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An inevitable accident, in view of the law, is that state of cirTHE MINNIE cumstances which could not have GORDON. been avoided by the exercise of ordinary skill, ordinary caution, and diligence. It is not necessary that there should be extraordinary skill, or extraordinary precaution; but if the accident could have been avoided by ordinary skill, diligence, and precaution, then it is not inevitable accident. Kay on Ship., vol. 2, 912. But an accident is not inevitable merely because it could not be prevented at the very moment at which it occurred. When it might have been prevented, if proper and reasonable measures had been previously taken, it is not inevitable.

In Maclachlan on Ship. (ed. 1892), p. 324, it is laid down that if the damage is done under circumstances in which it is not avoidable by ordinary care and skill, or common foresight, the loss lies where it fell. To the same effect see W. & Bruce (ed. 1886), 85. The catching of a cable on a windlass in running out may be an inevitable accident. The Peerless, Lush. 30. The term as applied to a collision means a collision which occurs when both parties have endeavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident.

Union Steamship Co. v. New York,

etc., Steamship Co., 24 How. 307; The Margaret, 2 Stuart 19; The McLeod, ibid 140, The defence is never admitted except when the evidence shows that neither vessel was in fault. Ibid. See also The Batavier, 1 Spks. 378 s. c. 2 W. Rob. 407; The Europa, Br. & Lush. 89 s. c. 2 Eng. L. & Eq. 557; The Mellona, 5 N. of Cas. 450 s. c. 3 W. Rob. 21. In the case of The Bolina, 3 N. of Cas. 208, Dr. Lushington says: "With regard to inevitable accident, the onus lies on those who bring a complaint against a vessel, and who seek to be indemnified. On them is the onus of proving that the blame does attach upon the vessel proceeded against." See also The Virgil,

2 W. Rob. 205. As to what is inevitable accident, see also the cases in Nova Scotia. The Chase, Young Ad. Decisions 113; The Richmond, ibid 164. To support a plea of inevitable accident the burden of proof rests upon the party pleading it, and he must show, before he can derive any benefit from it, that the damage was caused immediately by the irresistible force of the winds and waves; that it was not preceded by any fault, act or omission on his part as the principal or indirect cause; and that no effort to counteract the influence of the force was wanting. The Agamemnon, Cook 60. Such a plea cannot be sustained by a ship sailing seven knots an hour

ibid 275. In the case of The Hunter and The Amity's Friendship, Marsden's Ad. Cas. 322, Sir Thomas Salusbury held that the loss was merely accidental, and therefore gave no damages or costs on either side; so also in the case of The Three Relations and The Britannia, ibid 331, Sir James Marriott gave a similar judgment. In The Marpesia, L. R. 4 P. C. 212, it was held that where, in a case of collision, the defence is inevitable accident, the onus of proof lies, in the first instance, on those who bring the suit against the vessel, and seek to be indemnified for damage sustained; and does not attach to the vessel proceeded against until a prima facie case of negligence and want of due seamanship is shown. It is also laid down in the same case, following the decision in The London, Br. & Lush. 82, that it is a rule of the Admiralty Court, in cases of inevitable accident, to make no order as to costs unless it can be shown that the suit was brought unreasonably and without sufficient prima facie grounds. See also The Swansea, 4 P. D. 115. A sail

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ing ship in a gale drove from her anchors and came into collision after sunset with a brig at anchor. The ship had only her GORDON. anchor light exhibited. Held an inevitable accident, and no costs given on either side. The Buckhurst, 6 P. D. 152. See also The Itinerant, 2 W. Rob. 236 s. c. 3 N. of Cas. 5; The Ebenezer, ibid 206; The Shannon, 1 W. Rob. 463. But there may be circumstances under which, in a case of inevitable accident, the vessel proceeding may be condemned in costs. The Thornley, 7 Jur. 659. In the case of The Washington, 5 Jur. 1067, Dr. Lushington ordered the damages, costs and expenses of both parties to be thrown together and to be equally divided, as was done in Hay v. Le Neve, 2 Shaw (Sc.) App. Cas. 395; The Monarch, 1 W. Rob. 24. Since the Judicature Acts in England the Court, in cases of inevitable accident, will use its discretion as to costs. The Innisfail, 3 Asp. N. S. 337. Α defendant succeeding on that ground will be entitled to his costs. Ibid. A discretion as to costs is also given to the judge in the Canadian Admiralty Courts. See rules of 1893, Nos. 132 and 133. The case of The Leda, Br. & Lush, 19; s. c. 32 L. J. Ad. 58; 32 L. T. N. S. 58, is a leading one on the question of costs, where the Crown is a party. Prior to the Imperial

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Statutes, 18 & 19 Vic. c. 90, the Crown was not liable to pay THE MINNIE costs. This was laid down in GORDON. the House of Lords in the case of The Lord Advocate v. Lord Douglas, 9 Cl. & F. 173. And after the passing of that Act it was held in The Leda, supra, that it only authorized costs to be given to or against the Crown in proceedings in which the Attorney General or Lord Advocate is a party. The case of The Leda is instructive, as it declares the law in the several courts both before and after the passage of 18 & 19 Vic. c. 90. Dr. Lushington, in delivering judgment, at p. 25, says: "In the Admiralty Court, the Crown neither gave nor took costs. Such was my decision in the

case of the Duke of Sussex, 1 W. Rob. 270-a decision founded upon the practice of the courts of common law, and the doctrine generally acknowledged in the profession. It is customary, however, for the Crown to give costs as a matter of grace. They are given, however, against co-plaintiffs with the Crown. The Swallow, Swa. 30, and in informations before the statute, a relator was added for the express purpose that costs might go with the decree. The injustice of making subordinate parties liable for the whole costs is, after all, only an apparent one; they will, no doubt, be indemnified by the Admiralty," The Leda, supra, P. 27.