Ct. o f Af p.] Th e Ar h o. [Ct. o f Ap p.
T hat is perfectly clear and definite, b ut I can see m yself th a t this rule is very d ifficu lt of applica
tion, because i t is quite plain th a t when one deals w ith the question of whether it has been shown th a t the infringem ent could not by any possibility have contributed to the collision, th a t th a t must mean, and does mean, having regard to the facts o f the case. There is the example th at Lord Esher gave in this very case when i t was in the 'Court of Appeal, of a collision on a b righ t, clear, fogless day, and the breach o f the regulations in respect of the fon-horn. I t is obvious th a t in th a t case Lord Esher assumed th a t the judge having to try the case had satisfied his m ind as to the surrounding circumstances—th a t is to say, th a t the day was a b righ t, cloudless day—before he arrived, or could have arrived, at the conclusion th a t there could be no possible connection between the infringem ent and the collision. So in each case you must arrive at the facts, and it is very plain th a t a great deal of evidence going to show what the surrounding facts are w ill also be mate
ria l evidence to show th a t the infringem ent did not in fa ct contribute to the collision. The conse
quence is th a t i t is not an easy m atter in these cases to say whether the proper conclusion is th a t the facts were such th a t the infringem ent could not by any possibility have contributed to the collision, or whether the evidence only shows th at the infringem ent did not in fa ct contribute to the collision. I want to say th is before deal
ing w ith the present case fu rth e r—th at i t is quite plain th a t whichever question you are dealing with, you cannot get rid of the necessity of con
sidering which way the balance of evidence turns the scale, in case there is a conflict of evidence ; and Lord Esher, in his judgm ent va. The Duke o f Buccleuch, when th a t case was in the L ° u r to t Appeal, points out in the clearest way th a t th at is so. He says if there is a dispute as to the way in which one ship is approaching another, and the evidence o f the way in which she is ap
proaching on the one side w ill make it clear th a t it could not have any effect on the collision, and the evidence on the other side w ill show th a t it could, then the court must try the question of how the ship was approaching. Under l*108®
circumstances, having regard to th a t observa
tion, it seems to me perfectly clear th a t m order th a t the onus on the party in frin g in g the rule may be satisfied it is not necessary th a t the evidence should be a ll one way. I t was more or less hinted—I do not th in k it was actually said m terms—by M r. A spinall in his argument th at the only case in which you could say i t was impos
sible there could be no connection between the infringem ent and the collision was a case where it was physically impossible th a t there should have been such a connection, but really he him self departed from th a t contention in his argument In The Duke o f Buccleuch case the suggested im possibility no doubt was based upon the physical fact th a t a sail was intervening, which would have rendered it impossible, having regard to the direc
tio n in which the ship was going, fo r the approach
ing ship to have seen the lig h t if it had been there.
B u t it cannot be doubted th a t i t would equally come w ithin this rule as to im possibility if in point of fa ct there had been no look-out at all. I t is im possible in such case th a t the infringem ent of the rule should be taken to be the cause of the c o lli
sion. B u t i t is impossible to stop at th a t point,
and to say th a t if the look-out people, although there, had been proved to be in a condition in capable of observation—from illness or drunken
ness, or anything else—they would not also come w ithin the rule. I f you cannot stop there, why is one to stop in a case where the facts show th at although the men were there w ith eyes which should have looked out, th eir eyes were in point of fact a ll turned in another direction P I t seems to me th a t if you show th a t although there was an opportunity fo r these people to look out if they had chosen, in fa ct there was no look-out kept, th a t th a t is sufficient. The learned judge seems to me to have come to th a t conclusion, and there seems to me to be a great deal of evidence to ju s tify the conclusion a t which he arrived ; but I do not conceal from myself th a t when one is relying upon the fact th a t those placed to look
out did not in fa ct look-out, one is getting perilously near th a t which the House of Lords said must be excluded from the category of things which can rebut the statutory presump
tio n ; th a t is to say, proof th a t the infringem ent did nor. in fa ct contribute to the collision. B ut th a t is the conclusion which the learned judge has come to, and it does not seem to me th a t we ought to depart from the conclusion of the learned judge unless there is much more cogent reason than there is here to induce us to do so. He put to him self the law properly, and he has arrived at the conclusion th a t in fact the infringem ent could not by any possibility have contributed to the collision, and I do not th in k we ought to d iffer from his conclusion. B u t in this particular case really one is not driven to rely upon th a t finding of the learned judge only, and fo r this reason, th a t we have been advised by the assessors s ittin g w ith us th a t having regard to the very short space of tim e between the tim e when the ketch was firs t projected into the river and the moment o f the actual collision, which was fo rty-five seconds only, it is impossible th at the presence of any lig h t could have made any difference whatsoever as to the happening of the accident. Upon th is question of seaman
ship it is rig h t we should be guided by their opinion.
