Burden of by ordinary care could have passed clear will be held in fault for a collision with her (h). It would seem that a vessel being launched and going into collision with another at anchor in the wake of the launching ways must be in fault. But in The Cachapool (1), where the ship at anchor had obstinately refused to be towed out of the way, she was held to be solely to blame. Where a sailing ship was lost with all hands in a collision with a steamship, the steamship was held in fault upon the facts stated in her own pleadings, and with no further proof on the part of the sailing ship than the evidence of a person on board a third ship who had seen the sailing ship's lights burning some time before the collision (k). It is not enough to prove that the other ship omitted to do something that would have prevented the collision, or that she did something without which the collision would not have occurred. It must be proved that the omission or act complained of was negligent. If the plaintiff ship has herself infringed the Regulations, or has been guilty of negligence which might have contributed to the collision, the burden is on her to show that the collision was not caused entirely by her own fault. When one ship alleges want of lights or of a proper proving facts look out, or insufficient moorings, or any such negligence peculiarly in the knowledge on board the other as it is impossible or difficult for her to charged. prove by direct evidence, the burden is on the latter, as it is peculiarly in her power, to prove that her lights were sufficient, or that there was no such negligence (7). "The of the person (h) This seems to follow from the decision in Mayor, &c. of Colchester v. Brooke, 7 Q. B. 339. As to the right to bring up in a public navigable channel, see Anonymous Case, 1 Campb. 516, note. As to the liability for damages caused by an unlawful obstruction of a highway on land, see Harris v. Mobbs, 3 Ex. D. 268; Wilkins v. Day, 12 Q. B. D. 110. (i) 7 P. D. 217. (k) The Aleppo, 35 L. J. Ad. 9. (1) The Swanland, 2 Sp. E. & A. 107; The John Harley and The William Tell, 13 L. T. Ñ. S. 413. burden of proof should under all circumstances be thrown on those who have a peculiar knowledge of the subject and peculiar means of proving it which do not belong to the other party" (m). where the not herself in collision. A ship that negligently compels another to alter her Ship neglicourse, and to go into collision with a third ship, or to put ing loss to gently causherself ashore, and thereby suffer damage, is liable, both another at law and in Admiralty, to the injured ship, and also to wrongdoer is the third ship, if she suffers loss; and not the less so because she is not herself in collision (n). Many of the innumerable acts and omissions which cause Specific acts collision have been the subject of decision in the courts of negligence. with reference to the question of negligence. Infringement of the Regulations for preventing collisions at sea, carelessness, want of look out, and disregard of the practice of seamen, and of the ordinary rules of seamanship, are amongst the most frequent instances of negligence causing collision. The cases dealing with specific acts of negligence, both infringement of the Regulations for preventing collisions at sea, and neglect of the ordinary practice of seamen, are considered in a subsequent Chapter (Chapter XIV.); the cases as to the ordinary practice of seamen being collected under Art. 24, which expressly refers to the necessity of observing such rules of seamanship. (m) The Swanland, 2 Sp. A. & E. 107, 109. (n) The Sisters, 1 P. D. 117; The Industrie, L. R. 3 A. & E. 303; CHAPTER II. STATUTORY PRESUMPTION OF FAULT. IT has been already stated that under certain circumstances an arbitrary rule of law requires the courts to hold a ship in fault for collision, although no negligence on her part contributing to the collision is proved. And it will be seen below that this rule applies, not only where negligence is not proved, but where it did not exist, and where those in charge of the ship were, as regards negligence, absolutely free from blame. The circumstances which bring this stringent, not to say harsh, enactment into operation, are as follows:-First, where, on the part of the ship sued, there has been an infringement of any of the Statutory Regulations for Preventing Collisions at Sea, which might by possibility have contributed to the collision; and, secondly, where the ship sued did not stand by to assist the other with which she had been in collision. The decisions upon the first of these enactments are so much