(2.) A pilotage district which is at the commencement of this Act under the authority of any sub-commissioners appointed by either of the said corporations shall not be extended, except with the consent of Her Majesty in Council. (3.) Sub-commissioners appointed or to be appointed under this section shall not be deemed to be pilotage authorities within the meaning of this Act (b), nor shall anything in this Act be held to confer upon the commissioners for regulating the pilotage of the port of Kingston-upon-Hull and of the river Humber any jurisdiction of a different nature or character from that which they have exercised before the commencement of this Act. (a) As to the saving of appointments made under the repealed Act, see s. 715. (b) See s. 573 for definition of "pilotage authority." Saving for Liability of Owners and Masters. Pt. X. 633. of owner or 633. An owner or master of a ship shall not be answerable Limitation to any person whatever (a) for any loss or damage occasioned of liability by (b) the fault or incapacity of any qualified pilot (c) acting in charge of (d) that ship within any district () where the employment of a qualified pilot is compulsory by law (f). This section is probably merely declaratory of the common law, under which a compulsory pilot would, it appears, not be regarded as the servant or agent of the owner or master, so as to make them liable for his negligence. See per Brett, M. R., The Hector (1883), 52 L. J. Ad. 51; 8 P. D. 218, 224; and see General Steam Nav. Co. v. British and Col. S. N. Co., infra; The Halley (1868), 37 L. J. Ad. 33; L. R. 2 P. C. 193; The Annapolis and The Johanna Stoll (1861), 30 L. J. Ad. 201; Lush. 295; The Maria (1839), 1 W. Rob. 95. The earlier enactments on this subject were 52 Geo. 3, c. 39, s. 30; 6 Geo. 4, c. 125, s. 55. (a) The Thames Conservancy Act, 1857, s. 96, which makes the owner liable for damage to the property of the commissioners, does not override the provisions of this section. Conservators of the R. Thames v. Hall (1868), 18 L. T. 361; 16 W. R. 971. See also, as to the effect of a local Act, The Clan Gordon (1882), 7 P. D. 190; 46 L. T. 490. Where a collision has occurred through the bad navigation of both vessels, and in the case of one of them this was due to the default of a compulsory pilot, the owner of such vessel is entitled to recover a moiety of the damage sustained by her without any deduction on account of the damage sustained by the other. The Hector, supra. As to costs, see ibid.; The Rigborgs Minde (1883), 52 L. J. P. 74; 8 P. D. 132; 49 L. T. 232 (C. A.); The Daioz (1877), 47 L. J. Ad. 1; 37 L. T. 137 (C. A.) ; The Admiral Boxer (1857), Swa. 193. (b) "Occasioned by" means "solely occasioned by." To exempt the owners from liability, it must be shown that the pilot was exclusively to blame, and they are not exempted if the loss has been contributed to by any fault or negligence of themselves or their agents, officers, or crew. See The Christiana (Hammond v. Rogers) (1850), 7 Moo. P. C. C. 160; The Iona (1867), L. R. 1 P. C. 426; 4 Moore, P. C. C. (N. S.) 336; The Meteor (1875), Ir. R. 9 Eq. 567. For application of this principle to special facts, see The General de Caen (1855), Swa. 9; The Mobile (1856), Swa. 69, 127; The Admiral Boxer (1857), Swa. 193; The Argo (1859), Swa. 462; The Schwalbe (1861), Lush. 239; 4 L. T. 160; The Carrier Dove (1863), B. & L. 113; 2 Moore, P. C. C. (N. S.) 261; The Calabar (1868), L. R. 2 P. C. 238; 19 L. T. 768; The Ocean Wave (Marshall v. Moran) (1870), L. R. 3 P. C. 205; 23 L. T. 218; The Livia (1872), 25 L. T. 887; masters where Pt. X. 633. 1 Asp. M. L. C. 201; The Daioz, supra; The Schwan (The Albano), [1892] P. 419; 69 L. T. 34 (C. A.). The onus is on the owners claiming exemption, to prove "first, that a qualified pilot was acting in charge of the ship; secondly, that that charge was compulsory; and, thirdly, that it was his fault or incapacity which occasioned the damage." Per Lord Selborne, Clyde Navigation Co. v. Barclay (1876), 1 App. Cas. 790, 796; 36 L. T. 379; and see cases above cited. But when prima facie proof has been given that the pilot was solely to blame, the onus is shifted on to the other party to prove that the owners were guilty of contributory negligence. Ibid., per Lord Chelmsford; and see The Indus (1886), 12 P. D. 46; 56 L. J. P. 88. It has been held that it is for the compulsory pilot and not the master to decide whether a ship