Case of

steamer on

a Queen's ship was condemned for not slowing or stopping her engines, in a case of doubt, in order to ascertain the true position of the other vessel (a).

These decisions are in cases where the steamer is the high seas. in a river or frequented channel. From the following case it appears that even on the high seas a steamer is not at liberty to proceed with very great rapidity during a fog, at any rate without taking some adequate precautions to prevent accidents. The steamer Europa, plying between Liverpool and Halifax, was running through a dense fog at the rate of twelve and a half knots an hour; she was in the same parallel of latitude with Cape Clear, and about seven hundred miles distant from it; that is, in the track for outward and homeward bound vessels trading with American ports, so that there might be more than ordinary probability of meeting vessels. A collision took place, and she sunk a sailing vessel. It appeared that no fog-horn was sounded, nor bell rung, on board the steamer; that there was only one man at the wheel, and that there was no person stationed on deck to convey orders to the engine room. Judgment was given against the steamer. If a steamer goes so fast as twelve and a half knots in a dense fog, even on the high seas, every possible precaution should be taken, said Dr. Lushington, to prevent collision. The law did not require the utmost caution that could be used; it was not so extravagant as to require more than

(a) 3 W. Rob. 79. See also the James Watt, 2 W. Rob. 277.

reasonable and customary caution; but in the present instance the look-out, and the arrangement for promptly stopping the engines or shifting the wheel, were not sufficient for a vessel going at such a speed in a fog (a).

sailing

The same principles are of course applicable to Case of sailing vessels. The ship Virgil was condemned in vessels. damages for sailing on a dark and foggy night with her topmast studding sails set (b). In another similar case, the vessel so sailing was only held excused on the ground that there were vessels in her wake, and to avoid being overtaken by them it was thought prudent to carry a press of canvas on her (c). The brig Victoria was held in fault, for running at six knots an hour at night, through a crowded anchorage ground in the Thames (d); and the Pepperell, for going at six knots and a half through a crowded fishing ground (e).

(a) The Europa, 14 Jurist, 627.

(b) 2 W. Rob. 201.

(c) The Ebenezer, 2 W. Rob. 212. (d) 3 W. Rob. 56.

(e) 1 Swab. 12. The case of the Itinerant furnishes a seeming exception to the general current of the decisions, as above recorded; an exception which must be applied with great caution. The ship Itinerant was sailing in a very dense fog with her studding sails set ; a collision ensued; and it was contended that she was in fault for not having shortened her speed. Dr. Lushington, in giving judgment, observed that it was unquestionably the duty of every master of a ship, whether in an intense fog or great darkness, to put his vessel under command, so as to secure the best chance of avoiding accidents, even at the expense of retarding his voyage; that, for this purpose, it might in many cases be his duty to take in his studding-sails,

Moving at all may be a fault.

Moving at all in a fog may in some cases be moving too fast, and so a fault. In the case of the Girolamo, where a dense fog came on soon after the vessel had passed Blackwall, Sir John Nicholl said, it seemed to be admitted that if the fog had come on before the Girolamo had left the docks, she ought not to have set out, and, if so, it was her duty, when such a fog did not come on, to have brought up. He held even that the master ought to have interposed when the pilot in charge of her would have gone on, and have insisted on bringing her to anchor (a). Although this last part of the decision, as will be seen, has since been overruled, yet in other respects this decision has recently been cited, not without approbation, by Dr. Lushington. In the case of the Wild Rose, a ferry steamer had left Seacombe Slip, in order to cross to Liverpool, at a time when the weather was tolerably clear, but a very dense fog came on before she got half-way across, and she came into collision with a

but that on this head no general rule could be laid down. In the present instance the opinion of the court was that it might have been prudent for the Itinerant to have taken in her studding-sails; but the Court and the Trinity Masters were also of opinion that the fog was so dense that the accident would have occurred, even although this precaution had been adopted. The claim against the Itinerant was acordingly dismissed (The Itinerant, 2 W. Rob. 236).

The masters of ships cannot safely be advised on the strength of this decision, that they may take less precaution in a very dense fog than in one which is not so dense. In fact, it is difficult to reconcile this decision with the remarks of Dr. Lushington in the case of the Mellona, cited in the beginning of the present chapter. (a) 3 Hagg. 174.

vessel in the river. It appeared that the steamer was going at half-speed, with her steam whistle sounding, a good look-out, and all proper precautions; and she was pronounced not to be in fault. In giving judgment, however, Dr. Lushington made the following observations :-" In the course of the argument it was hinted, though not argued, that the fog might have been so dense that it was incumbent upon the steamer not to have proceeded upon her usual occupation, because of the dangers which might result from her doing so. Had the circumstances given in evidence made out such a case, it would have been the duty of the Court to have taken cognizance of it, and to have governed its judgment according as it was proved or not proved. I wish now, as this is a matter of great importance, to make reference to the question whether steamers are at liberty to follow their avocations in a thick fog, when following that avocation might produce consequences damaging to property or to life." The learned Judge then referred to the case of the Girolamo, and said: "Perhaps I may not go quite the whole length which the learned Judge went on that occasion, but the general principle I do adopt, namely, that if there be an opportunity of stopping, instead of attempting to follow a course which would produce injury possibly to life and certainly to property, then, notwithstanding what may be the convenience of the parties, notwithstanding the urgency of the passengers, it is the duty of the persons who have the control of that steamer or other vessel to hold their hand.

Anchoring improperly.

But it is not necessary that I should decide that question now. At the time when the steamer set off upon this trip, it appears that it was somewhat clear, and that almost immediately afterwards a dense fog came on; and the question would be a complicated one, whether she was under a necessity to have gone back again under those circumstances, or whether she was at liberty to have completed her voyage." From the result, it appears that the Court, assisted by the Trinity Masters, took the latter view (a).

III. The third instance of faulty navigation consists in anchoring or mooring a ship in an improper manner. A ship which anchors too near another ship, so as to give her what is called " a foul berth," or which neglects to drop a second anchor when she ought to do so, and then in a gale drifts foul of the other vessel, will be held answerable in damages (b). In a case where a collision ensued from the parting of a steamer's cable during bad weather, the steamer was held in fault for having brought to, with a single anchor, so near a ship riding in the Mersey that the slightest accident must lead to a collision (c). In another case, a ship was condemned for having been placed aground in a tidal harbour, so near to another that, when the

(a) The Wild Rose, tried Nov. 16, 1866. See also the Borussia, Swab. 94, where a ship was pronounced in fault, simply for moving from dock to dock, on a dark foggy night.]

(b) The Volcano, 2 W. Rob. 340.

(c) The Egyptian, 8 Mitch. 496.