(Bottomry Bond.)

3. A bottomry bond given by the master after the advances had been made is valid, provided they were made with an understanding that such bond should be given. ibid.

4. The validity of the bond is not affected by the circumstance of the money being advanced before an intervening voyage if given for advances necessary for the vessel to prosecute and complete the original voyage. ibid.

5. Unless fraud or collusion is proved, or that other credit existed, every fair presumption is to be allowed to uphold the bond. ibid.

6. The ports of the Dominion of Canada are to be accounted "home ports" in relation to each other, and a bottomry bond given on a Canadian vessel in a Canadian port cannot be enforced within the jurisdiction of the Admiralty. The Three Sisters, ibid, 370; s. c. Young, 149.

7. Admiralty Courts recognize the negotiability of bottomry bonds, but aid their transfer reluctantly. The City of Manitowoc, Cook, 178.

8. A vessel owned and registered in New Brunswick was sent with a cargo of deals from that province to Queenstown, Ireland, the intention being to sell her to best advantage, after arrival and discharge of cargo. Efforts to sell the vessel were not successful, and after remaining some time at Queenstown, the agent, by directions of the owner, instructed the captain to return with the vessel in ballast to New Brunswick. Unable to get needed funds from the owner or agent to make necessary disbursements for return voyage, the captain, after due notice, borrowed from plaintiff the required amount on bottomry and brought the vessel back to New Brunswick. After her arrival, the bondholder, not being able to obtain payment, began suit for recovery of the amount. The owner and mortgagees of the vessel objected to the validity of the bond, on the ground that, under the circumstances, the voyage was ended at Queenstown; that the vessel required no repairs for a new voyage; was in no distress, and that the captain had no right to give the bond. But Held: That as the vessel was sent for sale, and that not being effected, the return was but a continuation of the voyage across; that Queenstown was a foreign port; that as the captain was unable to get necessary funds in any other way, he was justified in borrowing on bottomry, and that the bond must be upheld. The Elysia A., Stockton, 28.

(Bottomry Bond.)

9. The hypothecation of a ship is only justified when it is done to secure amounts due for necessary repairs to enable the ship to proceed with the voyage, or for necessaries or provisions required for the same purpose. Furthermore, in order to enable the creditor to benefit by the hypothecation, the following elements must be present in this transaction: (a) the repairs must be performed and the necessaries or provisions supplied on the express condition that the claim is to be secured by a bond; (b) there must be a total absence of personal credit on the part of the owner or master; (c) before pledging the ship, the master should, if it was at all possible to do so, have communicated with the owner; and (d) there must not be sufficient cash or credit available to the master to pay the amount of the indebtedness so incurred.

(2) A master gave a bottomry bond on his ship for repairs executed some time previous to the voyage he was then prosecuting, and which were done entirely on his personal credit at the time and upon the distinct understanding that he would not be required to pay for them until his return from another voyage. It also appeared that the master had not communicated with the owners before entering into the bond, although means of communication were open to him; and it was, moreover, shown that the ship had enough credit at the place where the bond was made to pay the whole amount of the claim. Held: That the bond was void. (3) A ship-broker's commissions cannot be the subject of a bottomry bond. The St. Joseph, 3 E. C. R. 344.

BROUGHAM (LORD).

1. The Imp. Act 14 & 15 Vict. c. 99, is commonly called Lord Brougham's Act. It makes the evidence of interested persons admissible. The Courier, 2 Stuart, p. 95.

CASES.

For list of, under sailing regulations, see ante, p. 385.

CERTIFICATES OF ORIGIN.

As to ground of confiscation. The American, Stewart, 286.

CLEARING.

1. Clearing out to Boston, entering, trading, and clearing out from thence to Halifax was an importation contrary to the statute, and both vessel and cargo were accordingly condemned. The Union, Stewart, 98.

COLLISION.

1. There are four probabilities under which a collision may

(1) It may occur from the fault or misconduct of the vessel

suffering from the collision.

(2) Or, the accident may have happened from unavoidable circumstances, without fault on the part of either vessel. (3) Or, both parties may be to blame, as where there has been a want of strict or due diligence on both sides.

(4) Or, the loss and damage may be owing to the fault or misconduct of the vessel charged as the wrong doer. In the first two cases, no action lies for the damage arising from the collision.

In the third case, the law apportions the loss between the parties, as having been occasioned by the fault of both of them.

In the fourth case, the injured party is entitled to full compensation from the party inflicting the injury. The Cumberland, 1 Stuart, 75; The Nelson Village, ibid, 156; The Grace, Stockton, 26 n.

(The above possibilities of loss by collision were thus noted by Lord Stowell in The Woodrop-Sims, 2 Dods, 83.)

2. Owners of vessels are not exempt from their legal responsibility, notwithstanding that their vessel was under the care and management of a pilot. The Cumberland, 1 Stuart, 75.

