(Collision.)

was practically hove to, and could execute no manœuvre to avoid the collision; that the absence of a regulation fog-horn on board did not occasion or contribute to the collision; but that the collision was occasioned by the want of a proper lookout on board the P., and she was therefore condemned in damages and costs. The Paramatta, Stockton, 192.

169. Two steamers of considerable length and draught, the one entering and the other leaving the port of N., signalled to each other that they both proposed to take the same channel, which, though short, was narrow and tortuous. The one steamer being fully committed to the channel, it was, under Art. 18 of R. S. C. c. 79, the duty of the other steamer to remain completely outside until the first had passed completely through.

(2) Where a collision appears possible, but as yet easily avoidable, neither vessel has a right to adopt manoeuvres which place the other vessel in a position of unnecessary embarrassment or difficulty. The wrong-doer is solely responsible for damages from a consequent collision. The City of Puebla, 3 E. C. R. 26.

170. Two steamers were approaching each other near a public harbor in a dense fog, those in charge having mutually learned their approximate whereabouts by an interchange of blast signals. Notwithstanding such proximity, and the fact that the courses they were steering were such as would have brought them across each other's bows, one of them maintained a speed of from three to four miles an hour, and was running with a tide, at flood force, of one and a half knots per hour; the other was steaming at a speed of about three knots an hour, and no effort was made to alter her course. A collision occurred. Held, That both vessels had infringed the provisions of Arts. 13 and 18 of the Imperial Regulations for preventing collisions at sea, and were, therefore, mutually to blame for the collision.

(2) The word "moderate" in Art. 13 is a relative term, and its construction must depend upon the circumstances of the particular case. The object of this article is not merely that vessels should go at a speed which will lessen the violence of a collision, but also that they should go at a speed which will give as much time as possible for avoiding a collision when another ship suddenly comes into view at a short distance. It is a general principle that speed such that another vessel cannot be avoided after she is seen, is unlawful. (The Zadok, 9 P. D. 114, referred to.)

(Collision.)

(3) The owner of a ship wrongfully injured in a collision is entitled to have her fully and completely repaired, and if a ship is totally lost the owner is entitled to recover her market value at the time of the collision.

(4) Where both ships are at fault, the law apportions the loss by obliging each wrong-doer to pay one-half the loss of the other. (The provisions of sec. 12 of R. S. C. c. 79, limiting the liability of the party at fault in a collision to a sum of $38.92 for each ton of gross tonnage, was applied to this case.) The Heather Belle; The Fastnet, 3 E. C. R. 40.

171. Under the provisions of section 10 of the Navigation Act (R. S. C. c. 79), where a collision occurs, the ship neglecting to assist is to be deemed to blame for the collision in the absence of a reasonable excuse.

Two steamships, the C. and the J., were leaving port together in broad daylight, and a collision occurred between them. The J. received such injury as to be rendered helpless. The C. did not assist, or offer to assist, the disabled ship, but proceeded on her voyage. The excuse put forward by the master of the C. was that the J. did not whistle for assistance, although the evidence showed that he must have been aware of the serious character of the damage sustained by her. He further attempted to justify his failure to assist by the fact that other ships were not far off; but it was shown that these ships were at anchor and idle. Held, That the circumstances disclosed no reasonable excuse for failure to assist on the part of the C., and that the consequences of the collision were due to her fault. Held, also, That the C. was in fault under Art. 16 of sec. 2 of the Navigation Act, for not keeping out of the way of the J., the latter being on the starboard side of the C. while they were crossing. The Cutch, 3 E. C. R. 362.

172. The steamship S. was proceeding up the harbor of Sydney, C. B., at a rate of speed of about eight or nine miles an hour. When entering a channel of the harbor, which was about a mile in width, her steam steering gear became disabled, and she collided with the J., a sailing vessel lying at anchor in the roadstead, damaging the latter seriously. It was shown that the master of the S. had not acted as promptly as he might have done in taking steps to avoid the collision when it appeared likely to happen. Held, That even if the breaking of the steering gear-the proximate cause of the collision was an inevitable accident, the rate of speed at which

(Collision.)

the S. was being propelled while passing a vessel at anchor in a roadstead such as this was excessive, and that, in view of this and the further fact that the master of the S. was not prompt in taking measures to avert a collision when he became aware of the accident to his steering gear, the S. was in fault and liable under Article 18 of sec. 2 of R. S. C., c. 79. Held, also, That the provisions of Art. 21 of sec. 2 of R. S. C., c. 79, should be applied to roadsteads of this character, and that, inasmuch as the S. did not keep to that side of the fair-way in mid-channel which lay on her starboard side, she was at fault under this Article, and responsible for the collision which occurred. The Santanderino, 3 E. C. R. 378.

173. During the early hours of the morning of August 12th, 1891, a collision occurred between the plaintiffs' vessel lying moored to a dock in Windsor, Ont., and a barge in tow of a tug. The defendants in their pleadings admitted the collision, but claimed that the plaintiffs' vessel was in fault, since there was no light on board and no stern-line out, in consequence of which latter neglect she swung out into the stream as the tug and its tow were passing at a reasonable distance away from her, and that the collision was occasioned thereby.

