Collision-Steamer-Starboard side of Mid-Channel—“ Wilful default" of Master - Pleading 17 & 18 Vict. c. 104, ss. 297, 299. - The owners of a steamship are responsible for damage caused by the act of the master in not observing the 297th section of the Merchant Shipping Act, 1854, which prescribes keeping to the starboard side of the mid-channel, notwithstanding the 299th section declares that the damage in such case shall be deemed to be caused by the wilful default of the person in charge of the deck. The Druid (a) distinguished. The 297th section is not to be controlled by any custom resting on mere convenience, even the convenience of public officers, as Custom-house officers, in the discharge of their duties. The Fyenoord (b) followed. Semble. A defence in law which might have been raised in the pleadings, and was not so raised, cannot be afterwards relied upon at the hearing. THIS THIS was an action of collision brought by the owners of the steam-tug Victory against the steamship Seine, and her owners the General Steam Navigation Company, intervening. The Victory was lying at anchor in the Thames a little below Gravesend, and inside the line of coal-hulks on the south side of the river. About 7 A. M., on the 6th October, she got under weigh, and steamed out between two of the coal-hulks standing to the northward, in order to pass between two vessels lying outside the line of coal-hulks, and speak another steamer belonging to the same owners. The weather was fine and clear, the tide ebb. The tug was steaming about four knots an hour. On issuing between the coal-hulks the Seine was observed a mile off coming up the river on the north side; on approaching the opening between the two vessels the Seine was standing across the river, at about twelve knots an hour, under her starboard helm, in a direction for the tug's starboard side. The master of the tug, seeing a collision was imminent, put on at full speed in order to clear the bows of the Seine if possible; but the Seine came straight on, and, striking the tug on her starboard quarter, sank her immediately. The allegation pleaded that the collision was caused by the Victory suddenly shooting out from between the coal-hulks and crossing the bows of the Seine; and that the Seine, although her (b) Ante, p. 374. (a) 1 W. R. 391. 1859. February 22. 1859. February 22 helm was ported and the engines reversed, could not avoid the collision. It also pleaded that the Seine was brought gradually over to the south side of the river "in order to her approaching as near as conveniently might be to the station off the Customhouse at Gravesend, appointed by the Lords Commissioners of her Majesty's Customs, as that for all steamers from foreign parts arriving in the port of Gravesend to take on board their Customhouse officers, pursuant to the provisions in that behalf of the 8 & 9 Vict. c. 86, such being also the well-known and recognized course of navigation for all steamers arriving in the said port of Gravesend from any foreign parts for that purpose, pursuant to the statute aforesaid." The 12th section of 8 & 9 Vict. c. 86, enacts, "That every ship shall come as quickly up to the proper place of mooring or unlading as the nature of the port will admit, and without touching at any other place; and in proceeding to such place, shall bring to at stations appointed by the Commissioners of Her Majesty's Customs for the boarding of ships by the officers of the Customs." It appeared in evidence that many steamers and other vessels cleared on the south side of the river, and an officer from the Customs' department deposed that in rough weather it was dangerous to cross the river in boats. Deane, Q.C., and Wambey for the Victory. The Seine was on her wrong side of the river. The convenience of Customhouse officers cannot override an Act of Parliament. Addams, Q.C., and Robinson for the Seine. The Seine was not "navigating" within the meaning of section 297 of the Merchant Shipping Act. The custom and necessity for the custom are sufficiently proved. But even if the Seine was violating section 297 in being on the south side of the river the owners are not responsible, because section 299 declares that the violation of the statute shall be considered the "wilful default" of the officer in charge, and owners are not liable for the wilful act or default of their servants; Druid (a). Deane, Q.C., in reply. DR. LUSHINGTON, to the Elder Brethren. I think the Court has some reason to complain of the conduct of one of the parties in raising a point of law that is not stated (a) 1 W. R. 391. 1859. February 22. Objection that navigating the wrong side of the river was a wilful default for which the not liable, over cause contrary sal practice of the Court and Council. the Privy cause not well founded. The Druid, 1 W. R. 391, distinguished. in the pleadings. Dr. Addams has contended, that assuming the crossing over to the south side of the river was a violation of the 297th section of the Merchant Shipping Act, the owners of the Seine are not liable, because the 299th section declares that "in case any damage to person or property arises from the non-observance by any ship of any of the said rules, such damage of the master, shall be deemed to have been occasioned by the wilful default of owners were the person in charge of the deck." Certainly this is a proposition red. 1. Beof transcendent importance, because, if the argument be right, cause not this Court has been wrong a hundred times, and so have their pleaded. 