A collision may be caused

though inevitable for some time before it occurs.

instances. In The Europa (f) Dr. Lushington states the sense in which he uses it. Inevitable accident, he says, is "where one vessel doing a lawful act without any intention of harm, and using proper precautions, unfortunately happens to run into another vessel." Again, "to constitute inevitable accident it is necessary that the occurrence should have taken place in such a manner as not to have been capable of being prevented by ordinary skill and ordinary prudence. We are not to expect extraordinary skill, or extraordinary diligence, but that degree of skill and that degree of diligence which is generally to be found in persons who discharge their duty" (g). More recently the Privy Council, adopting the language of Dr. Lushington, defined inevitable accident to be "that which a party charged with an offence could not possibly prevent by the exercise of ordinary care, caution, and maritime skill" (gg).

From the above considerations it is evident that to by negligence sustain the plea of "inevitable accident," it is not enough to show merely that the collision was inevitable at the moment of, or even for some moments before, its occurrence (). The weight of a ship and her momentum is so great that her rudder, and even her engines (in the case of a steamship) are frequently powerless to avert a collision for some moments before the ships come together. It is not enough for a ship to show that, as soon as the necessity for taking measures to avoid collision were perceived, all that could be done was done. The question remains whether precautions should not have been taken earlier.

(f) 14 Jur. 627, 629.

The Thomas Powell and The Cuba, 2 Mer. Law Cas. O. S. 344. See also The Plato and The Perseverance, Holt, 262; and The Maybey and The Cooper, 14 Wall. 204, 215, for a similar statement by the Supreme Court of the United States.

(gg) Per Sir J. Colville, The Marpesia, L. R. 4 P. C. 212, 220, citing from The Virgil, 2 W. Rob. 201. See also The Lochibo, 3 W. Rob. 310, 318.

(h) See The Uhla, 3 Mar. Law Cas. O. S. 148.

When two ships are shown to have been in a position in which a collision was inevitable, the question is, by whose fault, if there was fault, did the vessels get into such a position? (i) Thus if a vessel is proceeding at too great a rate of speed she cannot be heard to allege "inevitable accident" (k).

In consequence of the use of the phrase "inevitable accident" in the sense above mentioned, pleaders frequently allege, unnecessarily, that the collision was an "inevitable accident." Such a plea is of doubtful policy; for it is seldom that a collision was from the first inevitable in fact; and the allegation, being contrary to the fact, cannot be proved and is apt to mislead.

The plea has, however, so often been raised and sustained, that it will be convenient here to collect some of the cases in which collisions have been held to be "inevitable accidents." It must, however, be here pointed out, once for all, that the question before the Court in all these cases was, not whether the collision was in fact inevitable, but whether it could have been avoided by ordinary care and skill.

evitable

Where a collision is the result of inevitable accident the Burden of burden of proving that it was so does not in the first in- proving instance attach to the ship alleging it. But where a primâ accident. facie case of negligence is made out, then it lies on the ship alleging inevitable accident to prove it (7).

It seems that a vessel in default for not having lights, Vessel inor for not complying with the Regulations, cannot, at least fringing the Regulations where such non-compliance by possibility might have cannot plead contributed to the collision, successfully plead inevitable accident. accident (m). But such a defence may be good where the

(i) See The Independence, Maddox v. Fisher, 14 Moo. P. C. C. 103, 109; The Despatch, ibid. 83; The Pennsyl vania, 3 Mar. Law Cas. O. S. 477; The America, 2 Otto, 432.

(k) See per Dr. Lushington, The

Juliet Erskine, 6 Not. of Cas. 633.

(1) The Bolina, 3 Not. of Cas. 208; The Marpesia, L. R. 4 P. C. 212; and see infra, p. 30.

(m) 36 & 37 Vict. c. 85, s. 17; see infra, p. 41, seq.

inevitable

Collision inevitable so far as concerns

circumstances of the case made a departure from the Regulations necessary, or where her inability to take the proper measures was caused by no fault of her own (n).

A collision may be an inevitable accident so far as the ship sued is concerned, although it was caused by fault the ship sued. elsewhere; as in the case of a ship which is thrown against another by the swell of a passing steamship, or by a third ship coming foul of her (0).

Disabled ship.

Instances of inevitable accident.