should put to sea in unfavourable weather. Burrell v. Macbrayne (1891), (Sc.) 18 Ct. of Sess. Cas. (4th Ser.) 1048. As to the operation of the statutory presumption of fault where the collision is caused by the fault of a compulsory pilot, see s. 422, note (b), and The Queen, there cited. Where in breach of statutory regulations an improper light, which might have contributed to the collision, was exhibited by order of a compulsory pilot, it was held that the owners were not exempt on the ground of compulsory pilotage from liability under the statutory presumption of fault (s. 419), because the master ought not to have permitted an infringement of the regulations. The Ripon (1885), 54 L. J. P. 56; 10 P. D. 65. (c) As to who is a qualified pilot, see s. 586. By an Order in Council of 1st May, 1855, no pilot licensed for the London district is to take charge of vessels drawing more than fourteen feet in the Thames and Medway, until he has passed a certain special examination, "unless there shall be no qualified pilot to be obtained who has passed the said examination." Where no such specially qualified pilot was to be obtained, it was held that an ordinary licensed pilot was qualified, and his employment compulsory. The Carl XI., 61 L. J. P. 111; [1892] P. 324. As to the liability of the pilot, and the jurisdiction with respect thereto, see The Urania (1861), 10 W. R. 97; 5 L. T. 402; The Alexandria (1872), 41 L. J. Ad. 91; L. R. 3 A. & E. 574; Flower v. Bradley (1874), 44 L. J. Ex. 1; 31 L. T. 702; The Octavia Stella (1887), 57 L. T. 632; 6 Asp. M. L. C. 182; R. v. Judge of City of London Court, 61 L. J. Q. B. 337; [1892] 1 Q. B. 273; The Zeta, 63 L. J. P. 17; [1893] A. C. 468; Greenock Towing Co. v. Hardie (1901), 4 F. Ct. of Sess. Cas. 217. And as to limitation of the liability of a Trinity House pilot, see s. 620. (d) The pilot must be compulsorily in charge. Where the law of a foreign country, though it requires a pilot to be taken on board as an adviser, leaves the control of the navigation solely with the master, or does not require him to give it up to the pilot, then the owners are not exempted from liability, even though the master in fact allows the pilot to take charge of the ship. The Guy Mannering (1882), 51 L. J. P. 17; 7 P. D. 132 (Suez Canal); The Agnes Otto (1887), 56 L. J. P. 45; 12 P. D. 56 (Danube International Rules); The Augusta (1887), 56 L. T. 58; 57 ibid. 326; 6 Asp. M. L. C. 58, 161 (French law, entering Havre); The Prins Hendrik, 68 L. J. P. 86; [1899] P. 177 (Scheldt, Holland); The Dallington, 72 L. J. P. 17; [1903] P. 77 (Scheldt, Belgium). Where the master of the vessel holds a certificate (s. 599) entitling him to pilot his ship at the place of collision, a qualified pilot employed on her is not compulsorily in charge so as to relieve the owner of liability, though pilotage be compulsory within the district. See The Bristol City, 71 L. J. P. 5; [1902] P. 10; The Killarney, 30 L. J. Ad. 41; (1861) Lush. 202. Nor does the exemption apply where the employment of the pilot was for a purpose for which it is not compulsory, e.g., shifting to a new berth, though in a port in which pilotage generally is compulsory. The Victoria (1867) (Ir.), Ir. Rep. 1 Eq. 336. As to the effect of a pilot remaining in charge after his compulsory duty is at an end, see The Woburn Abbey (1869), 38 L. J. Ad. 28; 20 L. T. 621; The Christiana (1850), 7 Moo. P. C. C. 160; see also note (e), infra. As to two pilots dividing the pilotage, one relieving the other, see The Rigborgs Minde (1883), 52 L. J. P. 74; 8 P. D. 132. As to a vessel anchoring in itinere in a river in charge of pilot, see The City of Cambridge (Wood v. Smith) (1874), 43 L. J. Ad. 11; L. R. 5 P. C. 451; on appeal from 43 L. J. Ad. 6; L. R. 4 A. & E. 161; The Princeton (1878), 47 L. J. Ad. 33; 3 P. D. 90; The Cachapool (1881), 7 P. D. 21; 46 L. T. 171. Compulsory pilotage continues from the time the ship enters the district until she is at her destination, and a temporary anchorage in a place of safety does not terminate the compulsion. The Ole Bull, 74 L. J. P. 75; [1905] P. 52. As to responsibility for putting to sea in bad weather, see Burrell v. Macbrayne, v. sup. note (b); and as to responsibility for proceeding with defective equipment or in bad trim, see Mann, Macneal & Co. v. Ellerman Line (1904), 7 F. Ct. of Sess. Cas. (5th Series) 213; London & Glasgow Co. v. Anchor Line (1903), 5 F. Ct.. of Sess. Cas. (5th