the collision to have occurred without fault in either ship, the sued is entitled to her costs both of the appeal and in the Court below. It has been so held where there was no counterclaim alleging negligence in the plaintiff's ship (p). Where in the Admiralty Court one ship was held in fault, and upon appeal to the Privy Council both ships were held in fault, the order of the Privy Council was that each party should bear his costs both of the appeal and in the Court below (g). The Court of Appeal does not always follow the practice of the Privy Council as to costs (r). The rule, that no costs of the appeal or in the Court below will be given where both ships are in fault, applies where the fault of one of the ships is the fault of her compulsory pilot (8). Where both ships are held in fault in the Court below, and upon the appeal by one of the parties the other party applies to have the judgment varied or reversed, and the Court of Appeal affirms the decision of the Court below, the appellant will be ordered to pay the costs of the appeal, except so far as they have been augmented by the notice given by the respondent (†). Where in the Court below both ships are held in fault, and one only of them appeals, and the appeal is dismissed, the appellant will be ordered to pay the costs of the appeal (u). Where, upon a claim and counter-claim, ship A. is held solely in fault, and upon appeal the decision is reversed, (p) The Monkseaton, 14 P. D. 51; see also The Marpesia, L. R. 4 P. C. 212; The City of Cambridge, 3 Asp. M. L. C. 307; The Corinna, ibid. (9) The Agra, and The Elizabeth Jenkins, L. R. 1 P. C. 501. (r) The City of Berlin, 2 P. D. 187; The Monkseaton, 14 P. D. 51. (s) The Rigborgs Minde, 8 P. D. 132. (t) The Lauretta, 4 P. D. 25. (u) The Milanese, 4 Asp. Mar. Law Cas. 438; and see per Brett, L. J., in The Hector, 8 P. D. 218. and ship B. held solely in fault, the appellant will get his costs both of the appeal and in the Court below (x). A plaintiff, or a defendant having a counter-claim, who Security for is resident out of the jurisdiction elsewhere than in Scot- costs. land or Ireland (y), may be required to give security for costs (); but he will not be required to give security for damages that may be awarded against him (a). action for The general rule as to the costs of an action for limita- Costs of tion of liability is that they shall be borne by the plaintiff. limitation of But if the defendant raises issues which are decided liability. against him, as where he disputes the right of the plaintiff on the ground that the loss was by and with the actual fault and privity of the owners (b), or was not caused by improper navigation (c), or that there is a separate liability in respect of each of two collisions (d), he will be compelled to pay the extra costs occasioned to the plaintiff by such issues. Nor will the plaintiff in the limitation action have to pay the costs of litigation between the claimants upon the fund representing the amount of their statutory liability as to their respective rights to share in the fund (e). action Costs are now in all cases in the discretion (ƒ) of the Costs of Court (g). The provisions of the County Courts Admi- for amount ralty Jurisdiction Act, 1868 (31 & 32 Vict. c. 71), ss. 3, 9, below County as to costs, are no longer in force, and a plaintiff who (x) The Glannibanta, 1 P. D. 283 (1876). See further, as to costs on appeal, The Saxonia, and The Eclipse, Lush. 410; The Telegraph, 1 Sp. E. & A. 427; The Florence Nightingale, Br. & L. 29; The Vister, 1 Moo. P. C. C. N. S. 31; The Dumfries, Sw. 125; The North American, Sw. 358. (y) See 31 & 32 Vict. c. 56; 36 & 37 Vict. c. 66, s. 76; The Pelaw, cited Williams and Bruce, Ad. Pr. 2nd ed. 482, note (x). (2) The Constantine, 4 P. D. 156; The Newbattle, 10 P. D. 33; The Julia Fisher, 2 P. D. 115. (a) The Mary, or Alexandra, L. R. M. 1 A. & E. 335. V. (b) African Steamship Co. (c) The Warkworth, 9 P. D. 20. (e) African Steamship Co. V. (f) For the limits of this discretion, see Re Mills' Estate, 34 Ch. D. 24. (9) Rules of Sup. Court, 1883, Ord. LXV. r. 1. Costs of appeal from brings his action in the Supreme Court may receive his costs, though the amount of his damages are less than the County Court limit (h); but in practice, he will not get them unless there are special circumstances justifying his proceeding in the High Court (¿). Upon appeal from a County Court, 31 & 32 Vict. c. 71, County Court. 8. 30, provides that an unsuccessful appellant shall pay the costs of the appeal, unless the Appellate Court otherwise directs. This enactment, if not repealed, is subject to the discretion vested in Divisional Courts by Ord. XLV. r. 1. Costs of excessive bail. Costs upon higher scale. Costs of pay ing freight into Court. Costs: expense of sureties. Costs: expense of retaining seamen witnesses. If a plaintiff arrests the defendant ship, and requires bail for an exorbitant sum, he will be ordered to pay all the costs and expenses to which the defendants have been put in finding bail. Such an order was made in a salvage action, where 3,0007. was claimed, and bail for that sum required, and only 4507. was awarded (). As to the principles upon which costs upon the higher scale will be awarded, see Ord. LXV. rr. 9, 10 (7). The owner of cargo arrested for freight, upon paying into Court the amount of freight, may deduct the cost of paying it in (m). Money paid to sureties on a bail bond