Ro m e r, L .J .—I also th in k th a t th is judgm ent should not be disturbed. As I understand the judgm ent, the learned President has come to the conclusion of fa ct th a t the breaking of the rule as to the lig h ts by the B a ta v ia did not and could not by any possibility have contributed to the collision, and th a t t]ifi look-out cn the A rgo the so-called look-out—was such th a t even if the proper lig h ts had been exhibited on the B a ta v ia she would have failed to see her in such tim e th a t the collision could have been prevented. I have carefully attended to the evidence, and in the result I am not disposed to d iffer from the con
clusion of fa ct at which the President has arrived.
He had the inestimable advantage of seeing the witnesses. I say inestimable, because in such a case as th is much must depend upon what weight is to be attached to the evidence given by mdi-vidual witnesses.
Sm i t h, forty-five time. I
L .J .—I ought to say th a t I mentioned seconds as indicating the shortness ot do not pledge m yself to th a t tim e it was very short. Appeal dismissed.
Ct. o f Ap p.] Th e Sa n s p a r e i l. [ Ct. o f Ap p.
Solicitors fo r the p la in tiffs, H olm an, B ird w oo d, and Co.
Solicitors fo r the defendants, P ritc h a rd , and Sons, agents fo r Hearfi.eld and Lam bert, H u’l.
M ay 16 and 17, 1900.
(Before Sm i t h, Wi l l i a m s, and Ho m e r, L.JJ.
and Na u t ic a l Assessors.) Th e Sa n s p a b e il. (a)
a p p e a l f b o m t h e p r o b a t e, d iv o r c e, a n d A D M I R A L T Y D I V I S I O N .
C o llis io n — Tug and. tow and a ship o f w a r— D u ty o f single vessels to avoid crossing course o f large fle e t— E xem ption o f H e r M ajesty’s ships fr o m R egulations f o r P reve ntin g C ollisions a t Sea— O rder in C o un cil o f June 1899 ap p lyin g collision regulations to H e r M a je s ty ’s ships— R e gu latio ns f o r P reve ntin g C ollisions a t Sea, arts. 19, 21, 27, 29— M e rc h a n t S h ip p in g A ct 1894 (57 & 58 Viet. c. 60), ss. 419, 741.
The s ta tu to ry sanction imposed by sect. 419 o f the M erch an t S h ip p in g A c t 1894 f o r a breach o f the c o llis io n regulations has no a p p lic a tio n to a m erchant tra d e r w h ich is crossing the course o f one o f H e r M a je s ty ’s ships fr o m starbo ard to p o rt, because the ob ligations imposed by arts.21 and 27 are only applicable to ships both o f which are bound to obey the regulations.
Under o rd in a ry circumstances a tug and tow are not ju s tifie d in crossing ahead o f a fle e t o f w a r ships w hich has the tug and tow on the starboard hand, and the tug and tow ought not to keep th e ir course and speed under a rt. 21 o f the collision regulations.
A vessel w h ich neglects, in disregard of arts. 27 and 29 o f the collision regulations, to depart fr o m any o f the collision regulations is not to be deemed in f a u lt under sect. 419 o f the M erchant S h ip p in g A c t 1894.
Th is was an appeal by the defendant, the navigat
ing officer of H .M S. Sanspareil, from a judgm ent of Gorell Barnes, J. pronouncing him alone in fa u lt fo r a collision between the S anspareil and the p la in tiffs ’ sailing ship East L o th ia n (82 L . T.
Rep. 356; 9 Asp. Mar. Law Cas. 59).
About 10.30 p.m. on the 7th Aug. 1899 the E ast L o th ia n , while on a voyage from Nantes to C ardiff in tow o f the tug S ir W. T. Lewis, was in the English Channel on a course N. 9 degrees E., the W o lf Rock bearing about N . by W ., distant about thirteen miles.
