1856. April 17. non-com barred, unless It is admitted that the regulation of the Admiralty has not been complied with. The regulation is, "that all sailing vessels at anchor in roadsteads or fairways shall be bound to exhibit, Admiralty regulation between sunset and sunrise, a constant bright light at the mast- not complied head, except within harbours or other places where regulations with. for other lights for ships are legally established. The lantern to be used when at anchor, both by steam-vessels and sailingvessels, is to be so constructed as to show a clear good light all round the horizon." Now that condition has not been complied with and then arises the point which was so much discussed in the case of the Telegraph, namely, what is the effect of non-com- What is the pliance with the Admiralty directions. If nothing had been said effect of such in the Act of Parliament except simply that such lights should be pliance? hoisted according to the directions of the Admiralty, it would have been impossible for any man to maintain a suit here who had disregarded compliance with them; but the consequence would have been this, that if a vessel had neglected to hoist a light on a bright moonlight night, and another vessel had run her down, she could not have recovered--therefore the legislature guarded against that by another section in the Act of Parliament. The legislature in effect has said this-you shall not be estopped Plaintiff not from bringing your action merely in consequence of a breach of collision was the rules of the Admiralty, but if it be shown that the collision occasioned thereby. was occasioned by the non-observance of the rule, then you shall be estopped. Therefore the question might arise, was the collision occasioned by the non-observance of the rule? In the Case of the Telegraph. case of the Telegraph (a), when I addressed the Elder Brethren I took care to point out what I considered the true meaning of the statute, and it appears that the Judicial Committee entirely concurred in the view I took on that point. Sir John Patteson, who delivered the judgment in that case, said—“ It is perfectly clear, therefore, that if the regulations which are put forth by the Commissioners of the Admiralty are not literally complied with, and any collision takes place and damage occurs which is attributable to a departure from the regulations, and not justifiable under the circumstances, the party who so departed from the regulations cannot recover." Then referring to the address I had made to the Elder Brethren upon that occasion, he said: "It is most fairly and properly put in the address by the learned Judge to the Trinity Masters in these words, whether you are of opinion that the omitting to hoist a light at the masthead was the occasion of this collision? The learned Judge❞—that is, myself—"goes on to say the solution (a) 8 Moore, P. C. 167. 1856. April 17. of this question must depend on considerations which particularly belong to you as relates to this particular case, because you are best capable of judging whether this vessel, the Telegraph, proceeding from the port of Belfast, would be able to descry a vessel with the same facility with a light hoisted in the larboard mizen-rigging as she would if it had been at the masthead. If you are of opinion she would not, then I cannot help thinking that this collision might have been avoided by hoisting a light at the masthead; and it is fairly to be inferred that the collision was occasioned in consequence of its not having been so hoisted." Now I think I put it pretty strongly to the Trinity Masters on that occasion; and Sir John Patteson says “We think the inference is very fair, and very right, and very proper, because there being express regulations of the Admiralty that the light shall be hoisted at the masthead, if parties without justifiable authority depart from the regulations, and put a light elsewhere, it ought to be at their own risk." Then he goes on-" Now, as admitted in argument, it is not departure from the regulations which would preclude a vessel from recovering altogether, unless that was the occasion of the collision. It might be a light night, so that a vessel could be seen without a light, or there might be misconduct on the part of the other vessel: and in these, and a hundred other cases that might be put, the party would be entitled to recover, although the regulations had not been complied with. Clearly the collision must be traced to a departure from the regulations." I think I cannot better discharge my duty to you than by putting the question exactly in the same way as I put it on a former occasion, and exactly in conformity with the judgment delivered Was the light by Sir John Patteson, that is,-if you are of opinion that the light being placed, as I have already stated, under the boom of the foresail, about four feet on the starboard side of the foremast, and about twenty feet above the bulwarks, was less visible than if it had been hoisted at the masthead, then it is impossible that these parties can recover;-but if you should be of opinion, on the contrary, that, though the regulations of the Admiralty have been departed from, it was from the place, where it was suspended, just as visible to any vessel approaching from the port of Dover, then the law says, that if the collision arose from the fault of the other vessel, the brigantine shall not be estopped from recovering by reason of having neglected to comply with the Admiralty regulations. I now come to consider the conduct of the steamer. She was in the Government employ, and was under a contract to steam thirteen knots an hour. I have had occasion to say over and over again, that it as visible as if placed, in conformity with Admiralty regulations, at the mast head? Steamer under 1856. April 17. on board the does not matter what the contract is with the Government-that does not take away the responsibility of the parties. That was the doctrine laid down by Lord Ellenborough. Despite of the ingenious argument of Dr. Robertson, it appears from the evidence that the Vivid was proceeding at the rate of twelve knots an hour, the night being intensely dark, and was going through a fairway where vessels were accustomed to anchor. The next point is, are you of opinion, under