1859. May 12. In the High Court of Admiralty. THE SCHWALBE. Collision-Exceptive Allegation-Practice. In a cause of collision, an exceptive allegation, and the examination of witnesses thereon, will be suspended until the evidence in the principal cause is printed. Tof Addams, Q.C., now moved to suspend the exceptive allegation and the examination of witnesses thereon until after the printing of the evidence in the principal cause. Wambey, contrà.-The affidavits show that the witnesses are about to leave the country immediately. The application also is too late, according to the rule of the new practice, 31st December, 1855:"Upon any libel or allegation being given in, an assignation shall be made upon the adverse proctor to bring in his responsive allegation thereto on some day to be then fixed by the Judge or Surrogate; and the libel or allegation so given in shall stand admitted, unless the adverse proctor shall, within four days from the giving in of the same, declare in Acts of Court that he opposes the admissibility thereof." DR. LUSHINGTON :-With regard to the practice of the Court Judgment. in exceptive allegations in causes of collision, I believe no series of precedents can be found: so far as I remember, there have been hardly more than two in the course of thirty years. The Court will be loth to follow the rules formerly followed in the Court of Arches and other Courts, as the Court, though compelled to receive exceptive allegations and to give effect to them, if Exceptive alleduly substantiated, the Court cannot but view them with jealousy, gations to be as opposed to the common process of justice. In the present case jealousy. it does not appear that all the witnesses have yet been examined, which would be a fatal objection to any further immediate proceeding on the exceptive allegation; but, even if this were otherwise, I should decide as I now do, that all proceeding upon the viewed with 1859. May 12. exceptive allegation be suspended until the evidence in the principal cause is printed, and the Court is fully possessed of all the circumstances of the case, so as to decide whether an exceptive allegation is admissible. May 13. THE ARGO, BENSON, Master. Collision in narrow Channel-Steamer in charge of Pilot- The pilot has sole charge of the navigation of a ship; if he takes a steam vessel The trim of a ship is within the province of the master; if, therefore, a ship is not in THIS THIS was an action of collision, brought by the owners of the British brig Welthen, against the steamship Argo and her owners, the European and American Steam-Shipping Company, intervening. The collision occurred at 4.15 P.M. of the 7th of November, 1857, in the river Thames, opposite Erith. The Welthen was drifting up the river, in about mid-channel, with scarcely steerage way, the wind being very light, and the tide flood. The Argo was going down the river at half-speed, in charge of a licensed pilot. In consequence of many vessels being anchored on the south side of the river, and many others drifting with the tide, it became, according to her statement, dangerous to keep to the south of mid-channel, and the Argo was therefore, by direction of the pilot, kept rather over to the north side. The Welthen being observed ahead, driving athwart the river, with her head to the Essex shore, the pilot ordered the helm of the Argo to be put astarboard; but finding the force of the tide prevented the steamer from clearing the Welthen ahead, he then ordered the helm to be put hard aport, and the engines to be stopped and reversed, in order to go under her stern. These orders were executed, but the Argo nevertheless struck the Welthen a sliding blow on her port quarter, and upset a boat astern, whereby two men were drowned. The owners of the Argo pleaded-1. That the collision was an inevitable accident caused by the strength of the tide. 2. That the collision was the act of the pilot only, for which the owners were not responsible. In the evidence of the pilot, it also appeared that the Argo was at the time in ballast, and rather down by the head, which prevented her answering her port helm so rapidly as she would otherwise have done. Addams, Q.C., and Twiss, Q.C., for the Welthen. The proof that it was dangerous to keep to the south shore is insufficient. If so, the owners of the Argo are responsible, because it was the duty of the master to have interfered with the pilot, to prevent the Act of Parliament being violated. The owners are also liable for having their vessel in an improper trim, which conduced to the accident. The Queen's Advocate and Spinks for the Argo. This was an inevitable accident. The pilot was warranted by danger in departing from the strict rule of the Act of Parliament. The pilot only was responsible for the navigation of the ship; it was not for the master to question the opinion of the pilot as to what was dangerous or not. The vessel may not have been in the handiest trim possible, but that is not required; she is only required to be in ordinary safe trim, and she was in that condition. Addams, Q.C., in reply. 