the case set up in his pleadings, although no fault be proved against his vessel and fault is established against the other vessel. The petition or libel of the plaintiff should set out all the facts upon which he rests his case, and a plaintiff who fails to establish his case so set up, will not be allowed to take the benefit of another state of facts, although he may establish upon such facts a perfectly good case. In the case of The Ann (1), where the plaintiff pleaded that the collision was wholly caused by defendant's vessel starboarding, the Court of Appeal was of opinion that plaintiff was on the true state of the facts entitled to recover. Yet they held, nevertheless, that he was barred from recovering, because the starboarding of defendant's vessel was not proved. The plaintiffs put their case in the libel, entirely upon the ground of The Ann having suddenly and improperly starboarded, and they said the damage was solely imputable to that act, and they failed to prove their allegation by the evidence; so in the present case, the plaintiff's allege that the Vesta sighted the Emma K. Smalley running free before the wind, and heading about north-east, and that the Emma K. Smalley was then at a sufficient distance from the Vesta, by the exercise of ordinary care and seamanship, to have avoided the collision, but that the said Emma K. Smalley improperly and wrongfully 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. The evidence of the captain of the Vesta disproves the allegation of the libel. He says: "The collision was occasioned by the Smalley's undertaking to cross my bow. When I first looked out of the cabin window I saw both of the lights of the Smalley and her sails, and when I got on deck I could only see the red light of her port side, showing that she was attempting to cross my bow." Again he says: "As I have before stated, the Smalley was running the course of the bay up, right clear before the wind, and if he had let her go on her course she would not have touched us." The evidence of the mate of the Vesta is to the same effect. He says: "I was keeping a good lookout; shortly (1) 13 Moore P. C. 198. 1885 THE EMMA K. SMALLEY. H 1885 THE I saw two lights, both of the approaching vessel. I apprehended no danger, and the Smalley luffed right to shut her EMMA K. green light out. The Smalley, instead of keeping off, luffed, SMALLEY. and undertook to cross our bow and came into us." The evidence of Belliveau, the steersman, is to the same effect. The fault, therefore, which is imputed in plaintiff's libel to the Emma K. Smalley, is that she wrongfully kept on her course and caused the collision, whereas, by the evidence of the plaintiff, it is set up that the Smalley would have avoided the collision had she kept her course, but that she suddenly luffed up, shut in her green light, and so caused the collision. The evidence, therefore, is in conflict and not reconcilable with plaintiff's libel. For the reasons before given, I am of the opinion that the collision was one of those accidents of navigation which no ordinary care or seamanship on the part of the Smalley could prevent. Plaintiff's case dismissed, but without costs to either party. Decree accordingly. For notes to cases on collision at sea see ante, p. 24 and p. 78. It will be noted that The Love Bird, 6 P. D. 80 (1881) was pressed and relied on by respondent's counsel in the principal case. It is submitted the cases of The Fanny M. Carvell, 13 App. Cas. 455 n., and The Duke of Buccleuch, 15 P. D. 86 s. c. (1891) A. C. 310, must now be taken as the authoritative exposition of 36 & 37 Vic. c. 85, sec. 17. PLEADINGS. In the case of The North American, Swa. 358 s. c. 12 Moo. P. C. 331, it was held that a party proceeding must recover secundum allegata et probata, if he recover at all; and that, therefore, in a case of collision, the party suing cannot recover in full if he fails to prove the case set up in his pleading and evidence, although no fault be proved against his vessel, and fault is established against the other vessel. This doctrine was confirmed and extended in The Ann, Lush. 55 s. c. 13 Moo. P. C. 198. This was a case of collision in which the plaintiff alleged in his petition that the damage was caused by the defendant's vessel starboarding her helm. It was held that the plaintiff, on the true state of facts, was entitled to recover, yet was barred from recovering because the starboarding of the defendant's vessel was not proved. Lord Chelmsford, delivering the judgment of the Privy Council, at p. 56 of the report in Lushington, says: "Now it is a rule, and a most important rule, to be observed in all courts, that a party complaining of an injury, and suing for redress, must recover only secundum allegata et probata. There is no hardship or injustice in adhering strictly to this rule against the complainant, for he knows the nature of