NOTE. The Index does not refer to the Digest, nor to the Rules of 1893. For the Rules a separate Table of Contents will be found, ante, p. 534.
See INEVITABLE ACCIDENT. ACCOUNTS. The Court has now jurisdic- tion to settle accounts between co-owners. ACT OF PARLIAMENT.
ADMIRALTY JURISDICTION.- Since the passing of the statute 26 & 27 Vict. c. 24, s. 10 (The Vice-Admiralty Courts Act, 1863), the Court has jurisdiction to enter- tain a claim for damage to a railway car standing on a wharf within the limits of a county, by the hawser of the vessel coming in contact with the car and overturning it. The Teddington, 45.
2. A foreign steamship, the E., while in the harbor of St. John, N. B., loading a cargo of deals, bought and received on board a quantity of coals for the use of the ship. The coals were purchased to be delivered in the bunkers of the steamer, and the coal merchant employed a third party to put the coals on board. The steam power to hoist the coals on board was furnished by the E. The plaintiff was employed by the third party to put the coals on board, and while so employed was injured by the breaking of the hoisting rope. Held, That an action could not be maintained against the steam- er; that the Court had no jurisdiction; and that the Vice-Admiralty Courts Act, 1863, sec. 10, sub-sec. 6, did not confer authority to entertain such an action. The Enrique, 157. (In view of recent decisions it is submit- ted this case must be considered overruled. See note to this case, 161, et seq.)
3. In so far as regards Canadian regis- tered vessels, the Court can entertain claims for masters' and seamen's wages if the amount due is or exceeds two hundred dol-
ADMIRALTY JURISDICTION.-Continued. lars, and this under the Dominion statute, the Seamen's Act, 1873. ibid. See contra. The Jonathun Weir, 79. See note ibid, p. 80, contra.
4. For the statement of the law upholding the jurisdiction of the Court in causes of damages to a stationary object, a bridge for instance, see The Maggie M. and note. ante, p. 185.
AMENDMENT.-See note to The Maud Pye, p. 103.
APPEAL.-An appeal from a decree or order of a Vice-Admiralty Court lies to Her Majesty in Council; but no appeal shall be allowed, save by permission of the judge, from any decree or order not having the force or effect of a definitive sentence or final order (26 Vict. c. 24, s. 22); appeal to be made within six months. See The Ted- dington, 65 n.
(See now, however, "The Admiralty Act, 1891," 402).
APPRAISEMENT.- A commission of sale may issue in the first instance. The Nord- cap, p. 173.
2. See Rules 145 to 154 of 1893 for pres- ent practice as to appraisement and sale. BOTTOMRY BOND.-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 ves- sel were not successful, and after remaining some time at Queenstown, the agent, by directions of the owner, instructed the cap- tain to return with the vessel in ballast to New Brunswick. Unable to get needed funds from the owner or agent to make
BOTTOMRY BOND.-Continued. 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 Bruns- wick. 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 re- quired 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 continu- ation 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 bot- tomry, and that the bond must be upheld. The Elysia A., 28.
See note to this case, p. 42, for citation of authorities.
CASES. For decisions under Sailing Rules see p. 385.
COLLISION. The passenger steamer S., sailing up the river St. John, met the steam- tug N. coming down, near Akerley's Point, where the river is about half a mile wide. The S. was near the western shore, which was on her port side going up; the N. about one hundred and fifty yards from the same side of the river. The S., by keeping her course when she first sighted the N., might have avoided the collision, but instead port- ed her helm, which gave her a diagonal course to starboard towards the east side, and as a result struck the N. on the star- board quarter, and sank her. Held, That the S. was to blame, and liable for the dam- ages sustained; also held that when two vessels are meeting end on, or nearly so, the rule to port helm may be departed from, where there are reasonable grounds for be- lieving such course is necessary for safety, and consequently the N. was not to blame,
COLLISION.-Continued.
immediately before the collision, for putting her helm to starboard. The Soulanges; The Neptune, 1.
2. Two vessels, the R. and the G., were sailing up the river from St. John to Fred- ericton. 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 star- board 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 main chains, 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 Grace, 10.
3. For Imperial and Canadian legislation as to collision see note to The Grace, p. 24.
4. A railway passenger car, standing upon a track on a wharf on the western side of the harbor of St. John, and within the limits of the city of St. John, was injured by a hawser attached and belonging to a steam- ship moored to the wharf. Held, That since the passing of the statute 26 & 27 Vict. c. 24, s. 10, the Vice-Admiralty Court has jurisdiction to entertain a claim for damage to property done by any ship, although the property injured is within the limits of a county, and situate upon the land. The Teddington, 45.
