1860. January 26. THE THOMAS BLYTH. Salvage-Loss of Salvors' Vessel-Onus Probandi. Where the salvors' vessel is injured or lost whilst engaged in the salvage service, the presumption is that the injury or loss was caused by the necessities of the service, and the burden of proof is on the defendants alleging that the loss was caused by the default of the salvors. THIS HIS was an action of salvage brought by the owner, master and crew of the lugger Bright Star, against the British barque Thomas Blyth, her freight and cargo, for services rendered in getting her off the Roar Sand, near Dungeness. The salvors included in their claim a claim for the loss of their lugger, which was stove in and sunk during the performance of the services. The owners of the Thomas Blyth alleged that this was caused by the carelessness of the salvors. Twiss, Q.C., and Clarkson for the salvors. Deane, Q.C., and Spinks for the owners of the Thomas Blyth. DR. LUSHINGTON, in the course of his judgment, said, that where the vessel of the salvors was injured or lost whilst engaged in the salvage service, the presumption was that the injury or loss was caused by the necessities of the service, and not by the default of the salvors; that the burden of proof lay upon the defendants alleging that the loss was caused by the salvors' own act. The learned JUDGE pronounced for the salvors and awarded them 2007. Clarkson, proctor for the salvors. Rothery for the Thomas Blyth. THE TEMORA. Collision Irish Trader carrying Passengers-Compulsory Pilotage-17 & 18 Vict. c. 104, ss. 353, 354, 376,379, 388, 17 & 18 Vict. c. 120, ss. 3, 4, and 6 Geo. 1V. c. 125, s. 59. The 354th section of the Merchant Shipping Act, 1854, making pilotage compulsory upon certain vessels, is not to be restricted by the provision of the 353rd section, that all existing exemptions from compulsory pilotage should continue in force. An Irish trader (as described by 6 Geo. 4, c. 125, s. 59), therefore, carrying passengers, is compelled to employ a licensed pilot in the river Thames. R. v. Stanton (a) distinguished. COLLISION. The Temora, the vessel proceeded against, In traded between London and Belfast: at the time of the collision she was coming from Belfast to London, and carrying passengers; and was in charge of a licensed Trinity House. pilot. Neither master nor mate had a pilotage certificate. the river Thames, off the East and West India Docks, she ran into the Gowrie, the vessel proceeding in the cause. The Trinity Masters were of opinion that the collision was occasioned solely by the fault of the pilot on board the Temora. The question then arose whether the employment of the pilot was compulsory, the owners having pleaded non-liability under s. 388 of the Merchant Shipping Act, 1854. The following are the sections of the statutes referred to in the argument and judgment: 17 & 18 Vict. c. 104. Compulsory Pilotage (General). Sect. 353. Subject to any alteration to be made by any pilotage authority in pursuance of the power hereinbefore in that behalf given, the employment of pilots shall continue to be compulsory in all districts in which the same was by law compulsory immediately before the time when this Act comes into operation: and all exemptions from compulsory pilotage then existing within such districts shall also continue in force; and every master of any unexempted ship navigating within any such district, who, after a qualified pilot has offered to take charge of such ship, or has made a signal for that purpose, either himself pilots such ship without possessing a pilotage (a) 8 E. & B. 445. L. C 1860. January 31. 1860. January 31. certificate enabling him so to do, or employs or continues to employ an unqualified person to pilot her, and every master of any exempted ship navigating within any such district, who after a qualified pilot has offered to take charge of such ship, or has made a signal for that purpose, employs or continues to employ an unqualified pilot to pilot her, shall for every such offence incur a penalty of double the amount of pilotage demandable for the conduct of the ship. 354. The master of every ship carrying passengers between any place situate in the United Kingdom or the islands of Guernsey, Jersey, Sark, Alderney and Man, and any other place so situate, when navigating upon any waters situate within the limits of any district for which pilots are licensed by any pilotage authority under the provisions of this or of any other Act, or upon any part thereof so situate, shall, unless he or his mate has a pilotage certificate enabling such master or mate to pilot the said ship within such district, granted under the provisions hereinbefore contained, or such certificate as next hereinafter mentioned, being a certificate applicable to such district and to such ship, employ a qualified pilot to pilot his ship; and if he fails so to do he shall for every offence incur a penalty not exceeding one hundred pounds. Compulsory Pilotage (Trinity House). 