But rules (as the Thames Rules) made under a local Act, which does not incorporate this provision, are not within its operation. The Harton (1884), 53 L. J. P. 45; 9 P. D. 44.

66

As to the operation of the enactment in case of a breach of one of the general regulations where there are also local rules, see Little v. Burns, The Owl and The Ariadne (1881), 9 Crt. of Sess. Cas. (4th series), 118; and the remarks of Barnes, J., in The Carlotta, [1899] P. at pp. 228, 229; and see s. 421, sub-s. (1). Any of the collision regulations" means any which was, in the circumstances, applicable. The Khedive, supra, 5 App. Cas. at p. 901; see also The Fanny M. Carvill (1875), 44 L. J. Adm. 341; 32 L. T. 646 (P. C.). And the onus of proving that the regulation was applicable to the case appears to be upon the plaintiffs or party making the charge. See per Lord Herschell in The Theodore H. Rand (1887), 12 App. Cas. 247, at p. 251; 56 L. J. P. 65. Moreover, it is not sufficient for them to establish that the regulation was in fact applicable; it is incumbent on them to prove that a competent seaman, exercising reasonable care, would have discovered it to be so. Ibid., and The Beryl (1884), 53 L. J. P. 75; 9 P. D. 137 (C. A.). See per Brett, M. R., 9 P. D. at p. 139, approved by Lord Herschell in The Theodore H. Rand. See also The Khedive, supra (per Lord Blackburn, 5 App. Cas. at p. 894); The Memnon (1889), 59 L. T. 289; 6 Asp. M. L. C. 317 (C. A.); 62 L. T. 84; 6 Asp. M. L. C. 488 (H. L.); The Emmy Haase (1884), 53 L. J. P. 43; 9 P. D. 81.

A neglect, in disregard of Arts. 27 and 29 of the Collision Regulations, to depart from any other of the collision regulations, is not a breach of a collision regulation within the meaning of this sub-section, and therefore does not give rise to the presumption of fault. The Sanspareil, 69 L. J. P. 127; [1900] P. 267 (C. A.).

appears

"If it

(g) "Have been infringed, &c."-The words of the Act of 1862 were, that such collision was occasioned by the non-observance of any regulation made, &c." The effect of the altered language, introduced by M. S. A. 1873, s. 17, and here re-enacted, is to raise a presumption of culpability against the ship guilty of such infringement, which is not to be rebutted by proof that the non-observance of the rule did not in fact contribute to the collision; but which may be met by proof that the infringement could not by any possibility have contributed to it. The Fanny M. Carvill (1875), supra (approved in The Duke of Buccleugh, [1891] A. C. 310; 65 L. T. 422); see also The Khedive, supra (per Lord Blackburn, 5 App. Cas. at p. 894, and Lord Watson, at p. 901); The Hochung, The Lapwing (1882), 51 L. J. P. C. 92; 7 App. Cas. 512; The Hibernia (1874), 31 L. T. 803; 24 W. R. 60; The Magnet (1875), 44 L. J. Ad. 1; L. R. 4 A. & E. 417; The Englishman (1877), 47 L. J. Ad. 9; 3 P. D. 18; The Glamorganshire (1888), 13 App. Cas. 454; 59 L. T. 572; The Argo (1900), 82 L. T. 602; 9 Asp. M. L. C. 74; The Hermod (1890), 62 L. T. 670; 6 Asp. M. L. C. 509. Or that the circumstances made the departure from the regulations necessary: The Memnon, supra (see especially per Lord Herschell, 62 L. T. at p. 85); The Hibernia, supra; The Lovebird (1881), 6 P. D. 80; 44 L. T. 650; see also The Arklow (1883), 53 L. J. P. C. 9; 9 App. Cas. 136; The Tirzah (1878), 48 L. J. Ad. 15; 4 P. D. 33.

As to what circumstances excuse a departure from the regulations, see The Memnon, supra; The Tirzah, supra; The Kyanite (1905), 42 S. L. Rep. 602.

A vessel is not absolved from liability by the fact that the breach on her part was only a comparatively venial error, the other vessel having been navigated with reckless negligence. The Arratoon Apcar (1889), 59 L. J. P. C. 49; 15 App. Cas. 37.

It would appear that, if there be a reasonable compliance with the regulations as to lights, a small deviation from the letter thereof as to fixing, range, &c. will not amount to an infringement within these provisions. The Fire Queen (1887), 56 L. J. P. 90; 12 P. D. 147.

