1856. March 14. Judgment. Deane opposed this motion on behalf of Crosse's parties, contending that no freight had become due at the time the salvage service was rendered. DR. LUSHINGTON overruled Crosse's objection and assigned him to bring in an account of freight on oath, and specification of names of the owners of the cargo as prayed. Rothery, proctor for the salvors. Crosse for the owners. March 18. Judgment. THE NYMPH, F. M. FENENGA, Master. Master's Suit for Wages-Responsive Allegation-Liability of Purchasers. The purchaser of a ship takes her with the liabilities attached by law-seamen's wages-bottomry bond-demand for salvage; and his remedy must be against the vendor. THIS HIS was a suit promoted by Fenenga, the late master of the vessel, for wages. The action was entered in the sum of 54l. 158. 2d. The petition given in by the master claimed wages due for service on board the said vessel, then the Twee Gezusten, from 10th February, 1854, to the 28th of April, 1855, when she passed into other hands at Cardiff, and when he was discharged by the present owners or their agent. The allegation on behalf of Richard and Henry Burton, the present owners, asserted a settlement of accounts and wages to have been made at Cardiff, between Jong, the former owner of the Nymph, and Fenenga, the master. This was admitted without opposition. The present question was on the admission of a responsive allegation on behalf of the master, counterpleading the settlement of accounts asserted to have been made at Cardiff between Jong and himself, and explaining his connection and dealings with Jong. Addams appeared in opposition to the allegation. Bayford in support of its admissibility. DR. LUSHINGTON:-It appears to me that the objection pressed by Dr. Addams, as to the amount at which the action is en 1856. March 18. of a vessel takes it with all its liabili ties, is against the tered, cannot be sustained-certainly not in this stage of the case, because the action being entered at above 501., I cannot enter into a preliminary investigation as to whether this may not be reduced to a smaller sum in the further proceedings in the case. I must presume that the action having been entered for above 50l., 501. might be recovered; therefore I give no opinion as to the statute which imposes upon the Court the duty of not entertaining a suit by a mariner where the sum does not exceed 501. With regard to this case, it ought to be remembered that those who purchase ships stand in a different position from those who purchase other articles; for where a man purchases The purchaser a ship he takes it with all the liabilities that attach to it in law, and if he would protect himself against those liabilities, he must do so by a guarantee, or by some other mode, that he may not be injured by latent demands. If the ship be sold, she is always subject to any demand for seamen's wages for any period of time during which the law allows a suit to be brought. She is subject to a bottomry bond, and to a demand for salvage; therefore it becomes the duty of those who purchase ships to take care with whom they deal. There can be no doubt whatever, that if a purchaser takes a vessel as free from liabilities, and his remedy and liabilities attach to her, he has a remedy against the vendor; vendor. and it cannot be considered a case of hardship, when he knows what the law demands, and what he needs for his protection. This is a demand for wages. The summary petition is brief enough, and sets forth only the facts on which a summary petition is generally founded. In answer to that a long allegation has been given in, of which the Court has no reason to complain. The substance of it is-not to enter into particulars-that there had been a settlement with the master; that the master had been fully paid the whole of his demands against the ship; that he voluntarily gave up possession of her, free of all demands on his part-in other words, that if he had other demands on the ship by the law of Holland or the law of England, he waived them, and the parties are entitled to say that he cannot proceed against the ship. That allegation was admitted without opposition, and it is certainly competent to the master to contradict all the main averments in that plea. It appears to me-having looked at this allegation with considerable attention-that the master was entitled to plead these facts, because the substance of the plea is that he never had received payment. at all. So that his statement is, "I never have received payment at all; all your statements as to my having received payment are erroneous in point of fact. It is true bills of exchange were offered to me at various times, but it is also true that I rejected 1856. March 18. those bills of exchange as being utterly worthless. With regard Bayford, proctor for the master. Ring for the owners. April 17. THE VIVID, J. WATSON, Master. Collision-Collier at Anchor-Mail Steamer-Rate of Steaming-Lights. Neglect of the Admiralty regulations, as to placing light at mast-head, will not prevent a vessel from recovering, unless it appears that the collision was occasioned by such neglect. It is no excuse for a vessel steaming at the rate of twelve knots, on a dark night, through a fairway, where vessels are accustomed to anchor, that she was under contract to carry Government mails at the rate of thirteen knots. THIS HIS was a suit promoted by the late brigantine Henry, of the burthen of eighty-nine tons, against the steam-vessel Vivid, to recover for a total loss, occasioned by a collision between them, at 11:30 P.M., on the 11th August last, in Dover Roads. The brigantine, coal laden, was bound from Newcastle to Rouen, and had brought up opposite to the entrance to Dover Harbour. According to her account, she immediately hoisted a signal lantern under the boom of the foresail, about four feet on the starboard side of the foremast and about twenty feet above the bulwarks. There was also a