ނ 1879 called a dim green light; also in the libel filed against the SOULANGES. Neptune it is alleged that those on board the Soulanges saw NEPTUNE. the Neptune's green light when the vessels were within two hundred feet of each other. It is evident, to my mind, that the Neptune had her lights properly exposed, and that had a strict and careful watch been kept on board the Soulanges these lights could have been seen before there was any danger of collision. It is also contended that the Neptune did not observe the rule prescribed in the Dominion Act, which directs that when two vessels under steam are meeting "end on," or nearly "end on," so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other. This rule is by no means inflexible. Like all other general rules, it must yield to the necessity and reason of particular cases. A vessel may take a course opposed to that indicated by the rule, when there is reasonable ground for believing such proceeding necessary for her safety or more secure navigation. The Switzerland (1). This rule is applicable only when the vessels, by continuing their respective courses, are likely to come into collision, and when, by porting their helms, the collision may be avoided. But the rule is not applicable where either vessel, by unskilful management, is so near the shore that by porting her helm there would be danger of collision. In such case the vessel in her right course is justified, in spite of that rule, in putting her helm to starboard. General Steam Narigation Co. v Tonkin (2). In this case the Neptune was in her proper position. She had a right to continue her course, and the Soulanges, by crossing the course of the Neptune, did so at her peril. Had the Neptune ported her helm when she first sighted the Soulanges, it is possible that the vessels might have gone clear of each other; but it appears to me that there was sufficient room for them to pass clear without her doing But what reason had the Neptune to presume that the Soulanges would so suddenly have changed her course towards the eastward? When first sighted at the short. (1) 2 W. Rob. 485. (2) 4 Moo. P. C. 314. distance of a quarter of a mile from each other, the Sou- 1879 langes appeared to be running straight up the river, steering SOULANGES. for Akerley's Point, and had she continued that course the NEPTUNE. changing of the Neptune's course, by porting her helm, would, in all probability, have brought her into contact with the Soulanges, whilst, by pursuing her direct course, she had no reason to apprehend that any danger or difficulty would arise. It has been held in cases of collision that it is no defence to a vessel clearly in the wrong that the other vessel might, by departing from the ordinary rules of navi gation, have avoided the collision; but the whole damage will fall upon the vessel which did not adopt the measures proper for her in the particular circumstance. The Test (1). It has been also argued that the master of the Neptune was at fault in starboarding his helm at the moment of the collision. I do not, however, consider that any imputation. attached to him on that account, as the collision was at that moment inevitable, and his adopting the measure he did was to diminish, as far as possible, the impending evil. My opinion on the whole case is that the collision was caused by the default and mismanagement of the Soulanges, and this decree must be against her. The Court therefore dismisses the action of the owners of the Soulanges against the Neptune, with costs, and maintains that of the owners of the Neptune against the Soulanges, also with costs. On the question of damages, I find the aggregate of the costs and expenses of raising the Neptune, bringing her to Saint John, and making the necessary repairs proved by Patrick Lynch, one of the owners of the Neptune, to be $1,784.67, with interest from date of deposition, August 19, 1878, $107 in all, which I assess at that amount against the Respondents, making in the whole $1,891.67. (1) 5 Notes of Cases, 276 s. c. 11 Jur. 998. 1880 Sept. 23. THE GRACE-NORTHRUP. Collision-Sailing Rules-Departure from— Liability — Inevitable Accident- Two vessels, the R. and the G., were sailing up the river from St. John to Fredericton. At Perley's Reach, so called, near Fredericton, where the river runs about north-west and south-east, and is about three hundred yards wide, the R. being on the starboard side of the river, and on her starboard tack, the G. on the port side of the river, and on her port tack, the vessels were passing each other port side to port side. When the G. was nearly abreast the R. she suddenly rounded to, and struck the R. on the port side forward of the mainchains, when the R. immediately sank. Held:- That it was not a case of inevitable accident; that the R. being on the starboard tack, had the right of way; that the G. was to blame for the collision, and was liable for damages. The facts of this case are fully stated in the judgment of the Court. C. A. Palmer for promovents. S. R. Thomson, Q. C., for respondents. WATTERS, J. This was a cause of damage by collision promoted by the owners of the schooner Ranger against the woodboat Grace for having