Series) 1089. A pilot in charge of a ship in tow has been held not to be in charge of the tug so as to exempt the latter from liability for damage caused by her to a third vessel. The Mary (1879), 48 L. J. Ad. 66; 5 P. D. 14. See also The Sinquasi (1880), 50 L. J. Ad. 5; 5 P. D. 241; The Borussia (1856), Swa. 94; 27 L. T. (O. S.) 72. As to whether, in an action by a tow against her tug, the latter can set up contributory negligence on the part of the compulsory pilot in charge of the tow, see Spaight v. Tedcastle (1881), 6 App. Cas. 217; 44 L. T. 589. (e) It seems that when the owner is compelled to take a pilot on board, and to pay him fees for the whole of a certain distance, he is protected from the consequences of the pilot's negligence while within the district in which he was taken on board, although during part of the distance pilotage is not compulsory. General Steam Nav. Co. v. British and Colonial Steam Nav. Co. (1869), 38 L. J. Ex. 97; L. R. 4 Ex. 238, followed in The Charlton (1895), 8 Asp. M. L. C. 29; 73 L. T. 49. See also per Lord Esher in The Guy Mannering, supra, and Barnes, J., in The Sussex, [1904] P. 236. The section does not require that the pilot should be compulsorily employed where the accident happened, but only that he should have been compulsorily employed within the district where it happened it preserves the sole responsibility of the pilot in the whole of the district for which he was employed." General S. Nav. Co. v. British and Colonial S. Nav. Co.,'supra, per cur. (f) See ss. 603-605, 622-625, and notes thereto. Pilotage is compulsory so as to exempt owners from liability, if the employment of a qualified pilot is enforced by a penalty. See The Arbutus (1864) (Ir.), 11 L. T. 208; 2 M. L. C. (O. S.) 136; The Ruby (1890), 59 L. J. P. 68; 15 P. D. 139, 164 (penalty on master under a statutory byelaw); Jones v. Bennett (1890), 63 L. T. 705; 6 Asp. M. L. C. 596 (penalty on unqualified person acting as pilot); The Hibernian (Redpath v. Allen) (1872), 42 L. J. Ad. 8; L. R. 4 P. C. 511 (principle not affected by penalty being destined to a particular fund). Or if the pilotage charge can be recovered whether the pilot is employed or not. Carruthers v. Sidebotham (1815), 4 M. & S. 77; The Maria, supra; The Agricola (1813), 2 W. Rob. 10; 7 Jur. (N. S.) 157; The Johann Sverdrup (1886), 56 L. J. P. 63; 12 P. D. 43, 44. It is immaterial that the same pilot is, and has been for several years, selected by the owners. The Batavier (1845), 2 W. Rob. 407; 10 Jur. (O. S.) 19 (under 6 Geo. 4, c. 125); see also The Hibernian, supra (under Canadian statutes). But see also Martin v. Temperley (1843), 12 L. J. Q. B. 129; 4 Q. B. 298 (under a local Act). As to whether the exemption would apply where an Act merely “obliged” and "required" the master to employ the pilot without making him liable to a penalty or the payment of pilotage in case of non-compliance, see The Maria, supra. It seems the exemption applies whether the compulsion is by the law of this or of a foreign country or of a colony. See The Halley, infra; The Peerless (or Prowse v. European, &c. Co.) (1860), 30 L. J. Ad. 89; Lush. 30, 103; and cases cited. In the case of a collision in the waters of a foreign state, though the Court will admit proof of the law of that state in order to determine whether the collision was due to the fault of a compulsory pilot, it will not enforce a foreign law by which owners are made liable for the negligence of such a pilot. Halley (1868), 37 L. J. Ad. 33; L. R. 2 P. C. 193 (Smith v. Condry (1843), 1 How. 28 (Amer.), observed upon); and see The Augusta, supra. The Pt. X. 633. Pt. XI. 634. Management of lighthouses, buoys, and beacons. PART XI.—LIGHTHOUSES. See also as to exemptions of lighthouses, &c. from rates, and of vessels belonging to lighthouse authorities from harbour dues, ss. 731, 732; as to powers of lighthouse authorities to remove wreck, ss. 531 et seq. For definitions of "Lighthouse," "Buoys and beacons," see s. 742. As to Light Dues, see now also the Merchant Shipping (Mercantile Marine Fund) Act, 1898, post. General Management. 634.