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AMENDMENT.

By Canadian rule 67 of 1893, any pleading may at any time be amended, either by consent of the parties, or by order of the judge. Very extensive powers to amend all pleadings exist under the English practice.

1885

THE

his opponent. As was said by
Sir Robert Phillimore in The
Frankland, L. R. 3 A. & E. 511: MAUD PYE.
"The object of the preliminary
act is to obtain from the parties
statements of the facts at a time
when they are fresh in the recol-
lection." In The Vortigern, Swa.
518, it was laid down that appli-
cation to amend any mistake in
a preliminary act must be made
at once after its discovery, and
must be supported by affidavit.
But in the later case of The
Frankland, L. R. 3 A, & E. 511,
the defendant in a cause of dam-
age applied to the Court, when
the cause was called on for hear-

The Court or judge may at any
stage of the proceedings allow
either party to amend or alter
his indorsement or pleadings in
such manner and on such terms
as may be just, and so that all
such amendments be made as
may be necessary for determin-
ing the real question in contro-
versy between the parties. The
Court has power even after judging,
ment to grant leave to amend
the indorsement of claim on the
writ. The Dictator (1892), P. 64.

PRELIMINARY ACTS.

The right to amend, it would seem, does not apply to preliminary acts. The statute 3 & 4 Vic. c. 65, was passed to extend and improve the practice of the High Court of Admiralty. Under it rules and regulations were adopted, and confirmed by order in Council, December 7, 1855, by which it became necessary to have preliminary acts in collision cases. The object of preliminary acts is to obtain a statement recenti facto of the leading facts and circumstances of the case, and by that means to prevent either party changing his statement to meet the case of

and before any evidence had

been taken, for leave to amend
the preliminary act, and also his

answer.

The judge allowed the answer to be amended, but refused to allow an amendment of the preliminary act, as such a course would entirely defeat the object of preliminary acts. In The Miranda, 7 P. D. 185, application, supported by affidavit and before the hearing, was made to allow a mistake in a preliminary act to be amended, but it was refused, the judge saying that "it would be improper for the Court to allow any alterations to be made in the preliminary acts." The defendant, however, in The Godiva, 11 P. D. 20, was allowed to amend his preliminary act where he had omitted to make a proper statement of the distance and bearing of the

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THE

other vessel. A party will not be allowed to give evidence to conMAUD PYE. tradict a fact stated in his preliminary act. The Inflexible, Swa. 32. When a collision case is to be heard on viva voce evidence the preliminary acts are exchanged before the evidence is taken. The Ruby Queen, Lush. 266; The Friends, ibid 552. In

Canada, under rule 116 of 1893, the preliminary acts may be opened as soon as the action has been set down for trial. Preliminary acts are only required in collision cases in actions of one ship against another. The John Boyne, 36 L. T. N. S. 29.

DAMAGES.

For cases as to recovery of damages, and the principle followed in awarding the same, see note to the case of The General, ante p. 91. Damage by collision was done to a vessel shortly after a contract had been made by her owners for another voyage upon the completion of the voyage she was then on. In consequence of the injury, repairs rendered necessary could not be completed in time to enter upon the contract. It was held that the loss of the earnings contracted for was not too remote, but "that damages which flow directly and naturally, or in the ordinary course of things, from the wrongful act, cannot be regarded as too remote." The Argentino, 14 App. Cas. 519. But a loss of market considered

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Vigilance, as well as experience, is required of a lookout; and if he is inattentive to his duty, it is no sufficient excuse to say that he was competent to perform the required service. Myer's Fed. Decisions, vol. 23, sec. 4935, p. 977. Not only should there be one or more on deck for the purpose of looking out, but they should be properly stationed. Lowndes on Coll. 68. It is no excuse to allege that from the intensity of the darkness no vigilance, however great, could have seen the other vessel in time to avoid the collision. The Mellona, 3 W. Rob. 7. The proper position for the lookout on paddle wheel steamers plying in crowded thoroughfares is on the bridge between the paddle boxes. The Wirrall, ibid 56. A strict lookout is not so essential to a vessel having the right of way as to one bound to give way.

The Progress, 7 Mitch. 433. One or two hands should be specially stationed on the lookout by day as well as at night. The Diana, 1 W. Rob. 131; The Glannibanta, 1 P. D. 283; one on a large steamship in a crowded part of the English Channel insufficient. The Germania, 3 Asp. 270s. c. 21 L. T. N. S. 44. But on the Clyde, in daylight, the pilot, an officer and a seaman held sufficient. Clyde

Nav. Co. v. Barclay, 1 App. Cas. 790. On the Thames the lookout should be on the forecastle head. The Hallett, Ad. Div. Aug. 9, 1887; and it is negligence on the Tyne without an anchor watch. The Pladda, 2 P. D. 34. The absence of a lookout, contributing to collision, renders vessel liable, although the other vessel had not observed the regulations as to light. The Englishman, 3 P. D. 18. Fault does not necessarily attach to a vessel for not having a lookout astern on a clear night. The Earl Spencer, L. R. 4 A. & E. 431; The City of Brooklyn, 1 P. D. 276; but would be held in fault probably for not showing stern lights. The Nevada, 16 Otto. 154. A ship having another in tow must be especially vigilant, and have a lookout for both. The Jane Bacon, 27 W. R. 35. Local rules of navigation may enjoin greater strictness in some places than in others. The Margaret, 9 App. Cas. 873. Glasses must be used where really needed. The Hibernia, 2 Asp. 454; and they were held necessary where a steamer was coming into a harbor at night. The Ville du Havre, 7 Benedt. 328. See also The Clementine, Young's Ad. Decisions, 186; The Alhambra, ibid, 249; and The Iona, L. R. 1 P. C. 426. The ship is responsible for the fault of her lookout. The Mary Bannatyne, 1 Stuart, p. 355. The owner is liable when

