Evidence

establish

exemption.

This provision applies as well to the proceedings in rem in the Admiralty Division, as to actions at law (j).

Before an owner or master can claim the benefit of the exempnecessary to tion given by the statute, he must adduce some affirmative proof to show not only that a pilot was on board, but that the pilot had taken upon himself the management of the ship (k), and that the pilot's fault occasioned the injury (7). At one time it was held, that if a collision happened whilst a licensed pilot was on board it was to be presumed that the damage was occasioned by his negligence (m). But it is now clear that the object of the statutory exemption in favour of owners and masters is to

was decided also that the protection
did not the less exist by reason of the
pilot being in the permanent employ-
ment of the owner, provided he was
duly licensed. The Batavier, 2 W.
Rob. 407; 4 Notes of Cases, 356; S. C.,
10 Jur. 19; and see The Hibernian,
L. R., 4 P. C. 511, decided under the
M. S. Act, 1854.

(j) The 6 Geo. 4, c. 125, as well as
the 5 Geo. 2, c. 20, provided that
nothing contained in them should
affect or impair the jurisdiction of the
Court of Admiralty. In consequence of
this, considerable difference of opinion
arose as to the effect upon proceedings
in that Court of the clauses which pro-
tected owners and masters. In a suit
which was brought for damage done by
a foreign vessel whilst going down the
Thames under the charge of a licensed
pilot, it was held that the exemption
from responsibility given by the act to
owners and masters was restricted to
the Municipal Courts, in which the
remedy is against the parties, and that
the remedy against the vessel herself
still existed in the Admiralty Courts,
which, acting on the law of nations,
have always exercised in these cases a
jurisdiction which was not taken away
in terms by the statutes; and it was
doubted whether the provisions of the
Pilot Act applied to foreign vessels,
which, when outward bound, could not
be compelled to take a pilot on board.
The Girolamo, 3 Hagg. 169. This de-
cision related to a foreign vessel; the
reasons given in the judgment apply,
however, equally to vessels of this coun-
try, and in some other cases it was held,
that even with respect to these vessels
the liability of the owners in the Court
of Admiralty was not affected by the
statute. See The Neptune the Second, 1

Dods. 467; The Transit, March 17, 1838, reported 1 Monthly Law Magazine, 582. But in a later case, where the question arose with respect to an English vessel, it was held that the responsibility of the owners in the Admiralty Court was limited by the statute. The Protector, 1 W. Rob. 45; see also The Maria, ib. 95; The Agricola, 2 W. Rob. 10. In these decisions, in one of which an elaborate judgment was given, no notice was taken of The Girolamo, ubi sup. See also The Vernon, 1 W. Rob. 316, a decision which seems to assume the correctness of the ruling in The Protector, ubi sup. In another case it was held that the statute applied as well to foreign vessels when proceeded against in the Admiralty Court, as to those of this country; The Christiana, 2 Hagg. 183. Although with respect to foreign vessels the question was open to some doubt, with regard to English vessels the statute clearly applied as well to proceedings in rem in the Admiralty Court as to suits inter partes. See the judgment of the Privy Council in The Diana, 4 Moo. P. C. C. 11, 21, and The Wild Ranger, Lush. 553; 32 L. J., P. M. & A. 49. In the M. S. Act, 1854, it will be seen that there is no such exception.

(k) Catts v. Herbert, 3 Stark. 12; The Mobile, Swa. 69, 127; The City of Cambridge, L. R., 5 P. C. 45; Clyde Navigation Commissioners v. Barclay, 1 App. Cases, 790.

(1) The Protector, 1 W. Rob. 56; The Diana, ib. 131; Clyde Navigation Commissioners v. Barclay, 1 App. Cases, 790.

(m) Bennet v. Moita, 7 Taunt. 258; see also Ritchie v. Bousfield, 7 Taunt. 309.

protect them in those cases only in which the pilot alone is the author of the injury (n), and that the burden of proving that the damage was occasioned by the fault of the pilot lies on the owner of the ship (o). When, however, the shipowners have proved fault on the part of the pilot sufficient to cause the collision, they are not to be called on to adduce proof of a negative character to exclude the mere possibility of contributory negligence on their part. But if in the course of the evidence negligence on the part of the crew is established, it then becomes incumbent upon the owners to show that the negligence of the crew in no way contributed to the collision (p).

It must be remembered that a ship is under the orders of Where act not within pilot's a pilot for the purposes of navigation only, and that the mere duty. fact of taking a pilot on board, where it is compulsory to do so, does not exonerate the master and crew from the proper observance of their own duty (q); therefore, to enable a master to screen himself from liability by setting up neglect on the part of the pilot, he must show that the act complained of was one within the duties which properly attach to the latter, and not one which being connected with the general management of the ship falls to the share of the master, even although there be a pilot on board. Thus in one case where a bad look out had been kept by the master and crew (r), and in another, where the

(n) Rodrigues v. Mellish, 10 Exch. 110; Hammond v. Rogers, 7 Moo. P. C. C. 160, on appeal from The Christiana, 2 Hagg. 183. It was held in this case that the owners were not protected if blame could be imputed as well to the pilot as to the master and crew. The point was not raised in the Court of Admiralty. See also the judgment of Dr. Lushington, in The Protector, 1 W. Rob. 54; The Admiral Boxer, Swa. 193; The Mobile, ib. 69; The Batavier, 1 Spks. 378; 1 Moo. P. C. C. 286; and The Schwalbe, Lush. 239, on appeal nom. The North German Lloyd Steam Ship Co. v. Elder, 14 Moo. P. G. C. 241.

