1880 whereas the certainty which results from an adherence to general rules is absolutely essential to the safety of naviga- THE GRACE. tion. It is no defence to a vessel clearly in the wrong that the other vessel, at the moment of danger, did not use every means that might appear proper to a cool spectator, unless she can also shew such negligence on the part of the other vessel as materially contributed to the collision." Such negligence on the part of the Ranger, in my opinion, has not been shewn. Two witnesses, Mr. Luke Stewart and Mr. John Gibson, were examined on behalf of the respondent as to a conversation had by them, a few days after the collision, with the master of the Ranger, relating to the collision, in which they represent the master as stating that he observed some trouble on board the Grace whilst the vessels were two or three lengths apart; that Stewart asked the master if he had done anything to avoid the collision by putting his helm either up or down; that the master replied the mate was at the wheel at the time, and that the mate had done nothing but keep on his course; that to a question by Mr. Stewart whether, if he had made any effort by putting the helm up or down, the collision could not have been avoided, the master answered he could not say but it might; and further on, being asked why something was not done by the crew of the Ranger to avoid the collision, the master's answer, according to Mr. Gibson, was, that he was on his proper course or tack, and did not consider he had any right to alter it. The reply, according to Mr. Stewart, was, because he was on his course, and he was not bound to do it. If the respondents had intended to bring this conversation forward as part of their defense, it would have been more satisfactory, and I think regular, to have set it out in the responsive allegation, whereby an opportunity would have been afforded for interrogatories and inquiry into the whole conversation. The respondents, however, neither asserted it in their pleading, nor interrogated the master concerning it. It was strongly pressed in the argument that these statements by the master must be taken against him as shewing that he had timely knowledge of the difficulty which had 1880 THE GRACE. befallen the Grace, and could, therefore, have avoided the collision. After carefully reading and comparing the whole testimony, I have come to the conclusion, satisfactory to my mind, that the great preponderance and balance of the evidence corroborates the sworn deposition of the master as to the true condition of affairs at and immediately before the collision. Upon the whole view of the case, I am of opinion that the collision was caused by the default and mismanagement of the Grace, and I pronounce for the damages accordingly. Interest from about 1st March, 1880, say 63 mos., I also give promovents their costs. It may be useful to trace the legislation both in England and Canada on the subject of Collisions at Sea. Under the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104, sec. 298), it is provided: "If in any case of collision it appears to the Court before which the case is tried that such collision was оссаsioned by the non-observance of any rule for the exhibition of lights or the use of fog signals, issued in pursuance of the powers herein before contained, or of the foregoing rule as to the passing $140 00 586 44 25 00 120 00 100 00 $971 44 31 56 $1,003 00 Decree accordingly. of steam and sailing ships, or of the foregoing rule as to a steamship keeping to that side of a narrow channel which lies on the starboard side, the owners of the ship by which such rule has been infringed shall not be entitled to recover any recompense whatever for any damage sustained by such ship in such collision, unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary." The effect of this section was to abolish the Ad miralty rule that a wrong doing ship shall recover half her loss if the other ship was also in fault. See Marsden on Collisions (3 Ed.) 39. The Canadian Act (31 Vict. c. 58, s. 6) enacts substantially in accordance with the 298th section of the Merchants' Shipping Act, 1854 (17 & 18 Vict. c. 304), that "If in any case of collision it appears to the Court before which the case is tried that such collision was occasioned by the non-observance of any of the rules prescribed by this Act, the vessel by which such rules have been infringed shall be deemed to be in fault; and the owner of such vessel shall not be entitled to recover any recompense whatever for any damage sustained by such vessel in such collision unless it can be shown to the satisfaction of the Court that the circumstances of the case rendered a departure from