(h) Tug and tow.-A ship with another in tow must be considered, in the application of the collision regulations, as one ship, and therefore the one must be deemed to be in fault where the other has infringed a regulation. See The Mary Hounsell (1879), 48 L. J. Adm. 54; 4 P. D. 204. Thus, a tow was deemed in fault under sub-s. (4), where her tug exhibited improper lights, which might have contributed to a collision between the tow and another vessel. The Devonian, 70 L. J. P. 66: [1901] P. 221. But see this point considered, Marsden on Collisions, 5th ed. pp. 166 et seq.

Pt. V.

419.

Pt. V. 420.

Inspection as
to lights and
fog signals.
[1862, s. 30;
36 & 37 Vict.

c. 85, s. 30;
39 & 40 Vict.
c. 80, s. 14.]

[1862, s. 30, sub-s. (3).]

Foreign ships and waters, &c.-Quære whether the statutory presumptions of fault under s. 419, sub-s. (4), and s. 422, sub-s. (3), apply to a foreign vessel beyond the territorial jurisdiction where there is no Order in Council applying Part V. of this Act to ships of her country. See The Koning Willem I., 72 L. J. P. 28; [1903] P. 114; but see Marsden on Collisions, 5th ed. pp. 58, 201. The presumption does, however, apply to all ships, British or foreign, in collision in British waters, because s. 418 (2) provides that the provisions of this Part of this Act are to apply to foreign ships in British waters as if they were British ships.

His Majesty's ships.-In The Sanspareil, 69 L. J. P. 127; [1900] P. 267, C. A., it was held that, by reason of s. 741, the collision regulations do not apply to King's ships, and that though such ships are subject to precisely similar regulations (the King's Regulations) made by Order in Council, yet a breach of these does not give rise to a presumption of fault under this section; and moreover that the presumption of fault under this section did not apply to a merchant ship crossing the course of one of His Majesty's ships from starboard to port, and disregarding the obligations imposed by the Note to Articles 21 and 27 of the regulations, because Article 28 is only applicable to ships both of which are bound to obey the regulations, and Article 27 is not a collision regulation. Per A. L. Smith, L. J., [1900] P. 281, confirming Barnes, J. See s. 741.

(i) Damages. Where both ships are to blame for a collision, but one of them by virtue only of this statutory presumption, the rule of the Admiralty Court as to the division of loss applies as between their owners. The Hochung, The Lapwing, supra; The Khedive, supra.

And it would seem that the owner of cargo on board such ship can recover compensation from the owners of the other ship. See The Milan (1861), 31 L. J. Adm. 105; Lush. 388 (under M. S. A. 1854, s. 298). He has, however, been held only entitled to half damages. Ibid.; followed in The Karo (1887), 57 L. J. P. 8; 13 P. D. 24, 31.

420.-(1.) A surveyor of ships may inspect any ship, British or foreign, for the purpose of seeing that the ship is properly provided with lights and the means of making fog signals, in conformity with the collision regulations, and if the surveyor finds that the ship is not so provided, he shall give to the master or owner notice in writing, pointing out the deficiency, and also what is, in his opinion, requisite in order to remedy the

same.

(2.) Every notice so given shall be communicated in the manner directed by the Board of Trade to the chief officer of customs at any port at which the ship may seek to obtain a clearance or transire; and the ship shall be detained (a), until a certificate under the hand of a surveyor of ships is produced to the effect that the ship is properly provided with lights and with the means of making fog signals, in conformity with the collision regulations.

(3.) For the purpose of an inspection under this section a surveyor shall have all the powers of a Board of Trade inspector under this Act (b).

(4.) Where the certificate as to lights and fog signals is refused, an owner may appeal to the court of survey for the port or district where the ship for the time being is in manner directed by the rules of that court (c).

(5.) On any such appeal the judge of the court of survey shall report (c) to the Board of Trade on the question raised by the appeal, and the Board of Trade, when satisfied that the require

ments of the report and of this Act as to lights and fog signals have been complied with, may grant, or direct a surveyor of ships or other person appointed by them to grant, the certificate.

(6.) Subject to any order made by the judge of court of survey the costs of and incidental to the appeal shall follow the event.

(7.) A surveyor in making an inspection under this section shall, if the owner of the ship so require, be accompanied on the inspection by some person appointed by the owner, and, if in that case the surveyor and the person so appointed agree, there shall be no appeal under this section to the court of survey.

