (b). (a) The Palestine, 13 Weekly Rep. 111. (b) 3 Mitch. 757. See also, to the same effect, the cases of The Vivid, Swab. 89, and The Juliana, Swab. 22. The testing question is, Had the light been there, would the collision have occurred? (Swab. 22.) In the case of Morrison v. General Steam Navigation Company, it was laid down by the Court of Exchequer that the question in cases of collision must always be, whether the parties had contributed to the collision by their own carelessness; that no change had been effected in the law in this respect by the Admiralty Regulations, and consequently that, if it could be clearly established that a vessel having no light had been run into by another vessel from sheer carelessness and negligence in not keeping a good look-out, the injured party could recover. It would of course be other wise if the absence of the light had contributed to the collision (a). 66 It is 3rd. The following decisions may be classified under the head of excuses for not carrying a light The of the moon is no excuse. presence not to be said," said Dr. Lushington, "because it was a bright night that it was not necessary to obey the Act of Parliament." It would, of course, be necessary to show that the absence of the light was a cause conducing to the collision; and in the case referred to this was proved. It was stated in evidence that when the moon is shining at the back of a vessel's sails, she can be seen by the moonlight a great way off; but if the moon is shining in the front of her sails she can be seen Excuses for not carrying a light. The moon is no excuse. (a) 17 Jurist, 507. See also, to the same effect, The Panther, 17 Jurist, 1037; Dowell v. General Steam Navigation Company, 1 Jurist, N. S. 800. Difficulty of fixing lights, owing to a gale. When lights carried away by a sea, must at once be replaced. no distance; and that, under such circumstances, her hull would be seen before her sails (a). In the case of the Calla, it was pleaded that, owing to the heavy gale and a strong sea which was frequently breaking over the vessel, it was found to be impracticable to keep her green and red lights fixed as appointed by the Admiralty Regulation, but that they were kept lighted on deck and were exhibited on the approach of the other vessel. The learned Judge, in summing up to the Trinity Masters, said that the Calla, not having carried her coloured lights fixed in the ordinary manner required by the Admiralty Rules, was bound to make out a sufficient justification ; and that, if they were of opinion that no circumstances were proved sufficient to justify the nonobservance of the rule, and that the collision was in any degree occasioned by the lights not being exhibited as required, the Calla would be to blame for the collision. The Trinity Masters found that the Calla had not proved that it was impracticable to carry her coloured lights fixed, and that the collision was caused by her default in not exhibiting her light in proper time; and she was accordingly condemned in damages (b). A vessel whose regulation light had been carried away in tempestuous weather, was held in fault for a collision occasioned by the absence of such lights, (a) The City of London, Swab. 248; affirmed in P. C., Swab. 300. (b) The Calla, Swab. 465. See also, to the same effect, The Livingstone, Swab. 519. because the master had neglected to replace them, although he had an opportunity of doing so, as the vessel had been at anchor for more than a week at the Downs, and had communication with the shore (a). show a light. In another case, where the lamps had been dis- Must at least abled in severe weather, so that there were no regulation lights on board, a ship was condemned in damages for not having shown some kind of light upon the approach of the other vessel (b). above rule. A striking example of the strictness with which the Admiralty Court insists on the observance of the Statutory Regulations is furnished by the case of the George Arkle; where a ship, drifting help- Illustration of less, disabled, running out to sea after an accident, was pronounced in fault for not having the regulation lights set when a collision took place. Whilst at anchor in Winterton Roads, this vessel had been run into by the ship Charlemagne, had lost her cutwater and bowsprit; which, with the head gear, were hanging under her bows; and, having parted from both her anchors, was of necessity run out to sea to weather the gale which was blowing. Sails were hoisted, but they were immediately blown away, and the ship drove before the wind unmanageable, partly from want of the head-stays, and partly because of the wreck which was hanging under her bows. In this distressed condition, the crew appear to have forgotten to put up the regu (a) The Robert Ingram, 1 Lush. 327. |