great experience, informs us that in the time of Chief Justice Sewell fees in such cases were not allowed; but that in the time of Sir James Stuart the practice was to allow them; that the lastmentioned practice has continued ever since; and he has given us a note of four cases in which Attorneys appearing in their own cases have been allowed their fees. Under these circumstances I think it doubtful whether any change in the practice as to this matter ought to be made, and that if a change were determined on, it ought to be made so as not to affect pending causes." Whether the Court of Queen's Bench might lawfully alter the law under the statutory power conferred by the Consolidated Statutes, c. 77, s. 15, to make and "establish such rules of practice as are requisite for regulating the due conduct of the causes, matters, and business before the said Court," it is unnecessary to decide; for the Court has in fact made no such rule, nor has the law been altered by any legislative Act, or other competent authority. We, therefore, think it was the duty of the Judges of the Court to administer the old French law, and that they could not alter it, or decline to apply it, on grounds of supposed expediency, as they appear to have done in the judgment in the present case, and the preceding cases on which that judgment was founded. For these reasons, their Lordships will advise Her Majesty that it should be reversed. Their Lordships do not think it should be reversed with costs because the Appellant had a full opportunity of bringing the point before this Committee, and of obtaining their judgment, when the former case of Brown v. Gugy was before them (1). Had the present Appellant then prosecuted his cross appeal, the question which is the subject of the present appeal would have been then decided. His neglect to do so has been the occasion of the costs of this appeal having been incurred; and their Lordships, therefore, think he ought not to be allowed them (2). Solicitor for the Appellant: La Penotière. Solicitor for the Respondent: Clarke, Son, & Rawlins. (1) 2 Moore's P. C. Cases (N.S.) 341. (2) See the case of The Jersey Bar (13 Moore's P. C. Cases, 275), and the French Ordonnances there cited in note, as to the right of an Avocat to fix the J. C. 1867 W GUGY V. BROWN. J. C.* 1867 Feb. 18. THE LONDON AND EDINBURGH SHIP- APPELLANTS; AND THE "IONA.” ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Compulsory pilotage-Merchant Shipping Act, 17 & 18 Vict. c. 104, sec. 388- In order to entitle the owner of a ship, having, by compulsion of law, a Pilot on board, to the benefit of the exemption contained in the Merchant Shipping Act, 17 & 18 Vict. c. 104, sec. 388, from liability for damage by default of the Pilot, it is not enough to prove that there was fault or negligence on the Pilot's part, but the owner must shew that there was no default on the part of the Master and crew, which might have in any degree been conducive to the damage. Where, therefore, there was neglect on the part of the Master and crew to keep a good look-out, and such neglect conduced to a collision, the owners were held liable for the damage. The duty of the Pilot is to attend to the navigation of the ship, and the THE The Iona, a screw Steamship of 684 tons register, in charge of a licensed Trinity Pilot, whose employment was compulsory upon her owners, was proceeding down Blackwall Reach, under steam alone, and her course was being shaped to round Blackwall Point, when the Emily Fanny was seen rather on the starboard bow of the Iona, at a distance of about 300 yards, apparently * Present:—THE MASTER OF THE ROLLS (LORD ROMILLY), SIR JAMES WILLIAM COLVILE, and SIR RICHARD TORIN KINDERSLEY. J. U. 1867 proceeding to the northward; the helm of the Iona, which was then a-port for the purpose of rounding Blackwall Point, was, by order of the Pilot, put hard a-port, with a view of passing THE “IONA." under the stern of the Emily Fanny, but the tide took the Iona and prevented her from answering her helm, and although her engines were, by order of the Pilot, eased, stopped, and reversed, she struck the Emily Fanny, and sank her. The suit was brought by the owners of the Barge. The petition stated that the reach was clear; that the Steamer might have passed, either to the northward or southward of the Barge; that the collision was entirely attributable to the improper navigation of the Iona, and to the negligence and default of those on board her; and that there was no one looking out on board the Steamer. The answer alleged, first, that there was a good and vigilant look-out on board the Steamer; secondly, that the collision, and damages and losses consequent thereupon, were not caused by, or attributable to, any improper navigation of the Iona, or those on board her, but was the result of inevitable accident; and, lastly, that at the time of the collision the Iona had on board a licensed Pilot, by compulsion of law, who was in sole charge of the Steamer, and that his orders were promptly obeyed by the Master and crew; that if the collision was in any way occasioned by any one on board the Iona, it was solely occasioned by the Pilot, and, consequently, that the owners were not liable in respect of any damages caused by