the wrong for which he seeks a remedy, and can easily state it with precision and accuracy.But great inconvenience would follow to the opposite party unless this strictness was required, because he might constantly be exposed to the disadvantage of having prepared himself to meet one state of facts, and of finding himself suddenly and unexpect edly confronted by another totally different. The great object of all courts where trials of fact take place ought to be to bring the parties to a distinct agreement as to what is in contest between them, and this object would be entirely frustrated if it were competent to a party to place his right to redress on one ground and then to abandon it at the trial for another, although the latter ground would originally have given him a right to recover against the other party." The defendant may plead a particular fact, and is not concluded if he fails to prove it, but the plaintiff must establish his case according to his pleadings and evidence. The East Lothian, Lush. 241. See also a very valuable note on this subject in W. & Bruce (ed. 1886), p. 349, et seq. 1885 THE EMMA K. SMALLEY. 1886 ނ Nov. 9. THE BORZONE-GOGORSO. Necessaries—Wages-Priority of Claims. A vessel having been arrested and sold under a decree of the Court for necessaries, and the money brought into the registry, Held :— That the seamen had a right to be paid before the plaintiff who had obtained the decree. The Borzone, an Italian ship, about July, 1886, took on board at Chatham, N. B., a cargo of deals, bound for Marseilles, France. The vessel sailed for France from Chatham, aforesaid, in the month of July, but having been damaged by a storm shortly after sailing, was compelled to put back to Chatham for repairs. The cargo of deals was partly discharged on the wharf of Henry A. Muirhead, the plaintiff in this suit, and for which the captain of the vessel agreed to pay wharfage. A warrant was issued out of this Court in the month of September, 1886, at the suit of Muirhead in a cause for necessaries supplied at the request of the master. The claim was made up of wharfage, surveys, and an account of $700 held by George Watt, of Chatham, against the vessel for advances made at the captain's request, and which on the same request was paid by Muirhead. Prior to the arrest of the vessel in this suit the master had drawn a bill of exchange upon M. Gaillard, of Marseilles, and which was accepted by him, and paid for disbursements of the ship before her arrest. Upon the arrest of the vessel, the captain being wholly unable to raise funds to repair her or to discharge her liabilities, the plaintiff, the seamen, the mate, the master, and the holder of the bill of exchange claimed priority of payment. several claimants applied to be allowed to intervene and become parties to the suit. This was refused, but on the suggestion of the judge, and the consent of parties, a decree of sale was made at the suit of Muirhead. The vessel was sold under the decree of the Court and the proceeds brought The into the registry to be paid out as the rights of the respective claimants might appear. The amount was insufficient to pay all claims in full. C. A. Palmer, for the plaintiff in the suit for necessaries, contended that the decree already obtained in favor of Muirhead should be paid first. He cited Manfield v. Maitland (1); Hicks v. Shield (2). Advance freight is not recoverable back. Lowndes on Ins., secs. 29-32; Maclachlan on Shipping, 542. The Karnak (3). C. W. Weldon, Q. C., for the holder of the bill of exchange, does not deny advance freight cannot be recovered back, but where, by the default of the shipowner, the contract is put an end to, not by perils of the sea, it is a recission of the contract, and his client, having advanced the money to pay disbursements, is entitled to rank on the fund in Court. The vessel cannot now earn her freight, and the owners are responsible for the loss of freight. His client now stands in the same position as Mr. Watt and others who made advances. The Markland (4); The Fairport (5). W. C. Winslow, for the master and seamen, contended that wages are a first claim, and must be paid before all others. Cites The Madonna D'Idra (6), where a Greek mariner was allowed subsistence money and means to return home. The Jane (7); The San Jose Primeiro (8). Foreign seamen, employed out and home again, are entitled to passage money to return home. The Elizabeth (9); The Proridence (10). As to the case of the master, if he had known he was signing away his lien when he gave draft or ordered necessaries, he would not have done so. Kay on Shipping, vol. 2, 1137. Seamen should have wages up to time of This is laid down in The Elizabeth, supra, and the same applies to the master. arrival home. WATTERS, J. In this case the ship has been sold in a cause of necessaries and the proceeds brought into the 1886 THE BORZONE. |