2. BeLordships in the Privy Council; and not only wrong with regard to the univerto ships keeping the starboard side of mid-channel, but wrong with regard to the exhibition of lights, and wrong with respect to the rule of port helm given in the 296th section. It would be unfortunate, indeed, if we had all been in error from the time this statute was passed up to the present period. But this objection in law is not raised in the pleadings. The owners of the Seine have not repudiated the act of the master, they justify it. In the case of the Druid I was obliged, though very reluctantly, to come to the conclusion that the owners of a steamer were not liable for the act of their master in wilfully running into another vessel; but that was an act of a very different complexion from this, for the master was not acting within the scope of his ordinary duty, and the act was altogether illegal and with an illegal intention; and there the owners repudiated the act. The rule of law is, as stated in the earlier cases, "that for the careless performance of a legal act the master of the servant is responsible;" here the master of the Seine was navigating the steamer within the sphere of his ordinary and lawful business. I have, therefore, no hesitation in overruling the objection; 1st, because it is not raised in the plea; 2ndly, because it is contradicted by the practice of this Court and the Privy Council; 3rdly, because it is not, in my judgment, in itself well founded. The counsel for the Seine, however, seek to justify the crossing Justification by over to the south side of the river; 1st, by the custom of steamers custom not proved. from foreign parts clearing to the southward; and, 2ndly, by the alleged danger to the Customs' officers in crossing the river to the northward. The custom, even if it could be entertained as any valid justification, is, in my opinion, not proved; it is not proved to be uniform, and is, therefore, no custom in law. Next, warrant deis there any pretence for saying that the Seine was prevented parture from from obeying the Act of Parliament by any danger that the Cus- the statute; tom-house officers would have incurred? For we must look to the Act of Parliament. The Act says, "Every steamship, when The custom itself not valid, there being no danger to 1859. February 22. navigating any narrow channel, shall, whenever it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such steamship." The question, therefore, is, Was it not safe and practicable for the steamer to have kept to the north side of the river? If it had been shown that crossing the river in boats was generally dangerous, say ninetynine times out of a hundred, there might be some force in the argument, though even then the dangers arising from a departure from the rule of navigation would have to be considered on the other side; but, in fact, it is only dangerous to cross the river on a few and the conve- stormy days, and this was a fine morning. With the mere convenience of the Custom-house officers we have nothing to do. This has been already decided by the Privy Council in the case ground to sup- of the Fyenoord (a), where their Lordships also held, that, although a foreign steamer might not be bound by the rule of the statute, a custom of navigation must be considered to have emanated from the statute which the foreign vessel was bound to obey. nience of Cus tom-house officers not being sufficient port it. Seine alone to blame. Turning to the case of the Victory, the only questions are, whether she kept a due look-out, whether she was justified in holding on when she observed the Seine, and whether she took the proper measures to avoid the collision. DR. LUSHINGTON, on returning from consultation with the Elder Brethren-We are all of opinion that the entire blame of this collision rests with the Seine. Deacon, proctor for the Victory. Toller for the Seine. (a) Ante, p. 374. THE GLENTANNER. Master's Wages-Mortgagee-Counter Claim-Judgment Debt on Dishonoured Bill-17 & 18 Vict. c. 104, s. 191. In an action of master's wages, a mortgagee intervening and declaring to setup a right of set-off or counter-claim, but not filing any such counter-claim in the Registry, but only a statement that he "objected to all the claims in the master's account, except those relating to the payment of wages, and the wages claimed," must submit to a settlement of all the accounts between the master and the ship, exclusive of any private account between the master and the owner in respect of extraneous matters. In this settlement the amount of a bill drawn by the master on the owners for the ship, and dishonoured by them, for which judgment has been recovered against the master, but execution not levied, is to be taken into account. THIS HIS was an act on petition in objection to a report of the Registrar and merchants. The question at issue was the interpretation of the 191st section of the Merchant Shipping Act, 1854. The action was brought by the master of the English ship Glentanner for his wages, against the ship and freight. An appearance was given by Messrs. Vaughan and Schofield, the mortgagees of the ship in possession, and they declared to set up a right of set-off or counter-claim. The master was thereupon assigned to bring in his accounts and vouchers, and the case was referred to the Registrar and merchants. The Registrar and merchants reported as follows: "To the Right Honorable Stephen Lushington, &c. Whereas on the 18th day of September, 1858, the proctor for and on behalf of the said Messrs. Vaughan and Schofield having declared that his parties would set up a right of set-off or counterclaim to the wages proceeded for in this cause, the Worshipful Samuel Jewkes Wambey, Doctor of Laws, one of your surrogates, was pleased to refer the claim of Benjamin Bruce (F. Clarkson's party), together with all accounts and vouchers brought in or thereafter to be brought in relative thereto, to your Registrar, assisted by merchants, to report the amount thereof: and whereas the proctor of the said Benjamin Bruce subsequently brought in his accounts and vouchers, and the proctor for the said Messrs. Vaughan and Schofield alleged that he objected to the claim and account-current brought in, as containing accounts which have not arisen, and are not outstanding or unsettled, between the parties to the proceeding, and prayed to be heard on his petition in objection thereto; and you were pleased to reject 1859. March 2. |