the collision. The case was heard upon vivá voce evidence before the Judge of the Admiralty Court (The Right Hon. Dr. Lushington), assisted by two Trinity Masters. The learned Judge, in summing up, addressed the Trinity Masters as follows:-"In this case there are two questions for your consideration; in the first place, it is perfectly clear that prima facie the Iona was to blame for this collision, unless she can be exempted from the consequences of that blame by the evidence adduced on her behalf. The defence is, that she had a licensed Pilot on board, which Pilot, by law, she was bound to take; that she was at the time under the control, and navigated by, the Pilot; and that if any blame whatsoever attached, it was the blame of the Pilot. The case of inevitable accident is given up, and, therefore, the question that first J. C. 1867 arises is was this accident occasioned by any erroneous management on the part of the Pilot, and in what way? The objection THE "IONA." to the conduct of the Pilot, is, that there was no sufficient look-out on board the Iona, that if there had been a sufficient look-out the Barge would have been seen at an earlier period, and the collision might have been avoided. That is a matter for your consideration, but I think it is clear from the evidence that there was not a good look-out; the fact that a man was on the look-out is not sufficient evidence that a good look-out was kept; there was evidence that the Boatswain was on the look-out, but there was no evidence that the look-out was kept. If, therefore, you think the collision arose from the want of a sufficient look-out, then the exemption from blame, on account of the Pilot being on board, fails, because it was a defect in the navigation of the ship, for which the owners are responsible. The other question is this: It has been said that the Iona was intercepted, so to speak, by the tide, and though the power of the tide upon her was slight, yet that it was sufficient to prevent her getting round on the port tack as she intended; that she was a new vessel, and there was something wrong. I cannot form an opinion upon that at all, but I must leave it entirely to you. These are the two points for your consideration." After consultation with the Trinity Masters, the learned Judge finally held, that there was no proof that there was a proper lookout kept on board the Iona; that she ought to have seen the Barge earlier, and prevented the collision, and, therefore, that her owners were liable. Hence the present appeal by the owners of the Iona. Mr. Brett, Q.C., and Mr. E. C. Clarkson, for the Appellants In the Court below the main grounds of the defence of the Appellants were:-first, that the collision arose from inevitable accident, but we do not now rely upon that point; and secondly, that if any blame was to be attributed to the Iona, it was solely to the Pilot. On this latter ground we rely, and submit that as the Appellants were compelled to take a Pilot on board, they are exempted from liability for damage arising by his neglect or default: The Merchant Shipping Act, 17 & 18 Vict. c. 104, sec. 388. J. C. 1867 w Now, it was proved by the Appellants' witnesses that the Barge was seen by the Pilot in ample time for him to have taken proper measures, and to have avoided the collision. It was his duty to THE IONA." keep a good look-out, which his position on the bridge of the Steamer allowed him to do. That fact was not properly taken into consideration by the learned Judge below. Had it been, then the question whether there was a proper look-out by the crew was wholly immaterial. As the Pilot saw the Barge in time and did not take proper measures, and, in addition, was guilty of palpable negligence, having regard to the state of the tide, in ordering the Iona to be put hard a-port, the blame rests on him. If, therefore, there be blame, it is to be attributable solely to the Pilot in charge of the Steamer, and that, under the above Statute, exempts the owners from liability for damage: The Mæander (1). Dr. Deane, Q.C., and Mr. V. Lushington, for the Respondents It was the duty of the Master and crew, as well as the Pilot, to keep a good look-out in order to avoid any collision, which was not done in this case. The onus is on the owners claiming the statutory exemption from liability for the damage, to prove strictly that there was no blame on the part of the Master and crew, which here they have failed to do: The Schwalbe (2). It has been held, under the former Statute, 6 Geo. 4, c. 125, sec. 55, that the owner is only exempted when the damage is solely caused by the negligence, default, or incompetency of the Pilot: The Diana (3); and the same construction has been put upon section 338 of the Statute, 17 & 18 Vict. c. 104, relied upon by the Appellants: The Schwalbe (4); The Malvina (5). Their Lordships' judgment having been reserved, was now delivered by SIR RICHARD T. KINDERSLEY : At about 8 o'clock in the morning of the 11th of March, 1866, and, therefore, in broad daylight, the Barge, Emily Fanny, laden (1) 1 Moore's P. C. Cases (N.S.) 63. (2) Lush. 239; S. C. 14 Moore's P. C. Cases, 241. (3) 4 Moore's P. C. Cases, 11. (4) 14 Moore's P. C. Cases, 241. (5) 1 Moore's P. C. Cases (N.S.) 357. 1867 March 8. |