1859. May 13. The Right Hon. DR. LUSHINGTON, to the Elder Brethren :The facts of this case are, that the Argo, a large steamer, going down the river Thames in broad daylight, thinks fit to keep to the north side of the mid-channel, and runs into the Welthen brig, which was drifting with the tide without steerage way. The defence is-1, That the collision was an inevitable accident; 2, That it was caused by the act of the pilot alone. I think it Collision not is impossible to say that the collision was an inevitable accident, accident. an accident which could not have been avoided by ordinary care and skill. The brig was seen in ample time to have been avoided, and the tide or current was not such that the steamer was out of command. The next question is, whether there was justifiable cause for departing from the rule of the Act of Par an inevitable 1859. May 13. No sufficient cause proved for departing from the statutory rule. The master however was not bound to interfere, and prevent the pilot taking the ship to the port side of the mid channel. liament, which directs a steamer to keep to the starboard side of the mid-channel, where safe and practicable. Unless you are satisfied that it was neither safe or practicable for this steamer to have kept to the south of the channel, the Act of Parliament has been violated. The inclination of my own mind upon the evidence is, that the circumstances proved do not establish any justification for departing from the rule of the statute. It has been argued, however, that supposing this to have been the case, the master ought to have interfered. That is a matter which must always be treated with great caution. I have said on many occasions, and my ruling has been confirmed by the Judicial Committee in the case of Hammond v. Rogers (a), that a master has no right to interfere with the pilot, except in cases of the pilot's intoxication or manifest incapacity, or in cases of danger which the pilot does not foresee, or in cases of great necessity. The master of the Argo says, "It is not my province to take notice of the course of the ship, or on what shore she is navigating. She may be taken here or taken there, while she is in charge of the pilot, without my knowing the cause; there may be reason under water why the pilot does it. All my duty is, to take care that all the pilot's orders are promptly and properly obeyed;" and I think he says so rightly. The navigation of the ship is taken out of the hands of the master and transferred to the pilot. I am of opinion that the master was not bound to interfere to prevent his vessel being taken by the pilot to the north side of the mid-channel. The only remaining question is, whether the trim of the steamer contributed to the collision, and whether the owners are on that account liable for the damage. The only evidence to show that the steamer was in faulty trim, is that of the pilot, who deposed before the coroner, with the fear of a prosecution for manslaughter hanging over his head; no doubt he was strongly actuated by a desire to acquit vessel in ordi. himself of all culpability. You must form your own opinion to what extent the steamer was out of trim, and whether it contributed to the collision. If she was out of ordinary safe trim, so that she was carried by the force of the tide or current more than a ship in ordinary safe trim would have been, and this helped to bring about the collision, the owners are responsible for the damage, the trim of the ship being within the province of the master; but if she was in ordinary safe trim, then, although she might have been in handier trim, and although the trim of the ship in part contributed to the collision, they are not responsible. The trim of the ship is in the province of the master: owners are bound to navigate their nary safe trim. (a) 7 Moore, P. C. 171. DR. LUSHINGTON, on returning from consultation with the Elder Brethren : : 1859. May 13. blame. We are of opinion that the pilot of the Argo was solely to Pilot of the blame for the collision, and that the trim of the steamer was the Argo alone to ordinary trim, and did not contribute to the collision. I shall therefore dismiss the Argo, but as usual in cases of this kind, without costs. Clarkson, proctor for the Welthen. Pritchard for the Argo. THE CALLA, -TREBLE, Master. Collision-Coloured Lights-Admiralty Regulations, 1858- In a cause of collision, if the collision was caused by one of the vessels not having carried a coloured light fixed, as required by the Admiralty Regulation, 1858, the owners will be found to blame, unless they prove that, in the circumstances, it was impracticable to observe the rule. COLLISION. Both vessels were British ships. The col lision took place on the night of the 27th January, 1859. The Calla pleaded that, owing to the wind being a heavy gale, and to a strong sea frequently breaking over the vessel, it was found to be impracticable to keep her green and red lamps fixed as appointed by the Admiralty regulation, but that the said lamps were kept lighted on deck ready for instantaneous exhibition when required; and that on the Dora (the vessel proceeding in the cause) being descried on the port bow the red light was immediately shown over the side. The other facts of the collision it is not necessary, for the purpose of this report, to specify. Jenner, Q.C., and Spinks for the Dora. Addams, Q.C., and Twiss, Q.C., for the Calla. The learned Judge, in summing up to the Elder Brethren, said that the Calla, not having carried her coloured lights fixed in June 11. |