1885 THE Emma K. Smalley and out of sight to port in the fog, leaving two men on the Emma K. Smalley. At the time of the EMMA K. collision the wind was not blowing fresh from about west SMALLEY. South-west. The Vesta was not heading about south. The Vesta did not sight the Emma K. 400 yards distant. The Vesta did not keep her fog-horn going constantly, and could not plainly discern the Emma K. Smalley. The Emma K. Smalley was not seen by the Vesta at a sufficient distance from the Vesta. Not true that by exercise of ordinary care the Emma K. Smalley could have avoided the collision. Not true that the course of the Emma K. Smalley previous to the collision was improper. Not true that collision occurred through the inattention of the Emma K. Smalley. That just previous to the collision the wheel of the Vesta was put in weather becket, and so remained; and after the vessels got clear, the Vesta came round again to the stern of the Emma K. Smalley. The collision would not have occurred if the wheel of the Vesta had not been put in the weather becket. That the captain of Vesta at time of collision came on board Smalley in his shirt and drawers. Next morning the Vesta carried all sail going to Dorchester, which she could not do if mainsail had been cracked. The Smalley did not have any fog-horn previous to collision. That no fog-horn was blown by Vesta, or if blown, not loud enough to be heard a proper distance. The Vesta is a British vessel, and was not provided with such a fog-horn as is required by the regulations. The lights of the Smalley were larger and more powerful than those of the Vesta, and could be seen through thick fog a greater distance. The lights of the The Vesta were not according to regulation. D. L. Hanington, Q. C., and C. A. Palmer, for promovent. As Vesta was close hauled on starboard tack, and the C. W. Weldon, Q. C., for respondents. The libel is only injury to vessel. Nothing said about loss of earnings, cost of provisions, and other expenses. Parties are bound by their statements. Cannot shift case by evidence at variance with libel. 2 Pritch. Ad. Dig. 568, sec. 795. The North American (1); The Ann and Margaret (2). Case must be proved as alleged. The charge in libel is that they saw a vessel running S.; that we were running N. E., continued our course, and brought about the collision. Respondents say they heard no fog-horn. Allegation in libel is that we continued our course and caused the collision. The evidence of plaintiff is that we changed our position by luffing and caused it. The plaintiff has failed in proof; there was a fog-a fog-horn was required; did not blow until the Smalley was sighted; no regulation fog-horn. The Love Bird (3). Hanington, Q. C., in reply. We are not confined to allegations; we must prove the injury sustained, which has been done. The exact mode of causing the injury need not be alleged. If we allege the wrong and injury done, and prove it, that is sufficient. The wrongful or negligent act by which that injury was done need not be alleged. We had the right of road; it is upon respondents to prove our failure to comply with the regulations. They had no lookout; it was their duty to have a sufficient one, as the night was smoky and foggy. Our horn was blown. The onus is on defendants. In the case of The Love Bird, the evidence 1885 THE Emma K. SMALLEY. (1) 12 Moo. P. C. 331. (2) 13 Moo. P. C. 198. (3) 6 P. D. 80. 1885 THE was that the vessel had not the regulation fog-horn. They have not proved that we had not complied with the regulaEMMA K. tion as to a fog-horn. Refers to 43 Vict., c. 29, sec. 8. SMALLEY. The Margaret (1). WATTERS, J. This is a suit promoted by the owners of the schooner Vesta, of the burthen of 130 tons, against the schooner Emma K. Smalley, of the burthen of 180 tons, to recover for damages to the Vesta occasioned by a collision between 9 and 10 p. m., on the 3rd September, 1882, off Tynemouth Creek, in the Bay of Fundy. The Vesta was bound from Dorchester to New York, laden with building stone. The Emma K. Smalley was proceeding up the Bay to Moncton, in ballast. On the part of the Vesta it is stated in the libel that the wind was blowing fresh from about west south-west, that the Vesta was on the starboard tack, close hauled, heading about south, that she sighted the Emma K. Smalley about four hundred yards distant to windward, running free, and heading about north-east. That the Vesta kept her fog-horn going constantly, that she could plainly discern the Emma K. Smalley, which was then at a sufficient distance, by the exercising of ordinary care, to have avoided the collision. That the Emma K. Smalley improperly and wrongly held on her said course, and ran directly into the Vesta, striking her about the starboard main chains, and cutting her down to the water-way. On the part of the Emma K. Smalley it is replied that on the 3rd September, 1882, the day commenced with a thick fog, wind south-west, light breezes; at 1 o'clock the fog lifted, and the Emma K. Smalley made Cape