376. Subject to any alteration to be made by the Trinity House, and to the exemptions hereinafter contained, the pilotage districts of the Trinity House within which the employment of pilots is compulsory are the London district and the Trinity House outport districts, as hereinbefore defined; and the master of every ship navigating within any part of such district or districts, who, after a qualified pilot has offered to take charge of such ship, or has made a signal for that purpose, either himself pilots such ship without possessing a certificate enabling him so to do, or employs or continues to employ an unqualified person to pilot her, shall for every such offence, in addition to the penalty herein before specified, if the Trinity House certify in writing under their common seal that the prosecutor is to be at liberty to proceed for the recovery of such additional penalty, incur an additional penalty not exceeding five pounds for every fifty tons burden of such ship. 379. The following ships, when not carrying passengers, shall be exempted from compulsory pilotage in the London district and in the Trinity House outport districts (that is to say), (1) Ships employed in the coasting trade of the United Kingdom; (2) Ships of not more than sixty tons burden; (3) Ships trading to Boulogne or to any place in Europe north of Boulogne; (4) Ships from Guernsey, Jersey, Alderney, Sark or Man, which are wholly laden with stone being the produce of those islands; (5) Ships navigating within the limits of the port to which they belong; (6) Ships passing through the limits of any pilotage district, on their voyages between two places both situate out of such limits, and not being bound to any place within such limits nor anchoring therein. 388. No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law. 17 & 18 Vict. c. 120, s. 3. With the exception of such provisions of this Act as are hereinafter expressly stated to be intended to come into operation immediately after the passing thereof, this Act shall come into operation at the same time as the Merchant Shipping Act, 1854. 4. There shall be hereby repealed— The several Acts and parts of Acts set forth in the first schedule hereto, to the extent to which such Acts or parts of Acts are therein expressed to be repealed, and all such provisions of any other Acts or of any charters, and all such laws, customs and rules as are inconsistent with the provisions of the Merchant Shipping Act, 1854: provided that such repeal shall not affect (1) Any provisions contained in the Act of the seventh year of his late Majesty King William the Fourth, chapter seventy-nine, as to title, application of purchase-money or borrowing money, and having relation to the power of purchasing lighthouses given to the Trinity House by the same Act; (2) Any security duly given before this Act comes into opera tion; (3) Anything duly done before this Act comes into operation; to be incurred in respect of any offence committed before (6) The institution of any investigation or legal proceeding, 1860. January 31. 1860. January 31. covering any such liability, penalty, forfeiture, or punishment as aforesaid. (7) Any appointment, bye-law, regulation, or licence duly made or granted under any enactment hereby repealed, and subsisting at the time when this Act comes into operation, and the same shall continue in force, but shall be subject to such provisions of the Merchant Shipping Act, 1854, as are applicable thereto respectively. In the schedule, among the Acts to be repealed is specified Act 6 Geo. IV. c. 125: Extent of Repeal, the whole Act. 6 Geo. IV. c. 125, s. 59. Provided always, and be it further enacted, that, for and notwithstanding anything in this Act contained, the master of any collier, or of any ship or vessel trading to Norway, or to the Cattegat or Baltic, or round the North Cape, or into the White Sea on their inward or outward voyages, or of any constant trader inwards from the ports between Boulogne inclusive and the Baltic (all such ships and vessels having British registers, and coming up either (a) by the North Channel, but not otherwise), or of any Irish trader using the navigation of the rivers Thames or Medway, or of any ship or vessel employed in the regular coasting trade of the kingdom, or of any ship or vessel wholly laden with stone from Guernsey, Jersey, Alderney, Sark, or Man, and being the production thereof, or of any ship or vessel not exceeding the burthen of sixty tons British register, except as hereinafter provided, or of any other ship or vessel whatever, whilst the same is within the limits of the port or place in relation to which particular provision hath heretofore been made by any Act or Acts of Parliament, or by any charter or charters for the appointment of pilots, shall and may lawfully and without being subject to any of the penalties by this Act imposed, conduct or pilot his own ship or vessel, when and so long as he shall conduct or pilot the same without the aid or assistance of any unlicensed pilot or other person or persons than the ordinary crew of the said ship or vessel. Deane, Q.C., and Wambey, for the Gowrie.-The employment of the pilot was not compulsory. The 354th section of the Merchant Shipping Act, 1854, which directs that "the master of every ship carrying passengers between any place situate in the United Kingdom and any other place so situate," &c. is to be read with the preceding section, which enacts that all exemptions from compulsory pilotage existing immediately before the time when the Act came into operation shall continue in (a) Sic. |