Where a ship is unable to take the proper measures to avoid a collision owing to her being disabled, or for some reason for which she is not responsible, it is the duty of the other ship to avoid her if she can. But a collision occurring in consequence of her disabled state will be held to be an inevitable accident, if the other vessel was ignorant of it, and was not in fault for not being aware of it, or for not keeping out of the way (p). The Aimo, close-hauled on the starboard tack, saw the red light of The Amelia, a vessel close-hauled on the port tack, a little on her port bow. The Aimo kept her course. The Amelia, having lost her head sails in a previous collision, was unable to bear up, and a collision occurred. It was held to be an inevitable accident (2).

It is sometimes difficult to draw the line between negligence and inevitable accident. Negligence, and the circumstances under which it will be inferred, we have already considered. It may be useful here to collect some of the cases in which the courts have held that the collisions occurred without fault in either ship, and that they were the result of inevitable accident.

A steamer rounding-to in the Thames on a dark night against a strong flood tide under a starboard helm, with

(n) See infra, pp. 50, 53.

(o) See 1 Parsons on Ship. (ed. 1869), 533; The Sisters, 1 P. D. 117; The Hibernia, 4 Jur. N. S. 1244.

(p) The John Buddle, 5 Not. of

Cas. 387.

(2) The Aimo and The Amelia, 2 Asp. Mar. Law Cas. 96; and see The Venus, 1 Pritch. Ad. Dig. 129. As to a vessel disabled by her own fault, see infra, p. 25.

her head to the southward, was seen by a brig coming down. Notwithstanding that all that could be done was done by both vessels, a collision occurred. It was held to be a case of inevitable accident. The Court said that if the steamer had put her helm to starboard with a view to bring up after seeing the brig she would have been to blame ().

A ship, which had made fast by order of the port authority to a private buoy, was held not to be in fault for a collision caused by the parting of the band round the buoy (s); and a collision caused by the parting of the band was held to be an inevitable accident.

In the absence of evidence of negligence on the part of the crew, the jamming of the cable round the windlass, when the anchor was let go, was held to be an inevitable accident (t).

The parting of a cable in a gale of wind (u), and of moorings in calm weather (x), has been held to be an inevitable accident. But if there is negligence in not. letting go an anchor, or in not having an anchor ready to let go when the vessel is adrift, she cannot sustain the defence of inevitable accident (y).

Where a collision occurred in consequence of the breaking of part of the steering gear, there being a latent defect in the metal, it was held to be an inevitable accident (z). But if the gear is manifestly insufficient or weak, the defence of inevitable accident cannot be sustained (a).

Where a ship, A., at anchor in the Thames, was run into by another, B., and was, without fault on her own part,

(r) The Shannon, 1 W. Rob. 463. (s) The William Lindsay, L. R. 5 P. C. 338.

(t) The William Lindsay, supra; The Peerless, Lush. 30.

(u) The London, 1 Mar. Law Cas. O. S. 398.

(x) The Ambassador, Ad. Ct., Feb. 12th, 1875, cited in The Pladda, 2 P. D. 34, 37.

(y) The Pladda, 2 P. D. 34; The Kepler, ibid. 40. As to such a plea by a ship which has given another a foul berth, see The Secret, 26 L. T. N. S. 670.

(2) The Virgo, 3 Asp. Mar. Law Cas. 285.

(a) The M. M. Caleb, 10 Blatchf.

467.

driven by B. against a third ship, C., it was held that, so far as A. was concerned, the collision between her and C. was an inevitable accident (b).

A ship which had been ashore on a sand, was driving over it, and came into collision with another brought up in deep water to leeward of the sand. To have let go her anchor before she was clear of the sand would have been dangerous to herself, and without letting go while on the sand she could not keep clear of the ship at anchor. A collision which followed was held to be inevitable (c).

A dumb barge in the Thames, driving with the tide, came into collision with a steamer going up against the ebb at the rate of two knots. There was evidence that the barge could not have been seen sooner than she was seen. In the absence of evidence of negligence on the part of the steamer, the collision was held to be an inevitable accident (d).

Where two ships, by no fault of their own, suddenly find themselves in a position in which a collision is imminent, and one of them omits to execute a manœuvre which possibly might have averted the collision, she will not necessarily be held in fault for not having taken the measure suggested. Where two large sailing-ships, one in the act of going about, and the other going free, sighted each other in a dense fog at a distance of less than 300 yards, and a collision occurred in less than a minute, it was held that the ship in stays was not in fault for not having hauled aft her head sheets to assist her helm, although if she had done so the collision might have been averted. The collision was held to be a case of inevitable accident (e).

In The Resolution (ƒ) Sir J. Marriott held that a collision