CHAPTER IV. PROCEEDINGS IN CAUSES OF DAMAGE. IN this chapter it is proposed to consider some rules of practice which are applicable only to causes of damage. Form of preliminary act. SECT. 1.-Preliminary Acts. In causes of damage (a), unless the judge shall otherwise order, each solicitor must, before any pleading is given in (b), file a document called a preliminary act, forms of which may be obtained in the registry, containing a statement of the following particulars :— 1. The names of the vessels which came into collision, and the names of their masters. 2. The time of the collision. 3. The place of the collision. 4. The direction of the wind. 5. The state of the weather. 6. The state and force of the tide. 7. The course and speed of the vessel when the other was first seen. 8. The lights, if any, carried by her. 9. The distance and bearing of the other vessel, when first seen. (a) Ad. Rules, 62. (b) In practice the plaintiff usually files his preliminary act with his peti tion at the same time as the defendant files his preliminary act. 10. The lights, if any, of the other vessel, which were first seen. 11. Whether any lights of the other vessel, other than those first seen, came into view before the collision. 12. What measures were taken, and when, to avoid the collision. 13. The parts of each vessel which first came in contact. Each preliminary act must be delivered into the registry sealed up (c). The usual minute must be handed in with it; on each document a fee of 5s, is payable for filing. nary act. The object of the rule requiring preliminary acts is to Object of prelimiobtain a statement recenti facto of the leading circumstances, nary act. and to prevent either party varying his version of facts so as to meet the allegations of his opponent (d). The Court will never allow a party to contradict his own preliminary act at the hearing, and an application to amend a mistake in a preliminary act should be made immediately on discovery (e). In cases where the cause is to be heard on written evidence, Opening of prelimithe preliminary acts are not allowed to be opened, save by order of the judge, until the proofs are filed (ƒ). But in cases where the cause is to be heard on viva voce evidence in open court, the practice usually adopted is as follows. As soon as the pleadings have been concluded, and the mode of taking the evidence fixed (g), the plaintiff's solicitor applies to the defendant's solicitor for a copy of the preliminary act filed by him, which is given as a matter of course. The preliminary acts are then printed by the plaintiff's solicitor with the pleadings, and the plaintiff's solicitor afterwards attends (c) Ad. Rules, 63. (d) The Vortigern, Swa. 518; The Inflexible, Swa. 33. (e) The Vortigern, Swa. 518. (f) Ad. Rules, 63. (g) See The Ruby Queen, Lush. 266; The Two Friends, Lush. 552. In the latter case the Court seems to have ordered the preliminary acts to be opened before the pleadings were for- Cause may be heard nary acts without in the registry to examine the proofs with the originals, which may then be opened without any order. If both solicitors consent, the judge may, if he think fit, on prelimi- order the preliminary acts to be opened, and the evidence to be taken thereon, without its being necessary to file any pleadings. pleadings (h). In cases where such an order is made, it is usual to have the cause heard on viva voce evidence in open court. As soon as the order has been made, and the mode of taking the evidence fixed, it seems that the plaintiff is entitled to have the cause placed in the list for hearing forthwith; it is not necessary in such cases to have the preliminary acts printed. cross cause may be heard on the same evidence SECT. 2.-Cross Causes. Although it has always been the practice (in cases of damage) where a cause and a cross cause were instituted for the parties, to agree that the two causes should be heard on the same evidence, until recently the Court had not power to order this to be done without the consent of the parties. Cause and But by the Admiralty Court Act of 1861 (), power is conferred upon the Court on the application of the defendant in any cause of damage, and on his instituting a cross cause for the damage sustained by him in respect of the same collision, to direct that the principal cause and the cross cause be heard at the same time, and upon the same evidence. It is to be observed that the statute gives the Court no power to order the pleadings in the one cause to be used in the other; but in order to save the expense of duplicate pleadings it is not unusual for the parties to agree that the pleadings and the proofs in the cause shall be used as the pleadings and the proofs in the cross cause. In such a case the defendant in the cause should take care that his answer discloses all the facts necessary to support his case in the cross cause. The agreement should be in writing, and signed by the solicitors --and on the same pleadings. (h) Ad. Rules, 64. (i) Sect. 34. for the plaintiff and defendant. It must be filed in the registry, with the usual minute. A fee of 5s. is payable on filing each document (k). done ings where the defend was ants' ship such and the is arrested ship cannot in a cross cause. Formerly it sometimes happened where a cause and a Proceedcross cause were instituted, that great injustice was where the ship of the defendant was arrested, and it not possible to arrest the ship of the plaintiff. In cases the Court had no power to stay the proceedings in the plaintiff's action, but it did its utmost to place the parties on an be arrested equality, and where in the action a decree was pronounced that both parties were in fault, it was the practice of the Court to withhold the payment of the moiety of the damage sustained by the plaintiff's ship until the plaintiff in the action submitted to the deduction of a moiety of the damages sustained by the other ship, or suffered the cross action to be prosecuted (). Now, more extensive powers have been conferred upon the Court: it is provided by the Admiralty Court Act, 1861 (m), that if the defendant in any cause of damage institute a cross cause for the damage sustained by him in the same collision, and if in the principal cause the ship of the defendant has been arrested or security given by him to answer judgment, and in the cross cause the ship of the plaintiff cannot be arrested, and security has not been given to answer judgment therein, the Court may, if it think fit, suspend the proceedings in the principal cause until security has been given to answer judgment in the cross cause. citation in cross cause Where a party is suing in a damage cause and a cross Service of cause in personam is instituted, the service of the citation in the cross cause may be made on the solicitor of the party suing in the original cause, and such service shall be suffi cient (n). Although it is the usual and proper practice for the Cross cause (k) See Prit. Ad. Digest, vol. 2, 591; The Gauntlet, Coote's Ad. Practice, 30; The Gabriel, 4 W. R. 91; The Vortigern, Swa. 518. (1) The North American, Lush. 79; The Seringapatam, 3 W. Rob. 38. (m) Sect. 34. (n) Ad. Rules, 36; see supra, p.242. may be heard sepa- defendant in a cause of damage, if he intends to sue the rately. plaintiff for damage arising out of the collision, to commence his cross action without delay, so that both actions may be tried together; yet the defendant may, if he chooses, await the result of the decree in the action brought against him before he institutes a cross action (o). When a cross action is tried after the principal action has been decided, the Court will allow the evidence given on both sides in the principal cause to be brought in as evidence in the cross cause; but fresh evidence may be taken in the cross cause (p). Costs. In the case of The Annapolis (q) there was an action and a cross action, and the evidence was adduced in the original action with an agreement that it was to be used in the cross action. The plaintiffs in the cross action failed only because the collision was occasioned by the act of the pilot of the other ship, and they were therefore, according to the usual practice, entitled to be dismissed without costs. It was held that the plaintiff in the original cause must bear the cost of the whole of the evidence. (0) The Calypso, Swa. 29. It is, however, apprehended that a plaintiff in a cross action would not be allowed to rest his case upon facts which have been alleged in his answer to the principal action, and have been found against him. In the case cited, the Court held there was no estoppel, but there the defendants in the principal action contented themselves with simply denying that their crew had been guilty of neglect. See supra, pp. 75, 76. (p) The North American, Lush, 80. See The Rossendale, Prit. Ad. Digest, vol. 2, p. 591. (q) Lush. 312. As to the allowance of refreshers to counsel on hearing a cause and cross cause, see The Queen, Weekly Notes, 1868, p. 92. |