smack's crew to do so till the very last.

On behalf of the Dundee, it was deposed, that the loss of the Princess Charlotte was purely accidental, or if attributable to any mismanagement, attributable only to the unseamanlike conduct of the Princess Charlotte's own people, who, if they had continued to wear on, in the same course which they were keeping at the time, instead of porting their helm, would have escaped all damage whatever.

Lord Stowell then addressed the Trinity Masters and the Court to the following effect:"This case, Gentlemen, must be decided almost entirely by your information, experience, and opinion. My own opinion upon the case, without reference to the circumstances, is briefly this: An accident has happened which has induced the loss of a very valuable property-a loss that must fall, with very severe weight, upon one or other of these parties. Losses of this kind have often occurred from different causes; sometimes from causes of mere accident, unconnected with any imputability of blame whatever. If the misfortune be owing to such accidents as no human foresight, or skill, or management, can entirely avoid or overcome, the loss must fall, as in the case of other accidents of daily occurrence, on the party to whom the accident has actually occurred: but the parties in this case decline to consider it as a case of accident alone; and if you, gentlemen, should consider it as a case merely of accident, you would differ from them both: for they both consider it as a clear case of mis

conduct, not of accident; but they differ as to the party, on whom the misconduct is to be charged; because each charges that matter on the other, and each claims an entire exemption from all share of the blame. The owner of the ship that suffers, charges the other with gross inattention, with negligence, and with not keeping a proper look out-charges these, that are certainly not inconsistent with one another, and which are, I presume not unfrequently, entirely concurrent. Those of the other party attempt to fix on the offending vessel an act of decided negligence or inattention. Now nothing of this sort attaches to the other vessel; because it is perfectly shown that she had manifested a proper solicitude for her own safety, by hailing the brig Adventure repeatedly, which brig was approaching her, after having passed the Dundee. But on behalf of the Dundee it is contended, that the smack in doing so, adopted one unskilful manœuvre, which led to this unfortunate concussion: for it is stated in the allegation, that, had the Princess Charlotte held on her course, immediately on seeing the helm of the Adventure altered, and instead of trying to go to leeward, so held on, she would have cleared the Adventure by many feet, and the Dundee by many fathoms. It is therefore pleaded, that one unseamanlike measure, on the part of the smack, has led to the lamentable conclusion which followed. Now, gentlemen, you are to judge of this: I shall content myself by pointing out a few rules of reason, and as I conceive of maritime law, which I take to be not inap

plicable to the consideration of such a case: and the first of them is this If a ship going in her direct course, and with all the force and velocity that belongs to that course, under all the favourable circumstances of wind and weather, runs a ship down by striking on her side, the law is, that the ship so pursuing her course, under such circumstances, is to exculpate herself from a charge of an unlawful aggression: for, at any rate, she is the aggressor in point of fact. She may be so, indeed, innocently; then, as I have already observed, a case of inevitable and uncontrollable accident would be here sufficient exculpation. But, gentlemen, in this case it is not to be presumed that the loss has been wholly occasioned by such accident; it is not even so pleaded: but their allegation is, that the other vessel, the smack, had, by some act of her own, placed herself in such a situation, that it was not possible to avoid the collision. Now when a case of this sort is set up, it must be supported by the clearest evidence; for it is a case against all presumption, that a vessel would throw herself into the way of destruction by an act of her own: but, otherwise, the blame must rest with the aggressor; for it is the blow of the aggressor that has actually done the deed; and, as I have before remarked to you, it is against all presumption that the other party had exposed herself. If that be really the case, it must be shown by the clearest and most satisfactory evidence, and with the force of demonstration; for, unless it can he made apparent that the accident so fell out, the aggression

and all its consequences must lie with the aggressor. The second point, gentlemen, that I should press upon your observation is, that where a light ship comes into collision with a heavy one, the conclusion is against the aggressor: a light ship is more easily diverted from a course that is likely to bring hazard to it; and therefore, being with less difficulty removed from a situation likely to cause hazard to it, a higher degree of responsibility as to taking such measures as may preserve her, attaches to her. The last and most important point, gentlemen, and which I take to be proved by the facts here is, that a vessel favoured by the wind and tide, is, charged in a peculiar manner with the responsibility of protecting other vessels differently circumstanced. Her means of escaping danger herself, and of combating it, are more easy and more effective. On these accounts it is, that her responsibility is greatly increased, and consequently, that responsibility is still augmented, when, in a case of accident, the circumstances, under which she may have occasioned it, do not appear necessarily to have led to it. I do not feel that I state this rule too strongly, when I say, that ships in the possession of such advantages as I have mentioned, are, to a certain extent, charged with the protection of other vessels that may be not so favourably provided for; and therefore, if mischief does happen by reason of any act attributable to a ship so favoured, the original sin lies at her door, till it is cleared away by a most satisfactory explanation. These, gentlemen, are the general observations,