(0) The Lochlibo, nom. Pollok v. M Alpin, 7 Moo. P. C. C. 427; The Carrier Dove, Br. & L. 113; The Ocean Wave, L. R., 3 P. C. 208.

(p) Clyde Navigation Commissioners v. Barclay, 1 App. Cas. 740. And see the cases cited above; also The Mobile, Swa. 69; S. C. on appeal, ib.

127; 10 Moo. P. C. C. 467, nom.
Bates v. Don Pablo Sora; The Borussia,
Swa. 94; The General de Caen, Swa.
9; the judgments of Sir J. Nicholl, in
The Girolamo, 3 Hagg. 176; and in
The Diana, 1 W. Rob. 131; S. C.,
before the Privy Council, Stuart v.
Isemonger, 4 Moore, P. C. C. 11; The
Massachusetts, 1 W. Rob. 371; The
Atlas, 2 W. Rob. 502; 5 Notes of
Cases, 50; and The Ripon, 6 Notes
of Cases, 245. Many of these deci-
sions, although upon the earlier acts,
are applicable to the statutes now
in force. See The George, 4 Notes of
Cases, 163; S. C., 9 Jur. 672; see also
The Maria, L. R., A. & E. 358.

(9) Per Dr. Lushington, in The Diana,
1 W. Rob. 135. See also ante, p. 283,
note (i); The Queen, L. R., 1 A. & E.
354.

(r) The Velasquez, L. R., 1 P. C. 494; The Diana, 1 W. Rob. 131; 4 Moo. P. C. C. 11.

Foreign vessels.

evidence showed that, after a collision had occurred through the fault of the defendant's ship, the damage done was materially increased by the master omitting to cut a lanyard when he should have done so, it was held that these acts of negligence rendered it impossible to set up as a defence the acts of the pilots (s). The same rule would also be applicable, in some cases, to improper acts done by one of the crew by order of the pilot, in a matter which should have been controlled by the master (†).

It was held before the passing of the Merchant Shipping Act, 1854, upon the general principle of international law which requires that a person suing in the Courts of any country must take his remedy as the law of that country allows it to him, that if a foreign vessel was injured by an English ship within the limits of the then Pilot Act, the latter, if she was in charge of a licensed pilot taken on board in pursuance of a statute, was protected to the same extent as she would have been against the claim of another English vessel (u). The language of sect. 388 of the Merchant Shipping Act, 1854, which now limits the responsibility of shipowners in cases of injury caused by the acts of a pilot compulsorily in charge of the ship is very wide; and as this section uses the words "any ship," and as by sect. 330 this portion of the statute is not confined to any particular class of ships, the existing statutory protection has been held to extend

(8) The Massachusetts, 1 W. Rob. 371. As to the extent of the pilot's control, see supra, pp. 249, 250. See also The City of Cambridge, L. R., 5 P. C. 451; The Princeton, 3 P. D. 90. See also The Borussia, Swa. 94, and The Ocean Wave, L. R., 3 P. C. 205.

(t) See Boucherv. Noidstrom, 1 Taunt. 568. The 33rd section of the M. S. Act, 1862, now repealed, imposed a duty upon the "person in charge" of a ship which had come into collision with another ship to render assistance to such other ship, and enacted that in case of default to render assistance, the collision should, in the absence of proof to the contrary, be deemed to have been caused by the wrongful act of such person. In a case where, whilst this section was in force, a collision occurred between two ships one of which was in charge of a pilot by compulsion of law, it was held that the pilot was not a person in charge of the ship within the meaning of the section.

The Queen, L. R., 1 A. & E. 354. In the same case the court observed that the neglect of the master to render assistance within the section would not render the owners liable for the consequences of the collision if it had been caused solely by the negligence of a qualified pilot employed by compulsion of law. See and compare the provisions of the M. S. Act, 1873, s. 16, which is the enactment now in force.

(u) The Vernon, 1 W. Rob. 316. In the judgment of Dr. Lushington in The Wild Ranger, Lush. 553, the authorities with reference to the effect upon foreign ships of English statutory provisions limiting the responsibility of shipowners in cases of collision generally, and in cases of compulsory pilotage, are collected and commented on. We have already seen (ante, p. 80) that the protection given by the M. S. Act, 1862, to shipowners, is applicable by the terms of that act to foreign ships. See also ante, p. 260.

to all vessels, as well foreign as English, within the districts in which pilotage is compulsory (x).

8. 74.

It is provided by the 74th section of the General Pier and 10 Vict. c. 27, Harbour Act, 1847, that the owner of every vessel shall be answerable to the undertakers of the harbours and piers within the act for any damage done by such vessel or by any person employed about the same to the harbour, dock, pier or the quays or works connected therewith (y). The section, however, contains a proviso that these provisions shall not extend to impose any liability on the owner of any vessel where such vessels shall at the time when such damage is caused be in charge of a duly licensed pilot whom such owner is bound by law to employ and put his vessel in charge of.

(x) See The Annapolis, Lush. 295, and The Princeton, 3 P. D. 90, where both the vessels which came into collision were foreign vessels.

(y) See post, Ch. VIII., COLLISION, and Adamson v. The River Wear Commissioners, 3 App. Ca. 743.