more numerous and important than those illustrating the second, that it will be convenient to reverse the order in which they occur in the statute (36 & 37 Vict. c. 85, ss. 16, 17), and to consider the section of the Act (sect. 17) relating to infringement of the Regulations before that (sect. 16) which deals with failure to stand by. By 36 & 37 Vict. c. 85, s. 17, it is enacted as follows: "If, in any case of collision, it is proved to the Court before which the case is tried that any of the Regulations for preventing collision contained in or made under the Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such Regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the Regulation necessary." History of legislation upon the subject of a of statutory infringement To understand the effect of this enactment it will be necessary to refer to previous legislation upon the subject. By 14 & 15 Vict. c. 79, s. 28, and afterwards by 17 & 18 Vict. c. 104, s. 298, it was enacted, in effect, that if collision was occasioned by the non-observance of any of rules of navigation. the rules as to lights or navigation contained in or made under those Acts, the owner of the ship by which the rule was infringed should recover no damages for injury to his ship, unless it was proved that the departure from the rule was necessary (a). The effect of these enactments was to abrogate the rule of the Admiralty, that a wrong-doing vessel shall recover half her loss if the other ship is also in fault, in the case of a vessel which had unnecessarily infringed the statutory rules. In each case the question had to be tried whether the infringement was negligence contributing to the collision. In Tuff v. Warman (b) and other cases (c) it was held, upon the construction of these (a) The sections ran as follows: -14 & 15 Vict. c. 79, s. 28: "If in any case of collision between two or more vessels it appear that such collision was occasioned by the non-observance of either of the foregoing rules with respect to the passing of steamers, or " (the rules as to ships' lights made under the powers of the Act) "the owner of the vessel by which any such rule has been infringed, shall not be entitled to recover any recompense whatever for any damage sustained by such vessel in such collision, unless it appears to the Court before which the case is tried that the circumstances of the case were such as to justify a departure from the rule," &c. The subsequent Act, 17 & 18 Vict. c. 104, &. 298, was as follows:-"If in any case of collision it appears to the ship by which such rule has (b) 2 C. B. N. S. 740; 5 C. B. N. S. 573. (c) Morrison v. General Steam Navigation Co., 8 Ex. 733; The Vivid, 10 Moo. P. C. C. 472; The Aliwal, 1 Sp. 96; The Telegraph, ib. 427. enactments, that though the plaintiff had infringed the Regulations, and by his negligence had brought the ships into danger, yet if the defendant could by reasonable care have avoided the collision, the plaintiff could recover. Where one ship, A., was in fault for not keeping a look out, and the other, B., was in fault for infringing the statutory rule, it was held that A. could recover half her loss, and that B. could recover nothing (d). But it was held that sect. 298 did not prevent the owner of cargo on board a ship infringing the statutory rule from recovering half his loss (e). The effect of these enactments, so far as they abrogated the Admiralty rule of division of loss, was probably not apprehended by the legislature (ƒ). The next alteration in the law was made by 25 & 26 Vict. c. 63, s. 29 (g). The effect of this enactment was to restore the Admiralty rule as to the division of damages where both ships are in fault, and a vessel guilty of an infringement of the Statutory Regulations was enabled to recover in the Admiralty Court (as she could previously to 14 & 15 Vict. c. 79) half her loss against a defendant vessel which was also in fault. The question whether a ship which had infringed a regulation applicable to the case was guilty of negligence contributing to the collision had still to be tried in every case (h). The application of the doctrine in Tuff v. Warman prevented the above statutes from having the effect desired be in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary." The wording of this section seems to have been suggested by a passage in the judgment of Cockburn, C. J., in Tuff v. Warman, ubi supra. (h) Under this Act the following cases were decided: The Fenham, L. R. 3 P. C. 212; The Bougainville, L. R. 5 P. C. 316; The Palestine, 13 W. R. 111; The Pyrus and The Smales, Holt, 40; The Pennsylvania, infra, p. 64. |