run her down on the 10th May, 1879. The two vessels were on that day proceeding on their way up the river Saint John to Fredericton. The libel alleges that the Ranger sailed from Saint John on the 9th May with a cargo of cornmeal, coal, and general merchandise, bound for Fredericton; that she proceeded on her voyage up the river Saint John, when she arrived near Middle Island, or Perley's Reach, being then under full sail, and on the starboard side of the middle of the river, the course of the river at that place being about north-west and south-east, the Ranger being on her starboard tack and steering a course of west by north when they sighted the Grace on her port tack and sailing up the river, which was there about three hundred yards wide; that she sailed on the port side of the Ranger, so that the two vessels were passing each other on each other's port side a sufficient 1880 distance to clear each other and do no damage; that when THE GRACE the Grace was nearly abreast of the Ranger, by some unaccountable bad management or unskilful seamanship, the Grace suddenly rounded to and ran directly into the Ranger and struck her a little forward of the main-chains, and that the Ranger immediately sank. The responsive allegation, brought in on behalf of the Grace, alleged that on the 10th May the wind was blowing hard from the west, varying to west-south-west; that in consequence the Grace, with other vessels, was obliged to lie at anchor on the port side of the river, near Taylortown, and whilst she lay there the Ranger sailed up the river; that the Grace weighed anchor and overhauled and passed the Ranger at Middle Island before entering Perley's Reach ;' that the Ranger was on the starboard tack and steering about south by west, whilst the Grace was on the port tack steering north by east; that after the Grace had left the port side of the river, and the Ranger had left the starboard side, and when they were about three or four lengths apart, the wind suddenly veered round, and a heavy squall from the south-south-west struck the Grace aft, and without the fault of any one caused her to luff up and changed her course that is to say, headed her up the river; the master of the Grace was at the time at the tiller with William Belyea, a hand on board; they (both of them) pushed the tiller hard a port, in order to get the Grace on her course again; that the captain then held the tiller in that direction and immediately sent Belyea to let the main-sheet go; that Belyea did run, and as quickly as possible was in the act of letting go the main-sheet, but before he could do so the Ranger lapped on the Grace and took the wind out of her fore-sail, leaving the whole pressure of the wind on the main-sail, turning her head still more up river in the direction of the Ranger, and jerking the tiller out of the master's hands, whereby the Grace at once came into collision with the Ranger, and whereby the Ranger sank, but such collision was the inevitable result of the manner in which the Ranger was managed, and not owing to any fault of the 1880 Grace; that the Ranger did not make any attempt to avoid THE GRACE, the collision, but notwithstanding that they saw the said squall strike the Grace, and caused her to head up river, yet the Ranger kept on her course, whereby and thus the collision was caused by the bad management and unskilful navigation of the Ranger, and not by that of the Grace. The defence, therefore, offered is in effect that the collision was either the result of inevitable accident or the fault of those on board of the Ranger. In Roscoe's Admiralty Practice (1) it is said: "When damage is caused by circumstances which the party charged could not have prevented by the exercise of ordinary care, caution, and nautical skill, the result of such events is inevitable accident." Dr. Lushington, in the case of The Europa (2), says: "Inevitable accident must be considered as a relative term, and must be construed not absolutely, but reasonably, with regard to the circumstances of each particular case. In the strict sense of the term there are very few cases of collision that can be said to be inevitable, for it is almost always possible, the bare possibility considered, to avoid such an occurrence." How was this collision an inevitable accident? (Reads evidence on this point.) Captain Peck, master of the Angola, a witness produced by the promovents, who was at the time on board of his own vessel beating up the river, and about one-fourth of a mile away, describes the collision. He says he was rather above the Grace and Ranger, and was on the starboard tack a little ahead of the Ranger; that the wind was blowing a strong breeze and rather squally. The Ranger was on her starboard tack, and the Grace coming on her port tack towards the Ranger; that she seemed to be going head first right into the Ranger; she went stem on, and struck the Ranger between the two masts. He thought she struck her, because the Grace did not give way. He says it was done very quick. The wind had been blowing from about southwest; it had not changed for nearly three hours. He says: (1) p. 29. (2) 2 Moo. P. C. N. S. 1 s. c.; 32 L. J. Ad. 188; Br. & Lush. 89. |