-(1.) Subject to the provisions of this Part of this Act, and subject also to any powers or rights now lawfully enjoyed or exercised by any person or body of persons having by law or [1854, s. 389.] usage authority over local lighthouses, buoys, or beacons (a) (in this Act referred to as "local lighthouse authorities," (b)), the superintendence and management of all lighthouses, buoys, and beacons shall within the following areas be vested in the following bodies; namely, (a.) throughout England and Wales, and the Channel Islands (c), and the adjacent seas and islands, and at Gibraltar, in the Trinity House (d); (b.) throughout Scotland and the adjacent seas and islands, and the Isle of Man, in the Commissioners of Northern Lighthouses (e); and (c.) throughout Ireland and the adjacent seas and islands, in the Commissioners of Irish Lights (d), and those bodies are in this Act referred to as the general lighthouse authorities and those areas as lighthouse areas. (2.) Subject to the provisions of this Part of this Act, the general lighthouse authorities shall respectively continue to hold and maintain all property now vested in them in that behalf in the same manner and for the same purposes as they have hitherto held and maintained the same. It seems that these authorities are not by these provisions constituted servants of the Crown so as to exempt them from liability to an action for negligence in the performance of their duties. Thus, the Trinity House were held liable for the negligence of a person whom they had licensed to remove an injured beacon : Gilbert v. The Corporation of the Trinity House (1886), 56 L. J. Q. B. 85; 17 Q. B. D. 795; and of their servants in charge of a pilot-cutter belonging to the corporation see Romney Marsh v. The Corporation of the Trinity House (1870), 39 L. J. Ex. 163; L. R. 5 Ex. 204; affirmed (1872), 41 L. J. Ex. 106; L. R. 7 Ex. 247; cf. Mersey Docks, &c. Trustees v. Gibbs (1864-66), 35 L. J. Ex. 225; L. R. 1 H. L. 93; 11 H. L. Cas. 686; and note (b) to s. 530. (a) As to what are included in these terms, see s. 742. (b) See ss. 652-657 as to local lighthouses. (c) See the restrictions imposed by s. 669. Pt. XI. (d) See definitions in s. 742. Before the Act there mentioned the Port of 635-639. Dublin Corporation had the control of lighthouses in Ireland. (e) As to the constitution of this body, see s. 668. to Board of 635. The general lighthouse authorities, and their respective Returns and officers, shall at all times give to the Board of Trade all such information returns, explanations, or information, in relation to the light- Trade. houses, buoys, or beacons within their respective areas, and the [1854, s. 393.] management thereof, as the Board require. Trade to 636.-(1.) The Board of Trade may, on complaint that any Power of lighthouse, buoy, or beacon under the management of any of the Board of general lighthouse authorities, or any work connected therewith, inspect on is inefficient or improperly managed or is unnecessary, authorise complaint any person appointed by them to inspect the same. made. (2.) A person so authorised may inspect the same accordingly, [1854, s. 393.] and make any inquiries in respect thereof, and of the management thereof, which he thinks fit; and all officers and others having the care of any such lighthouses, buoys, or beacons, or concerned in the management thereof, shall furnish any information and explanations in relation thereto which the person inspecting requires. House. 637. The Trinity House, and any of their engineers, work- Inspection men, and servants, may at all times enter any lighthouse within by Trinity any of the lighthouse areas for the purpose of viewing their con- [1854, s. 392.] dition or otherwise for the purposes of this Act. Construction of Lighthouses, &c. 638. A general lighthouse authority shall, within their area General but subject, in the case of the Commissioners of Northern Light- powers of houses and the Commissioners of Irish Lights, to the restrictions lighthouse enacted in this Part of this Act, have the following powers (in [1851, s. 404; this Act referred to as lighthouse powers), namely, powers (a.) to erect or place any lighthouse, with all requisite works, (b.) to add to, alter, or remove any lighthouse: (d.) to vary the character of any lighthouse or the mode of As to the liability of the authorities for negligence in the exercise of their powers, see note to s. 634. authorities. 50 & 51 Vict. c. 62, s. 5.] 639.-(1.) A general lighthouse authority may take and Powers as to purchase (a) any land which may be necessary for the exercise of land. their lighthouse powers, or for the maintenance of their works [1854, ss. 404, or for the residence of the light keepers, and for that purpose T. BB 412.] |