(1) Upon the question as to whom should begin, Held, That the defendants having admitted that their vessels were moving and the plaintiffs' vessel was at rest, and that a collision had occurred, they must begin on the question of liability for the accident, with a right to reply on the question of the amount of damage, if it were necessary to go into that question. Held, also, That it was necessary for the defendants to establish such negligence against the plaintiffs as would contribute to the accident, and that as it was about daylight at the time of its occurrence, and the plaintiffs' vessel was admittedly seen by the tug when more than one hundred feet distant, the tow being at that time three hundred feet behind the tug; and further, since the evidence showed that the plaintiffs' vessel was properly and securely moored to the dock, the absence of light did not constitute such negligence on the part of the plaintiffs as contributed to the accident. They were, therefore, entitled to recover for the damage arising from the negligent navigation of the tug and her tow, to the amount of the actual cost of the repairs and also the cost of towage to the ship-yard.

(2) A survey of the damage done to their vessel was made at the plaintiffs' instance. Notice of intention to have a survey made was

(Collision.)

only given to one of the defendants, and that by mailing a letter to his address on the day before the survey was made. Notice of the result of the survey was given to the defendants. Held, That the cost of the survey was not chargeable to the defendants, because reasonable notice was not given to enable them to be present or to be represented thereat. Held, also, That demurrage should not be allowed, inasmuch as the vessel was lying idle at the time of the collision, and that as soon as the plaintiffs obtained a commission for her the vessel went to work, although repairs were not then completed, no loss of earnings occurring by reason of the accident. Charlton et al. v. The Colorado and Byron Trerice, 3 E. C. R. 263.

COMMISSIONS.

1. Commission of Vice-Admiral in and over the Province of Quebec, under the Great Seal of the High Court of Admiralty of England, dated March 19, 1764. 1 Stuart, 370.

2. Commission of Judge of Vice-Admiralty Court of the Province of Lower Canada, under the Great Seal of the High Court of Admiralty of England, dated October 27, 1838. 1 Stuart, 376.

3. Commission under the Great Seal of the United Kingdom of Great Britain and Ireland, for the trial of offences committed within the Admiralty jurisdiction, dated October 30, 1841. 1 Stuart, 380.

For a history of the Commission from the Lord High Admiral to the Vice-Admiral, see The Little Joe, Stewart, 394. —of unlivery-the Court appoints the place. La Merced, Stewart, 219.

COMPULSORY PILOTAGE.

1. For a collision occasioned by the mismanagement of a pilot, taken on board and placed in charge of a ship in conformity with the requirements of the law, enforced by a penalty, the vessel is not liable. The Lotus, 2 Stuart, 58.

2. The owners of a vessel having a branch pilot on board are only exempt from liability for damage where the damage is caused exclusively by the negligence or unskilfulness of the pilot. The Courier, ibid, 91.

3. For damages done by a collision in the harbor of Quebec, occasioned by the default, negligence, or unskilfulness of a branch pilot, the owners are not responsible. The Anglo-Saxon, ibid, 117.

But see subsequent enactment in "The Pilotage Act, 1873," of Canada (now R. S. C. c. 80).

(Compulsory Pilotage.)

4. In Nova Scotia there is no compulsory pilotage in the English sense of the term. Hence, there being a direct privity between the pilot and the ship, the latter is liable in Admiralty for damage caused by his acts. The Wavelet, Young, 34; s. c. 2 Stuart, 354.

5. The rule of the English Admiralty regulating the employment of pilots has never been adopted or applied under the laws of the United States. The China, 2 Stuart, 231.

6. Exemption from liability is not taken away from the owners, though the master has the power of selection from amongst a number of pilots. The Hibernian, ibid, 148.

7. When an ocean steamer descending the river St. Lawrence, opposite a buoy designating a bend in the channel for her to turn, instead of doing so, crosses over and sunk a barge in tow of a steamer on the opposite side, Held, That the tug steamer and her tow were not to blame, by reason of an alleged custom for ascending vessels to stop below the buoy for descending vessels to pass it first; and that if there were such a custom, it would afford no excuse for a descending steamer coming into collision if she could have avoided it. But it appearing that the cause of collision was exclusively the act of the pilot of the ocean steamer, exemption of liability granted to the owner. The Thames, ibid, 222.

8. No owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any place where the employment of such pilot is compulsory by law. See 388th section of "The Merchant Shipping Act, 1854," and the 14th section of 31 Vict., c. 58 (Can.). A change was made by sec. 56 of "The Pilotage Act, 1873," which enacts "that after its commencement no owner or master of any ship shall, in any case, be compelled to employ or to give his ship into the charge of a pilot, notwithstanding any Act making the employment of a pilot compulsory." Sec. 92 of this Act repeals sec. 14 of 31 Vict. c. 58. The employment of a pilot is not now compulsory. "The Pilotage Act," R. S. C., c. 80, sec. 57.

9. Circumstances under which owners, who have taken a pilot on board under compulsion of law, are not allowed to throw the responsibility of an accident upon him. The Agda, Cook, 7.

10. Compulsory pilotage done away with in Canadian waters by the Canadian Act. "The Pilotage Act, 1873," see No. 8. The Quebec, ibid, 31.