which your peculiar apprehension and experience of such matters will apply as far as possible. In the voluminous papers in which the evidence is contained, there is a large mass, upon which I am unwilling to observe,-I mean the conversations that are represented to have taken place after this accident had happened. You are aware, gentlemen, that ship testimony of this sort is usually of a very contradictory nature; and therefore it will be much safer for you to determine this case upon the real facts brought before you, instead of deciding it on the faith of these uncertain colloquies. I shall be very glad to hear that you have found quite enough in these facts to enable you to do so; but if not, it will be my duty to point out a few of the facts, that may be most material for your notice. At present I shall state only these: Here is a large ship, possessed of all the advantages of wind, tide, and weather. She runs down a light vessel, by a violent blow upon her side, as she is proceeding against wind and tide, with all imaginable caution and regard for her own safety. It is for you, gentlemen, to instruct me, whether the ship has cleared herself of the imputation of misconduct, attaching, as it does, to a misfortune that certainly ought not to have taken place under such a state of circumstances. You will judge whe ther, from the papers before the Court, it appears that due caution has been exercised on the other side. You will judge whether a proper look-out was kept, such as ought to have been kept; you will also judge whether, on the near approach of the danger,

the Dundee took those proper measures of precaution and safety that it then became indispensably necessary to adopt? On the other hand, gentlemen, you will consider, whether the suffering ship, which is clearly shown to have observed all reasonable caution, is incontrovertibly proved to have adopted a measure of an extremely disadvantageous kind, and such as has exposed her to the unfortunate destruction of her hull, rigging, and cargo. I shall not enter into a minute examination of this evidence. You must be infinitely better judges of them than myself, and must bring to their consideration infinitely more experience and information than any which I can pretend to help you to. It is, indeed, the greatest satisfaction to me to know, that you have given the evidence the most meritorious consideration, that you have devoted to it the most anxious consideration,-and have listened attentively to the able arguments which have been constructed upon it. Your judgment on the circumstances of this case, therefore, is much more proper to direct me, than mine is to direct you; and to that I must refer them.

The Senior Trinity Master, (Mr. Isaac Robinson) lamented, that in all these cases of collision it almost invariably happened that there were similar variations and discrepancies in the evidence to those which had occurred in the present instance. But this was easily accounted for, and particularly in this case, when the situation of the vessels was considered. Taking it that the Dundee was proceeding at about five knots an hour, allowing for

the running of the tide one and a quarter, and for the slack three quarters per hour, these vessels were approaching each other at the rate of sixteen feet in a second. He mentioned these circumstances, merely for the sake of showing that, in such a state of things, and such a rate of sailing, it was almost impossible that men should be able to give any accurate account of the transaction. It appeared to the master and his brother, that it would be hard to judge of the veracity of men engaged in such a scene, by any accidental discrepancies of evidence. It was a scene of confusion, terror, and alarm; the horrors of which nobody knew, but he who had been present in it. In the case of a house on fire, however alarming might be the progress of the flames, it might be said that a man had time to collect himself, and to meet with fortitude so trying a situation; but in the case of two ships nearing each other with this velo city, the time was so momentary, and the peril so inevitable, that the mind had no opportunity of rallying, and the senses of a man were too much engrossed with the present danger to allow of his observing passing circumstances with any minuteness. In the evidence very few circumstances were detailed, but those which arose between the period at which the alarm was first excited, and that at which the accident took place. Himself and his brother conceived that the blame of that event must rest upon the party which first caused that species of alarm, which first produced in the other party an incapability of managing their own vessel. It was important, therefore, to as

certain who did excite it, at a time when both parties were pursuing their course in the full pos session of all their faculties. There was one rule which was well known to all seamen, and it was this-the ship which had the wind, which was going largely, and which had the command of her helm, was to take care of those ships that were sailing by the wind. Now, one of these vessels was sailing 11 points from it. As to the Dundee, he (him. self) and his brother, found no fault with the sails she had up, though the other vessel was stem. ming the tide. But the Dundee was aware that the Princess Charlotte being in the wind, it was of importance to her, so stemming the tide, to go on steadily in her course. Now, they did think, that the Princess Charlotte was, at the time, going on in that course under a full understanding that the Dundee would "take care of her."

It did appear,

that only a few minutes before, the Adventure had cleared the Princess Charlotte. It was perhaps important to consider the time at which the Adventure came in a line with the smack and the Dundee. The evidence varied from 5, 10, 15, 20, 30, to 45 minutes; and in the time of five minutes it was impossible to suppose, that the Dundee had not kept a good look-out: if it was a longer time, then a question arose, how far the Dundee was acting with prudence in sailing in the very eddy of the brig's wake; for if the evidence of her own crew was to be believed, she was certainly not more than forty feet astern of the Adventure, which would bring her within the effect of that eddy.