Spencer; she was then laid on a course east by south, and so continued up to 8 p. m.; the fog shut in very thick, with smoke, as night came on; took in topsail and furled outer jib. At 8 p. m., the course was changed to east, and vessel kept on starboard tack, heading east, and going through the water at the rate of not more than three knots an hour, the tide running to the westward about two knots an hour. That at 8 p. m. the blasts of the fog-horn were changed from one to three blasts, and (1) 6 P. D. 76. kept constantly going at intervals of not less than a minute. up to the time of the collision, three blasts being blown each time. That a sharp lookout was also kept, and there were on deck at the time of and previous to the collision, the captain, mate, cook and a seaman. That for some time previous to, and at the time of the collision, the fog was very thick, with smoke, so that it was impossible to see far ahead. That about 9 p. m. the wind was about south south-west, and those on board the Emma K. Smalley heard some one on another vessel, which afterwards turned out to be the Vesta, calling out "Hard up, you are coming into us," or something to that effect, which order was obeyed by the Emma K. Smalley, and almost immediately afterwards the Emma K. Smalley fouled with the Vesta about her main rigging. The Emma K. Smalley denies in her reply that she was seen four hundred yards off by the Vesta, and sets up that the Vesta did not keep her fog-horn going constantly, and it is denied that, by the exercise of ordinary care and seamanship on the part of the crew of the Emma K. Smalley, that they could have avoided the collision. The reply also alleges that the persons on board the Emma K. Smalley did not hear any fog-horn previous to the collision, and that no fog-horn was blown on board the Vesta, or if blown was not blown loud enough to be heard a proper distance, and was not blown at proper intervals; and further, that the Vesta was not provided with such a fog-horn as is required by the regulations for preventing collisions at sea. They further allege that the lights of the Emma K. Smalley were large, and could be seen through a thick fog a greater distance than those of the Vesta, and that the lights of the Vesta were not according to the regulations. I am of opinion, from the evidence and conduct of the persons on board both vessels, that the weather on the night of the 3rd September, 1882, was dark and foggy. Both parties, in their pleading and evidence, say that for some time before and up to the time of the collision they kept their fog-horns going. In such weather it was, therefore, the duty of the master of each vessel to exercise the utmost vigilance, and to adopt the best means in his power to avoid 1885 THE EMMA K. SMALLEY. 1885 THE any collision. The Emma K. Smalley, being a vessel running free, was bound to keep out of the way of the other. EMMA K. It is urged and pressed on her part that she kept a good SMALLEY. lookout; that she was proceeding at moderate speed, and sounding her fog signal at proper intervals; that she heard no fog signals except her own; and that it was impossible, by reason of the fogginess of the night, to discern the Vesta, which was deeply laden, until the collision was inevitable. The master says: "I was on a lookout, and on the quarter deck, walking from one side to the other, and the mate was on the forecastle deck. I could not see the Vesta until she struck us." The mate says: "I was on the forecastle deck keeping a sharp lookout. Moran was at the wheel, and Nelson was forward on deck. The fog and smoke at the time of the collision was so thick that you could not see the length of the vessel." The nautical assessor with me in the case advises me that the speed of both vessels was moderate; that the Vesta was not seen by the Emma K. Smalley until the collision was inevitable; and that the failure of the Smalley to discern the Vesta sooner was owing to the fog and the absence of any warning that the Vesta was approaching; that although a fog-horn may have been blown on board of the Vesta, as stated by her mate, yet that it was not heard by the Smalley, which was to windward. The assessor is also of opinion that a proper lookout was kept on board the Emma K. Smalley, and that had she received warning of the approach of the Vesta in a reasonable time she might have avoided her, and, therefore, that no blame attaches to the Emma K. Smalley. Concurring with the opinion of the nautical assessor, I pronounce against the damages sued for. An important question upon the promovent's pleading has been raised by the respondent's counsel, viz.: that the case of the plaintiffs, as made out by their evidence, was entirely at variance with that set up by the plaintiffs' libel, and that the plaintiffs could not recover, as their proofs were not according to their allegations. Cases in the Admiralty Court have been cited, which establish that the Court must not allow the party proceeding to recover, if he fails to prove |