See also judgment of Palmer, J., in this case on application for prohibition. ibid, 54.
5. The A. and the B. came into collision on the high seas. The B. was close-hauled on her starboard tack, the A. on her port tack, running free. It was not shown that the lights of the B. were so placed as to be fairly visible to the A. Both vessels kept their courses, and the collision took place. Held, notwithstanding the lights of the B. were not fairly visible to the A., it was the
COLLISION.-Continued.
duty of the latter to keep clear and give way, and not doing so, she was liable for the damages. The Arklow, 66.
6. The last case was reversed on appeal to the Judicial Committee (9 App. Cas. 136), the Court holding where there has been a departure from an important rule of navi- gation, if the absence of due observance of the rule can by any possibility have con- tributed to the accident, then the party in default cannot be excused.
Where the lights of the complaining ves- sel were not properly burning, and were not visible on board the other vessel. Held, That in the absence of proof that this latter was also to blame, the suit must be dis- missed. The Arklow, 72; s. c. 9 App. Cas. 136.
7. The tug G. was proceeding up the river St. John, and the tug V. coming down; when near Swift Point they came into col- lision, and the V. sank. The G., at the time of the accident, was, contrary to the rules of navigation, near the westerly shore on the port side of the vessel; the V. did not exhibit any masthead white light, as required by the regulations. Held, That both vessels were to blame; that the colli- sion was occasioned partly by the omission of the V. to exhibit her masthead white light, but principally by the course of the G., and a moiety of the damages was given to the V. with costs. The General, 86.
8. The vessel M. G., under command of a pilot, was entering the Miramichi, and near the Horse Shoe Bar, in the lower part of Bay du Vin, came into collision with a lightship there placed for the safety of navi- gation. Held, That under the evidence no fault was attributable to the M. G.; that it was a case of inevitable accident, and the suit was dismissed, but without costs, as the Crown was the promovent, and no costs can be given against the Crown. The Minnie Gordon, 95.
9. The M., close-hauled on the port tack, heading about south-west by west, and going about three knots an hour, with the wind
COLLISION.-Continued.
south, came into collision with the M. P., heading east, and running free about ten knots an hour, and was totally lost. Held, from the evidence, that the M. P. had no proper lookout; that failure to have a proper lookout contributed to the collision, and she was accordingly condemned in damages and costs. The Maud Pye, 101.
10. 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 appears 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 acci- dent; 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 Admi- ralty 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. The Emma K. Smalley, 106.
11. A tug-boat was engaged by the char- terers of a vessel, the E., to tow her from the harbor of St. John, N. B., through the Falls at the mouth of the river, beneath a suspension bridge which spans the Falls at the point where the river flows into the harbor. The vessel towed was chartered to carry a cargo of ice from the loading place above the Falls to New York, and the char- terers were to employ the tug and pay for the towage services. The tug, having waited to take another vessel in tow, together with the E., was too late in the tide, and in going under the bridge the topmast of the E. came into collision with the bridge and was dam- aged. Held, That the Court had jurisdic- tion to entertain the suit; that the delay of the tug in going through the Falls was evi- dence of negligence; and the tug and owners
were condemned in damages and costs. The Maggie M., 185.
12. Two vessels-the M. P. and the P.- came into collision in the Bay of Fundy, whereby the former was badly damaged. The wind at the time was blowing strong from south south-east. The M. P. was hove to on the port tack, under a reefed mainsail; and the P. was close-hauled on the starboard tack. The weather at the time was foggy. The M. P. did not have a regulation fog- horn on board, but had a tin one blown by the mouth. When the P. was first seen by the M. P. she was from a quarter to a half mile distant. The M. P. was loaded with piling, bound for New York. The P. did not change her course, and ran into the M. P. and caused the injury. Held, That al- though the M. P. was on her port tack, she was practically hove to, and could exe- cute 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 occa- sioned by the want of a proper lookout on board the P., and she was therefore con- demned in damages and costs. The Para- matta, 192.
CONVENTION OF 1818.-See The White Fawn, 200.
COSTS.-When both parties in fault, and damages are divided, each party must bear his own costs. See contra The General, 86. 2. Costs are not given against the Crown. The Minnie Gordon, 95.
3. For cases as to security for costs, see p. 128.
EVIDENCE.-It must support the allega- tions in the pleadings. The Emma K. Smalley, 106, and note to case.
FEES. Are now regulated by Rules of 1893, 527.
FISHERY ACTS.-As to the meaning of the words "preparing to fish." The White Fawn, 200.
FOG HORN.-See The Paramatta, note, p. 199; Collision, 10, 12.
HABEAS CORPUS.- The Chesapeake, 208. INEVITABLE ACCIDENT.-See The Emma K. Smalley, 106; The Minnie Gor- don, 95, and note to last case.