(8.) Such fees as the Board of Trade may determine shall be paid in respect of an inspection of lights and fog signals under this section not exceeding those specified in the Sixteenth Schedule to this Act.

(a) The decision in The C. S. Butler, cited under s. 742, seems to have been based partly upon the use of the words "no collector shall allow her to proceed to sea," in the corresponding provision of M. S. A. 1862, but the change in language does not appear to affect the authority of the decision.

As to enforcement of detention, see s. 692.

(b) See ss. 729, 730, as to powers of inspector.

(c) As to courts of survey and rules thereof, see ss. 487-489; as to exclusion of rights of appeal to other courts, see Denny v. Board of Trade, supra (s. 275).

Pt. V.

421.

421.—(1.) Any rules made before or after the passing of this Saving for Act under the authority of any local Act (a), concerning lights local rules of and signals to be carried, or the steps for avoiding collision to be navigation in harbours, &c. taken, by vessels navigating the waters of any harbour, river, or [1862, ss. 31, other inland navigation, shall, notwithstanding anything in this Act, have full effect (b).

(2.) Where any such rules are not and cannot be made, Her Majesty in Council on the application of any person having authority over such waters (c), or, if there is no such person, any person interested in the navigation thereof, may make such rules (a), and those rules shall, as regards vessels navigating the said waters, be of the same force as if they were part of the collision regulations (d).

(a) For some of the rules in force in various localities under local Acts or Orders in Council, see Appendix to Marsden on Collisions, 5th ed. p. 512, and Stuart Moore, Rules of the Road at Sea, 3rd ed.

The following Local Rules have been made; the dates in brackets refer to day of publication in London Gazette:

Avon River, 25 Aug. (6 Sept.) 1892; Bridgewater Canal, Manchester and Salford Junction Canal, and Runcorn and Weston Canal, 18 (20) May, 1870; Bristol, 29 (30) June, 1896, St. R. & O. 1896, No. 579; Clyde River and Harbour of Glasgow, 23 (27) Feb. 1891; Galway, 26 Nov. (4 Dec.) 1900, St. R. & O. 1900, No. 924; Humber, Trent and Ouse River, 7 (11) Mar. 1887; 8 (14) Feb. 1890; Mersey, 17 (25) Sept. 1900, St. R. & O. 1900, No. 737; Mersey and Irwell Navigation, 18 (20) May, 1870; Suir Navigation, 28 Nov. (Lon. Gaz. 2 Dec., Dub. Gaz. 6 Dec.), 1887; Waterford Harbour, 10 Nov. (Lon. Gaz. 12 Dec., Dub. Gaz. 16 Nov.), 1886; Windermere, 19 (21) Nov. 1902, St. R. & O. 1902, No. 869.

Collision regulations for the dockyard ports are contained in Orders made under 28 & 29 Vict. c. 125, and such regulations as regards His Majesty's and other vessels have the same effect as if they had been regulations made under the Merchant Shipping Acts. See Dockyard Ports Regulation Act, 1865, s. 7.

32.]

Pt. V. 422.

Duty of vessel

to assist the other in case of collision.

[36 & 37 Vict.

c. 85, s. 16.]

As to the saving of Orders in Council under this Act, see s. 745.

(b) Such rules have not the same force as if they were part of the collision regulations, unless the local Act under which they were made so provides. See s. 419, note (f).

(c) Sub-s. 2 is extended to and includes power to make collision regulations for the sea channels or approaches to the River Mersey between the Rock Lighthouse and the furthest point seawards to which such sea channels or approaches respectively are for the time being buoyed on both sides. Mersey Channels Act, 1897, s. 2.

(d) See s. 419, note (ƒ), "The Collision Regulations-Local Rules.”

422.-(1.) In every case of collision between two vessels (a), it shall be the duty of the master or person in charge (b) of each vessel, if and so far as he can do so without danger to his own Vessel, crew, and passengers (if any) (c)—

(a.) to render to the other vessel, her master, crew, and passengers (if any) such assistance as may be practicable, and may be necessary to save them from any danger caused by the collision, and to stay by the other vessel until he has ascertained that she has no need of further assistance, and also

(b.) to give to the master or person in charge of the other vessel the name of his own vessel and of the port to which she belongs, and also the names of the ports from which she comes and to which she is bound.

(2.) If the master or person in charge of a vessel fails to comply with this section, and no reasonable cause for such failure is shown, the collision shall, in the absence of proof to the contrary (d), be deemed to have been caused by his wrongful act, neglect, or default (e).