these circumstances, Was there a that this collision might have been avoided, and the light seen if good look out there had been a good look-out? Captain Watson was on the steamer? bridge, and it appears that there were two persons on the look-out -one stationed on the starboard, and the other on the larboard bow; and it is also said, that there were a number of passengers who were likely to have seen the vessel. Taking all these circumstances into consideration, you will have to determine the question which I have put to you. Was the collision occasioned by the absence of a light altogether, or by showing a defective light, on board the Henry? Or, was it occasioned by the darkness of the night, or the rate of speed at which the steamer was going, and the absence of a good look-out? DR. LUSHINGTON, after conferring with the Elder Brethren, said:-The gentlemen, with whose assistance I have been Light as visible as if placed favoured, are of opinion that the brigantine had a suitable light at masthead. hoisted, and was not in an improper anchorage; that the exhibition of the light on board the brigantine, as proved by the evidence, was as visible to the steamer so approaching her as if it had been hoisted at the masthead; that the collision was not occasioned by the departure from the rule of the Admiralty; and that no blame attaches to her. They are of opinion that the blame of this collision attaches to the steamer, and I think so too (a). Jenner, proctor for the Henry. Glennie for the Vivid. (a) This judgment was, on the 7th of July following, affirmed on appeal to the Judicial Committee of the Privy Council, but without costs to either Collision not 1856. April 19. THE BORUSSIA, G. M. CHRISTIANSEN, Master. Towing Vessel at Night from Dock to Dock. Held, to be a want of due caution to move, by means of a steam-tug, a ship from one dock to another, at night-time. Under such circumstances, a pilot on board the ship being towed has no such charge or control over her movements as to exculpate the owners. THIS HIS was a proceeding for damage arising from collision, brought by the owners of the barque Therese, against the steamship Borussia, both foreign vessels. The Therese, of the burden of 430 tons English, laden with coal, came to an anchorage in Hull-roads on the 14th November, in last year, according to her own account, about 500 fathoms from the shore. On the evening of the 15th, about nine o'clock, she was lying at the same anchorage, with a flood tide flowing westward, her head to the east, the Victoria Dock-basin of Kingston-on-Hull bearing about N.E. She had a clear horn lanthorn suspended outside the main rigging on her port side, about twelve feet above the bulwark rail, with a composition candle in it burning brightly, and a glass lanthorn with two oil lamps in it suspended from the · peak of the mizen-gaff, and she pleaded that she kept a good look-out. The Borussia was towed by a tug from the Victoria Dock above mentioned, in order to be taken to the Humber Dock-basin, a short distance higher up the river, both docks being on the north bank. She was not herself under steam; she had a duly licensed Humber pilot on board, who was examined vivâ voce, and stated in his evidence that he did not, on such occasions, consider himself responsible for the movements of the ship over which he had no control, those on board the tug having the full management; for such a job as shifting from one dock to another he received five shillings; the tug towed the Borussia south from the Victoria Dock for about 200 or 300 yards, and as they were coming round to the westward the master and engineer of the tug suddenly saw a light ahead, distant about three ships'-lengths, and immediately called out to the Borussia, "Hard aport on board the steamer," and tried to pass to the northward of the ship on which the light appeared, but that immediately afterwards the Borussia struck the jib-boom of the Therese with her larboard side amidships, carrying away the jib-boom, swung round, and fell alongside the Therese's port side; the damage done was but trifling. Addams and Spinks appeared for the barque. Jenner and Deane for the steamer. The Court was assisted by Captains Redman and Drew. 1856. April 19. Was it proper Borussia at night, and in to move the thick weather? DR. LUSHINGTON, after stating the facts of the case to the Judgment. Trinity Masters, by whom he was assisted, said;—it was endeavoured, in the examination of the pilot, to elicit that the anchorage of the Therese had been shifted after she first took it up. But we cannot now go into that; it was not pleaded on behalf of the Borussia, and it is distinctly asserted on behalf of the Therese, that her anchorage was not shifted. As regards that, the only question for you will be whether the Therese, at the time of the collision, was in a safe and proper anchorage? As regards the Borussia, it will be a question whether it was expedient to move such a vessel by means of a steam-tug at night, in anything like thick weather? She was in charge of a pilot; but it is not pretended that his presence can excuse the master from his responsibility; the circumstances are quite different from those of a vessel in tow of a steam-tug in broad daylight, where the tug ought to obey the orders of the pilot. Did the collision arise from want of a sufficient look-out on board the tug, or from want of sufficient lights on board the Therese? It must be remembered that these are foreign ships in an English harbour: if the collision was occasioned from the lights on the Therese or was the colbeing so placed as not to be sufficiently visible to those on board sioned by the the tug and the Borussia, the Therese cannot recover; but their lights of the merely not being in accordance with the Admiralty regulations being properly would not hinder her from recovering. lision occa Therese not placed. to blame. After consulting, the Court was of opinion that it was exceed- Borussia solely ingly imprudent so to move the Borussia at night; that the lights on board the Therese were not properly placed, but that they did not, in fact, deceive those on board the tug or the Borussia, and that therefore the latter vessel was to blame for the collision. Coote, proctor for the Therese. Jenner for the Borussia. |