in consideration of their suretyship will not be allowed as costs (n). The expense of retaining seamen witnesses until the trial is allowed as costs (o). (h) Garnett v. Bradley, L. R. 3 (i) The Herald, 63 L. T. N. S. (k) The George Gordon, 9 P. D. 46; and see The Earl Grey, 1 Sp. 180; The Eléonore, Br. & L. 185. As to moderation of bail, see supra, p. 87. (1) See also The Horace, 9 P. D. 87; The Raisby, 5 Asp. M. C. 473 (both salvage cases). As to an appeal upon the question of higher or lower scale, see Re Terrell, 22 Ch. D. 473. As to the scale of counsel's fees, see The City of Lucknow, 5 Asp. M. C. 340. (m) The Leo, Lush. 414; see Ord. XXIX. r. 4. (n) The Collingrove, 10 P. D. 158; The Numida, ibid. (0) The Karla, Br. & L. 367. CHAPTER XIV. THE REGULATIONS FOR PREVENTING COLLISIONS AT SEA. to the rule of the road. MANY years before the rule of the road at sea was regu- Legislation as lated by Act of Parliament, the practice of seamen had established rules to enable approaching ships to keep clear of each other. These rules, which are the foundation of those now in force, were well established by custom, and formed part of the general maritime law administered by the Admiralty Court (a). In the year 1840 a rule (b) as (a) A rule of the road for ships on opposite tacks existed at least as early as the latter part of the last century. In Admiralty Regulations of that date, to be observed by ships under convoy, there appears a rule to the effect that a ship on the larboard tack shall bear up for another on the starboard tack. But it is doubtful whether this rule existed a century earlier. In the Duke of York's Sailing and Fighting Instructions, attributed to the year 1670, but probably of a later date, occurs the following article:-" Where two ships of the same rank are sailing on the same tack, or on contrary tacks, and there is a necessity for one of them to bear up to the other, he that can with the most convenience bear up is to do it; but if it be equally convenient to both of them, then the younger captain shall bear up for the elder." If the rule as to the ship on the port tack giving way had been generally recognized when this regulation was framed, it would probably have been mentioned. In several collision cases decided by the Admiralty Court during the 17th and 18th centuries, the writer has found no trace of the rule in the pleadings, decrees, or sentences. See Marsden's Admiralty Cases, p. 333, as to the origin of the port tack rule. In The Resolution (ibid. p. 332) (1789), the rule is said to have been framed by Lord Howe seven or eight years previously. The rule that a ship with the wind free must give way to a ship close hauled appears to have been first recognized by the Courts in Lord Erskine's time, "in a case tried at Guildhall before Mr. Justice Buller." See a letter addressed by Lord Erskine (an old sailor) to Lord Stowell, dated 7th Dec. 1821, respecting Lord Stowell's judgment (b) This rule-to the effect that steamships shall pass on the starboard hand of each other-will be found 1 W. Rob. 488. As to its construction, see The Friends, 1 W. Rob. 484; 4 Moo. P. C. C. 314; The Unity, Sw. 101; The Duke of Sussex, 1 W. Rob. 274; The Hope, ib. 154; The Immaganda Sara Clasina, 8 Moo. P. C. C. 85. Enactment of the existing to the side on which steamships were to pass each other was promulgated by the London Trinity House, and enforced by the Admiralty Court. In 1846 the subject was first dealt with by the Legislature (c), and since that year the law has been altered or added to by three successive Acts of Parliament (d). The only Act now in force is 25 & 26 Vict. c. 63. By that Act (s. 25), power is given to her Majesty, Regulations. upon the joint recommendation of the Admiralty and the Board of Trade, by Order in Council, to make Regulations for Preventing Collisions. By s. 58, such Regulations are to apply to British ships everywhere, and to foreign ships when within British jurisdiction. By s. 59, the Queen is enabled with the consent of the foreign government by Order in Council to apply the Regulations to foreign ships when not within British jurisdiction. Under these powers, the Regulations of 1884 have been made and applied to the ships of Great Britain, France, Greece, Portugal, Italy, Sweden, Norway, Brazil, Turkey, Chili, and Denmark (e). in The Dundee, reported in the 1873. In the year 1828, the rule of the road at sea was thus stated in evidence by a competent witness :"If a vessel is going close-hauled to the wind, and another meeting her is going free, the rule at sea is for the vessel meeting her to go to leeward; and the reason of it is that otherwise the vessel going to windward would lose her position, and could not get in again without another tack, which would be an inconvenience to her, and not to the vessel going free." By the Court, the rule was thus stated:"The ship which has the wind at large may go either to leeward or to windward; but, as a general rule, she ought to expect that the (d) 14 & 15 Vict. c. 79; 17 & 18 Vict. c. 104; Admiralty Order of 26th Oct. 1858, see Appendix, Swabey's Rep. ; 25 & 26 Vict. c. 63. These Acts and Orders will be found in the Appendix below, pp. 531, seq. (e) By Orders in Council of the following dates:-14th Aug. 1879; 2nd Feb. 1884; 11th Aug. 1884; 9th Oct. 1884; 30th Dec. 1884; 19th May, 1885 (Sweden, Norway, and Brazil); 9th July, 1885 (Turkey); 17th Sep. 1885 (Chili); 17th Nov. 1888 (Denmark). |