(3.) If the master or person in charge fails without reasonable cause to comply with this section, he shall be guilty of a misdemeanor (f), and if he is a certificated officer, an inquiry into his conduct may be held, and his certificate cancelled or suspended (f).

Cf. s. 419.

(a) "Vessels."-It should be noted that in s. 419 the term "ships" is used. For the meaning of these terms, see s. 742. Ex parte Ferguson, there cited, was decided under M. S. A. 1862, s. 33 (corresponding to 1894, s. 422), in which the term " ships was used. The wider term " vessels was substituted in 36 & 37 Vict. c. 85, s. 16, so as to apply s. 422 to collisions both in the sea and in harbours, rivers and other navigable waters. See ss. 415, 421.

Foreign vessels, His Majesty's ships, &c.-See note (h) to s. 419.

(b) "Master or person in charge."-The words "master or" were first introduced in the Act of 1874; but the change does not appear to render the following decisions under the prior Act (1862, s. 33) inapplicable :

While the master is below, the duty to stand by is on the mate or other person in charge of the deck. Ex parte Ferguson (1871), 40 L. J. Q. B. 105; L. R. 6 Q. B. 280.

But it seems that a compulsory pilot is not a "person in charge" within this section, and that the fact of his being on board does not of itself relieve the master or mate or other person in charge from the duty of rendering assistance nor the owners from liability under the section. The Queen (1869), 38 L. J. Adm. 39; L. R. 2 A. & E. 354.

If the collision be caused solely by the neglect of the compulsory pilot, the subsequent misconduct of the master or mate, &c. in not rendering assistance will not make the owners liable, because proof that the pilot's negligence was the sole cause is "proof to the contrary" within sub-s. (2) of the present section. The Sussex, 73 L. J. P. 73; [1904] P. 236.

Tug.-It seems that the statute makes it the duty of a tug to stand by and assist a vessel which has collided with the tug's tow. The Hannibal and The Queen (1867), L. R. 2 A. & E. 53; 37 L. J. Adm. 12. But this does not affect such tug's right to salvage reward or towage remuneration for services thus rendered. Ibid. and The Harvest Home, 74 Ľ. J. P. 3, 65; [1904] P. 409, at p. 421.

(c) A vessel, unable actually to stay by the injured vessel, has been held at fault for not lowering a boat, in The Adriatic (1875), 33 L. T. 102; 3 Asp. M. L. C. 16; and for not answering signals of distress, in The Emmy Haase (1884), 53 L. J. P. 43; 9 P. D. 81. See also (under the less stringent provisions of M. S. A. 1862, The Queen of the Orwell (1863), 7 L. T. 839; 11 W. R. 499.

(d) See The Sussex, under note (b), supra.

(e) Cf. s. 419, note (i), “ Damages.”

(f) As to the punishment of misdemeanors, see s. 680; and as to cancelling, &c. of certificates, s. 470.

Pt. V. 423–424.

official log.

[1854, s. 328.]

423.-(1.) In every case of collision in which it is practi- Collisions to cable so to do, the master of every ship shall immediately after be entered in the occurrence cause a statement thereof, and of the circumstances under which the same occurred, to be entered in the official log book (if any), and the entry shall be signed by the master, and also by the mate or one of the crew.

(2.) If the master fails to comply with this section he shall for each offence be liable to a fine not exceeding twenty pounds.

As to official log-books and entries therein, see ss. 239 et seq.

424. Whenever it is made to appear to Her Majesty in Application Council that the Government of any foreign country is willing of collision that the collision regulations, or the provisions of this Part of foreign ships. regulations to this Act relating thereto or otherwise relating to collisions, or [1862, ss. 58, any of those regulations or provisions should apply to the ships 62.] of that country when beyond the limits of British jurisdiction (a), Her Majesty may, by Order in Council, direct that those regulations and provisions shall, subject to any limitation of time, conditions and qualifications contained in the Order, apply to the ships of the said foreign country, whether within British jurisdiction or not, and that such ships shall for the purposes of such regulations and provisions be treated as if they were British ships (b).

(a) When within British jurisdiction all foreign ships are subject to the collision regulations. See s. 418, sub-s. (2).

(b) Orders in Council have from time to time been made under the repealed Merchant Shipping Acts and this Act, applying the then existing British Collision Regulations to foreign ships when beyond British jurisdiction. The Orders made before 1894, so far as they have not been specifically repealed by subsequent Orders, are still in force by reason of s. 745.