3. A vessel giving a foul berth to another vessel is liable in damages for collision done to the vessel to which such foul berth was given by her, although the immediate cause of the collision was a vis major, and no unskilfulness or misconduct was imputable to the offending vessel after giving such foul berth. ibid.

4. In a case of collision between two ships ascending the river St. Lawrence, the Court, assisted by a captain of the Royal Navy, pronounced for damages, holding that when two vessels are crossing each other in opposite directions, and there is doubt of their going clear, the vessel upon the port or larboard tack is to bear up and heave about for the vessel upon the starboard tack. The Nelson Village, ibid, 156.

5. In cases of collision arising from negligence or unskilfulness in the management of the ship doing the injury, a pilot having the control of the ship is not a competent witness for such ship, without a release, although the master is. The Lord John Russell, ibid, 190. See Witnesses.

(The law as to competency of witnesses is now different. See The Courier, 2 Stuart, p. 95.)

(Collision.)

6. The ship held liable for collision although a pilot on board. The Lord John Russell, 1 Stuart, 190.

7. Where one ship is at anchor, it augurs great want of skill and attention, in a harbor like that of Quebec, for a ship under sail to be so brought to as to run foul of her. ibid.

8. In this case damages awarded in case of collision in the harbor of Quebec. ibid.

9. A pilot act, which obliges vessels going out or coming into port to receive a pilot under a penalty or forfeiture of half pilotage, is not compulsory, but is optional. The ship need not take a pilot if it prefers to pay the penalty or forfeiture. The Creole, ibid, 199.

10. The circumstance of having a pilot on board, and acting in conformity with his directions, does not operate as a discharge of the responsibility of the owner. ibid.

11. Vessels are required of a dark night to show their position by a fixed light, while at anchor in the harbor of Quebec; and the want of such light will amount to negligence, so as to bar a claim for any injury received from other vessels running foul of them. The Mary Campbell, ibid, 222.

12. The master may avail himself of the wind and tide, and sail into port by night as well as by day. ibid.

13. By-laws of Trinity House, respecting lights, not abrogated by desuetude or non-user.

ibid.

14. The hoisting of a light in a river or harbor, at night, amid an active commerce, is a precaution imperiously demanded by prudence, and the omission cannot be considered otherwise than as negligence per se. ibid.

15. By-law of the Trinity House of April 12, 1850, requires a distinct light in the fore-rigging" during the night." ibid, 225, note.

16. In a case of collision against a ship for running foul of a floating-light vessel, the Court pronounced for damages. The Miramichi, ibid, 237.

See No. 164, The Minnie Gordon, Stockton, 95.

17. In such case the presumption is gross negligence or want of skill, and the burthen is cast on the ship master to repel that presumption. The Miramichi, 1 Stuart, 237.

18. How ships moored are protected against the intrusion of ships under sail. ibid, p. 241.

See The Neptune the Second, 1 Dod. 467.

(Collision.)

19. The omission to have a light on board in a river or harbor at night amounts to negligence per se. The Dahlia, ibid, 242.

20. Every night in the absence of the moon is a dark night in the purview of the Trinity House regulations of the 28th June, 1805. ibid.

21. More credit is to be given to the crew who are on the alert than to the crew of the vessel placed at risk. ibid.

22. The regulations of the Trinity House require a strict construction in favor of their application. ibid.

23. Having a light on board in such case is an indispensable precaution. ibid.

24. In a cause of collision where the loss was charged to be owing to negligence, malice, or want of skill, the Court, with the assistance of a captain of the Royal Navy, being of the opinion that the damage was occasioned by accident, chiefly imputable to the imprudence of the injured vessel, and not to the misconduct of the other vessel, dismissed the owners of the latter vessel, with costs. The Leonidas, 1 Stuart, 226.

25. The general rule of navigation is, when a ship is in stays, or in the act of going about, as she becomes for the time unmanageable, it is the duty of the ship that is near her to give her sufficient ibid.

room.

26. But when a ship goes about very near to another, and without giving any preparatory indication from which that other can, under the circumstances, be warned in time to make the necessary preparations for giving room, the damage consequent upon want of sufficient room may arise from the fault of those in charge of the ship going about at an improper time or place. ibid.

27. Or in the case of darkness, fog, or other circumstances rendering it impossible for the ships to see each other so distinctly as to watch each other's evolutions, the fault may be with neither. ibid.

28. If it be practicable for a vessel which is following close upon the track of another to pursue a course which is safe, and she adopts one which is perilous, then, if mischief ensue, she is answerable for all consequences. The John Munn, ibid, 265.

29. In a cause of collision between two steam vessels, the Court, assisted by a captain of the Royal Navy, pronounced for damages and costs, holding that the one which crossed the course of the other was to blame. The By-town, ibid, 278.