INLAND NAVIGATION.-See R. S. C. c. 74, p. 361; R. S. C. c. 79, p. 372. INTEMPERANCE.-As it affects right to wages, 127.
INTERPRETATION OF TERMS. - See pp. 395, 413.
JUDGE.-Appointment now governed by Admiralty Act, 1891, 402.
JUDICIAL COMMITTEE- Law as Appeals to. 65.
LIGHTS.Where the lights of the com- plaining vessel were not properly burning, and were not visible on board the other vessel, Held, That in the absence of proof that this latter was also to blame, the suit must be dismissed. The Arklow, 72.
2. An omission to exhibit a masthead white light will render a tug liable to a moiety of the damages, although the col- lision was mainly caused by the other tug being on the wrong side of the channel of a river. The General; ante, 86.
For existing regulations respecting the navigation of Canadian waters, see ante, p. 372. (R. S. C. c. 79.)
LOOKOUT.-See The Maud Pye, 101, 104; The Emma K. Smalley, 106.
Digest, Collision, 118, 126, 134, 138, 156, 161, 162, 163.
MARITIME LIEN.-The plaintiff brought an action against the P. for wages and dis- bursements as master of the vessel. In answer to the master's request when abroad for a statement of his account and for pay- ment, the managing owner sent the master his individual promissory note for $800, payable with interest, on account of the wages. The managing owner subsequently became insolvent. The master, on his re- turn to St. John, N. B., demanded payment from the owners of his wages and disburse- ments, the sum claimed including the am- ount of the promissory note. The owners, by their counter-claim, sought to set-off against the master's claim, among other things, the amount of the promissory note; but Held, That the master, under the cir- cumstances of the case, had not lost his lien upon the vessel. The set-off was rejected, and the plaintiff held entitled to recover, with costs. The Plover, 129.
See note to this case, ante, 134, where the English, American and Canadian cases are cited.
2. The House of Lords, in The Sara, 14 App. Cas. 209, decided that a master had no lien for his wages and disbursements, but it was subsequently given by the Merchant Shipping Act, 1889 (Imp.), ante, p. 85. The same law now obtains by legislation in Canada as respects the inland waters. p. 370.
3. As to priorities of liens, see note to The Borzone, p. 118.
MARSHAL-Appointment of. See Ad- miralty Act, 1891, 402. MISDEMEANOR.
MORTGAGE.- Vice-Admiralty Courts have jurisdiction in respect of any mortgage when the ship has been sold by a decree of the Court, and the proceeds are under its control. 3 & 4 Vict. c. 65, s. 3, p. 315; 24 Vict. c. 10, s. 11, p. 350.
MUTUAL FAULT.
See DAMAGES - DIVISION of. MOORING.-The Frier, 180.
NAVIGATION.-The same rules of navi- gation, and the same precautions for avoid- ing collisions and other accidents as are now adopted in the United Kingdom and other countries, are also adopted in the Dominion of Canada. R. S. C. c. 79, p. 372.
See INLAND NAVIGATION. NECESSARIES.-As to priority of pay- ment. The Borzone, 116, and note.
2. For present jurisdiction as to necessar- ies, see 3 & 4 Vict. c. 65, s. 6, p. 316; and 54 & 55 Vict. c. 27, s. 2, sub-sec. 2, p. 387. ORDERS IN COUNCIL.-Approving Rules of 1893, 409, 410.
PILOTAGE.-Vice-Admiralty Courts have jurisdiction in respect of pilotage (26 Vict. c. 24, s. 10). This Act is now repealed by Colonial Courts of Admiralty Act, 1890; but the Court has the same jurisdiction over pilotage as the High Court of Admiralty. Under the Merchant Shipping Act, 1854, s. 2, "seaman" includes pilot.
PIRACY.-See The Chesapeake, 208. PLEADINGS.-It is a rule of the Admir- alty that where there is a material variance between the allegations of the libel and the evidence, the party so alleging is not en- titled to recover, although not in fault, and fault is established against the other vessel. The Emma K. Smalley, 106.
See note to this case, p. 114; also ante,
2. Under R. 61, every action now shall be heard without pleadings unless the judge shall otherwise order. p. 425.
POSSESSION.- Power given to any Court, having Admiralty jurisdiction in any of Her Majesty's dominions, to remove the master of any ship, being within the juris- diction of such Court, and to appoint a new master in his stead.
See 17 & 18 Vict. c. 104, s. 240.
2. By 26 Vict. c. 24, s. 10, the jurisdiction of the Vice-Admiralty Courts was extended to claims between owners of any ship regis- tered in the possession in which the Court is established touching the ownership, pos-
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