the said rules necessary." It was accordingly held, under this latter section, by the ViceAdmiralty Court of Quebec, in The Eliza Keith, Cook 107, that neither ship could recover where there had been a departure from the sailing regulations. This case was affirmed on appeal to the Privy Council, May 9th, 1878. The Imperial Parliament amended 17 & 18 Vict. c. 194, sec. 298, by 25 & 26 Vict. c. 63, sec. 29. The latter Act, sec. 29, is as follows: “If, in any case of 1880 collision, it appears to the Court before which the case is tried THE GRACE. that such collision was оссаsioned by the non-observance of any regulation made by or in pursuance of this Act, the ship by which such regulation has been infringed shall be deemed to be in fault unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary." This section of the Act restored the Admiralty rule as to division of loss in cases where both vessels were in fault. For the cases decided in the High Court of Admiralty, under the provisions of this section, see Marsden on Collision (3rd Ed.) p. 40, Note h. Under sec. 29 of 25 & 26 Vict. c. 63, it became necessary to decide in every case whether a ship infringing a regulation was guilty of negligence, and thereby causing or contributing to the collision. In Marsden on Collision (3 Ed.) 40, it is said: "The application of the doctrine of Tuff and Warman prevented the above Statutes from having the effect desired by those who framed them. Attention appears to have been called to the subject by the decision in The Fenham, L. R. 3 P. C. 212, and 36 & 37 Vict. c. 85, s. 17, the enactment now in force was passed in consequence." The language of 1880 sec. 17 of the last named Act is: THE GRACE. “If, in any case of collision, it is proved to the Court before which the case is tried that any of the regulations for preventing collisions contained in or made under the Merchants' Shipping Acts 1854 to 1873 has been infringed, the ship by which such regulation has been infringed shall be deemed in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary." The following are some of the cases, in the High Court of Admiralty, decided under the last named section, viz.: The Englishman, 3 P. D. 18, The Khedive, 6 App. Cas. 876, The Lepreaux, 7 App. Cas. 512, The Imbro, 14 P. D. 73, The Duke of Buccleuch, 15 P. D. 86, s. c. 1891, A. C. 310, The Arklow, 9 App. Cas. 136. The Canadian Parliament, following the example of the mother country, enacted, in 43 Vict. c. 29, sec. 6, now R. S. C. c. 79, sec. 5, that "If, in any collision, it appears to the Court before which the case is tried, that such collision was occasioned by the nonobservance of any of the rules prescribed by this Act, the vessel or raft by which such rules have been violated shall be deemed to be in fault, unless it can be shown to the satisfaction of the Court that the circumstances of the case rendered a departure from the said rules necessary." Section 8 of this Act restores the Admiralty rule as to division of damages when both vessels are in fault. the Canadian Act, 43 Vict. c. 29, It is important to notice that. sec. 6, is almost identical with the English Act, 25 & 26 Vict. c. 63, sec. 29, and that there is a manifest distinction between the Canadian Act and the English Act now in force, 36 & 37 Vict. c. 85, sec. 17. In The Woodrop-Sims, 2 Dods 83, a case of collision, Lord Stowell said: "There are four possibilities under which a loss of this sort may occur. 1st. It may happen without blame being imputed to either party, as when a loss is occasioned by a storm, or by any other vis major; in that case the misfortune must be borne by the party on whom it happens to light, the other not being responsible to him in any degree. 2ndly. A misfortune of this kind may arise when both parties are to blame-when there has been a want of skill and due diligence on both sides; in such a case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both. 3rdly. It may happen by the misconduct of the suffering party alone; and then the rule is, that the sufferer must bear his own burthen. 4thly. It may have been the fault of the ship which ran the other down; and in this case the injured party would be entitled to an entire compensation from the other." See Marsden on Collision (3 Ed.) 126, Marsden's Ad. Cases, 235 et seq. When Lord Chancellor Selborne introduced into the House of Lords the bill which afterwards became the Judicature Act of 1880 1873, it was his purpose to abol- THE GRACE. ish the rule as to division of damages, and in this respect assimilate Admiralty and Common Law, but the Registrar of the Admiralty Court (Mr. Rothery) vigorously protested, and it was abandoned. See Maclachlan on Shipping (4 Ed.) 318. |