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THE

the accident is attributable to a deficiency of lookout and management on board of the vessel MAUD PYE, doing the damage. The Secret, 2 Stuart, 133; and not the pilot. The Oriental, ibid, 144. The American law as to lookout is fully as strict as in England or Canada. See the case of The Sunnyside, 1 Otto. 208; The Atlas, 10 Blatchf. 459. Two first-class men should be on the lookout on an ocean steamer; the officer in charge of the deck not sufficient, and they should be placed in the ship's bows. Chamberlain v. Ward, 21 How. 548; or in the part of the ship from which other vessels can best be seen. The Morning Light, 2 Wall. 550. In The Ariadne, 13 Wall. 475, the Supreme Court of the United States held that the vigilance required as to lookout rose according to the speed and power of the vessel and the chances of meeting other vessels. A vessel entering a harbor at night should have all the crew on deck. The Scioto, Davis 359, and daylight does not excuse the absence of a lookout. Catherine v. Dickinson, 17 How. 170.Ferry-boats and vessels crossing the track of ferry-boats must be especially careful. The America, 10 Blatchf. 155; Ince v. East Boston Ferry Co., 106 Mass. 149. A man at the wheel on a pilot boat is not sufficient. The Blossom, Olcott 188.

1885

Dec. 12.

THE EMMA K. SMALLEY-COUSINS.

Collision-Fog-horn-Lookout-Inevitable accident-Libel-Evidence-Variance.

The V., stone-laden, on a voyage from Dorchester to New York, off Tynemouth Creek, in the Bay of Fundy, close hauled on the starboard tack, came into collision with the E. K. S, running free, in ballast, going up the Bay to Moncton. The night was dark and foggy, and from the evidence it appeared that the V. had no mechanical fog-horn, as required by the regulations, and that the one she had was not heard on board the E. K. S., which was to windward.

Held:-That it was a case of inevitable accident; that the E. K. S. was not to blame, and the action was dismissed without costs to either party.

It is a rule of the Admiralty that where there is a material variance between the allegations of the libel and the evidence, the party so alleging is not entitled to recover, although not in fault, and fault is established against the other vessel.

This is an action of collision promoted by the owners of the Canadian schooner Vesta, against the American schooner Emma K. Smalley. On the part of the promovents it is alleged in their libel that on September 2, 1882, the schooner Vesta, of the burthen of 130 tons, left Dorchester for New York. On the evening of September 3, about 9 p. m., the Vesta was off Tynemouth Creek, in the Bay of Fundy. The wind then was blowing fresh from about west south-west. The Vesta was then on starboard tack, close hauled, and heading about south. The Vesta then sighted the Emma K. Smalley about four hundred yards distant, running free before the wind, and heading about north-east, or more easterly. The Vesta kept her fog-horn going constantly, and could plainly discern the Emma K. Smalley. The latter vessel was then at a sufficient distance from the Vesta, by the exercise of ordinary care, to have averted the collision. The Emma K. Smalley improperly held on her course, and ran directly into the Vesta, striking her about the starboard main chains, and cutting her down to the water-ways. The Emma K. Smalley, when sighted, was to windward of the Vesta, and the collision occurred solely through inattention

of the Smalley. The Vesta was then of the value of $4,000,
and was built in 1872. The Vesta's cargo was one hundred
and eighty tons building stone, of value of $2,000.
The responsive plea of defendant alleged that:
The Emma K. Smalley is not a British vessel, but belongs
to Eastport, State of Maine, of 185 tons. That she sailed
from Lubec, Me., on September 2, 1882, for Moncton, in
ballast. On September 3, 1882, day commenced with thick
fog, wind south-west, light breezes. At 1 p. m., fog lifted,
and Emma K. made Cape Spencer at about one-half mile.
She was then laid on a course east by south, and was con-
tinued up to 8 p. m., the fog still very thick, with smoke as
night came on, and wind shifted to south south-west. Took
in topsails, and furled outer jib. At 8 p. m., the course was
changed to east, and from that to time of collision the wind
was south south-west abaft the beam. She was kept on the
starboard tack, heading east, and going not more than three
knots. The tide was running to the west about two knots.
At 8 p. m., the blasts on the fog-horn were changed from
one to three blasts, and kept constantly going at intervals of
not less than a minute up to the time of the collision. Three
blasts were blown each time.

A sharp lookout was kept, and there was on deck before and at the collision, captain, mate, cook, and seaman Moran. The mate was on the lookout, John Moran was at the wheel, the cook was forward, and the captain on deck keeping a good lookout. Just previous to and at the time of the collision the fog was very thick with smoke, so that it was impossible to see far ahead. At about 9 p. m., those on Emma K. Smalley heard some one on another vessel, which afterwards turned out to be the Vesta, calling out "Hard up, you are coming into us," or something to that effect, which order was obeyed by the Emma K. Smalley, and almost immediately afterwards the Emma K. Smalley fouled with the Vesta about the main rigging of the Vesta, breaking off the Emma K. Smalley's jib-boom, and breaking the cathead on port side, bow rail on port side, and starting cutwater over to starboard. The vessels were together about five minutes, then parted, and the Vesta passed under the bow of the

1885

THE EMMA K. SMALLEY.

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