bright fire in an open caboose in the galley. The night, although dark, was clear. The steamer, of the burthen of 300 tons, with engines of 120-horse power, carrying the mails from Dover to Calais, was seen rapidly approaching, and was instantly hailed, but no notice was taken, and the steamer struck the brigantine with such violence that she filled, and the master, mate, and a boy were drowned. The steamer, as alleged, was proceeding at the rate of twelve miles an hour. The steamer pleaded in her defence that she was under a contract with her Majesty's Government to convey the mails at the rate of thirteen miles an hour; that at the time in question she saw almost under her bows a dark object, whereupon the master called out, "Hard aport," two or three times, " Ease her," "Stop her," and "Turn her astern;" but, notwithstanding such orders were instantly obeyed, she ran into the brigantine. She contended that anterior to, and at the time of the collision, the brigantine had no light exhibited so as to be visible to any one on board the steamer, and that if she had a light, it was not suspended in accordance with the Admiralty regulations. Jenner and Bayford were heard for the brigantine. Haggard and Robertson for the steamer. The Court was assisted by Captain Weller and Captain Pigott. 1856. April 17. the result of DR. LUSHINGTON, addressing the Elder Brethren, said :— Judgment. Gentlemen, you are so entirely masters of the evidence in this case, and have paid so much attention to the arguments of counsel, that I shall not trespass upon your time further than my duty imperatively requires me to do. I shall merely call your attention to the questions which you will have to determine, and to the bearing of the law on those questions. The collision Collision not took place on the 11th of August last, and was attended not inevitable merely with loss of property, but a melancholy loss of life; and the accident. question which we have now to discuss is, which of the parties were to blame for this collision?-for it is not a case of inevitable accident. On the part of the brigantine it is alleged that the Case of the brigantine. collision was entirely owing to the want of a good look-out, or other the default of those in charge of the steam-vessel-for that, at the time thereof, the light, so as aforesaid suspended to the boom of the foresail of the brigantine, and the fire in the galley, were burning brightly, and were distinctly visible from the steamer, and, if a good look-out had been kept, might have been seen by the crew of the steamer at a sufficient distance to have enabled the steamer to alter her course and so avoid the collision. In answer thereto it is pleaded on behalf of the Vivid in the Case of the following words :-"The collision was occasioned by the brigantine having been brought up, or permitted to drive to and in the fairway of vessels leaving Dover Harbour for Calais, it being well known that the steam-packets run with the mails steamer. 1856. April 17. Was the brigantine anchored in a proper place? no doubt that there was a light hoisted on board the brigantine. between Dover and Calais and Dover and Ostend by night, and otherwise by the want of caution or neglect on the part of those on board the brigantine, in not showing a proper light, in accordance with the Admiralty regulations; and that the collision was not imputable to the steamer." Now it appears that the brigantine was a vessel heavily laden with coals, and about nine o'clock on the evening of the 11th of August she came to anchor in the neighbourhood of Dover. It will be for you to consider whether that was a proper place for anchorage or not. According to the evidence it appears to have been a place in which a vast number of vessels were accustomed to anchor. It is said, on the other hand, it was in a fairway-and I presume, from the whole of the evidence, that it was. Whether or not it is a just cause of blame to bring up in an anchorage ground, which is also a fairway, is a question for your consideration. The vessel being so anchored, the next question that arises is, whether any light at all was hoisted on board the There can be brigantine? Of that I think there can be no doubt; indeed, it is not denied by the owners of the Vivid that there was a light at one period, though it is said it was not burning at the time in question. We must therefore direct our attention to that. How does the evidence stand? One witness swears that it was actually burning, and we have an affidavit from two or three persons on shore that at half-past eleven o'clock they actually saw this light. There is also the evidence of other witnesses to the same effect. You have it in evidence that the light was properly trimmed, and therefore the ordinary presumption, and the presumption of law is that, if nothing particular occurred to the contrary, the light continued to burn. This being so, you will have to take into your consideration what I think is by far the most important question on the present occasion, that is, how the light was placed. Its position is described by those on board the brigantine in the following words. It was a signal-lantern made of glass, and was lighted and trimmed with a sufficient length of wick and the proper quantity of oil, and was hung up under the boom of the foresail, about four feet on the starboard side of the foremast, and about twenty feet above the bulwarks of the brigantine. If it should turn out that the light so hoisted was not in so advantageous a position as if it had been at the masthead, then that will account for the evidence given by various persons on board the Vivid that they did not see it. You will have to consider and compare the evidence as to the exhibition of the light, and the negative evidence by persons that it was not seen, and you will take that into account with the probabilities of the case to which I am about to direct your attention. Was it in a proper place? |