The S anspareil was one o f a large squadron of ships of war returning from the manoeuvres. The tug and tow were heading so as to cross the course of th " squadron from starboard to port.
The ships were proceeding in four columns, in line ahead, and the S an spa reil was the leading ship of the second column.
The tug and tow kept th e ir course ahead of the firs t column of ships and safely passed them, and as they approached the second column the helm of the S an spa reil was ported in order to pass astern of them, but shortly afterwards starbo? rded, w ith the result th a t the ram struck the p ort side of the East L o th ia n , causing such damage th at she sank in a few minutes.
(■>) Reported by Bu tle r As p in a l l, Esq., Q.C., and SOTTOS Tim m is, Esq., Parrister-at-Law.
A t the tria l of the action Gorell Barnes, J. gave judgm ent fo r the pla in' iffs.
The defendant appealed.
The A tto rne y-G e ne ra l (S ir R B. F inlay, Q.G) and A cla nd fo r the appellant.—I t was bad seaman
ship o f the tug and tow to attem pt to pass ahead of the fleet. They ought to have waited u n til it had passed. There were here special circum stances w ithin the meaning of art. 27, and i t was consequently the duty of the tug and tow to depart from art. 21. In other words, arts. 27 and 29 o f the regulations were applicable. Tbe plain
tiffs have infring e ! those articles, and therefore th e ir ship ought to be deemed to be in fa u lt w ith in the meaning of sect. 419 o f the Merchant Shipping A ct 1894.
Joseph W alton, Q.C. and S c ru tto n fo r the respondents.—There was no duty on the tug and tow to keep out of the way of the fleet. The duty, if it exists at a ll, is outside the Regulations for Preventing Collisions at Sea. I t is impossible to say when such duty arises. Are merchant ships bound to get out of the way of one or two ships of war when in company P The regulations are expressly silent as to this. B ut, even if the plain
tiffs were wrong in keeping on across the fleet, it is subm itted they cannot be held to blame. Such negligence would not be a breach of a statutory rule, and therefore the case of The M onte Rosa (68 L. T. Rep. 299; 7 Asp. M ar. Law Cas. 326 ; (1893) P. 23) is in point, fo r the defendant by the exercise o f ordinary care and s k ill could have avoided the consequences of the p la in tiff’s negli
gence :
The M a rg a re t, 52 L . T . Rep. 361 ; 5 A sp. M a r.
L a w Cas. 204 ; 9 A p p . Cas. 873.
A rt. 27 does not apply because there were no
“ special circumstances ” in th is case. I t is adm itted the collision was due to a wrong manoeuvre on the part of the defendant. Had not the helm of the S an spa reil been starboarded at a wrong tim e she would have cleared the E ast L o th ia n .
The A tto rne y-G e ne ra l replied.
Sm i t h, L .J .—This is an appeal from my brother Barnes, and it is an action brought by the merchant ship E ast L o th ia n against the navi
gating lieutenant of H.M.S. S anspareil. No technicalities have been raised, but the action has been fought upon the basis th a t it is an action between subjects of the Queen. The mer
chant ship contended th a t she was run into and rammed by the S anspareil by reason of the neglect o f those in charge of the S anspareil on the day on which the occurrence took place. I t took place a t about 11 p.m. on the 7th Aug. last, S.W. of Lizard P oint, and the E ast L o th ia n sank, and some loss of life occurred. Whereupon the E a s t L o th ia n brings an action against the Sans
p a re il. The facts are not in dispute, and are very clear. On the n ig h t in question the fleet, a squadron of H.M . ships of war, was steaming up Channel. They were in fo ur lines or columns.
The southernmost line or column consisted of about eight cruisers, headed by a cruiser called the E uropa. On the p o rt side of th a t line—that is, to the north of th a t line—came a line of battle
ships. There were seven battleships in th a t line, headed by the S anspareil, which is the battleship which ran down and sank the E ast L o th ia n . To the north of th at line o f battleships there was
Ct. o f App.]
another line o f battleships, headed by a battle
ship called the A le x a n d ria , and there were seven vessels in th at line. To the north of th a t line there was another line of cruisers, consisting of eight vessels. The squadron, coming up the English Channel, was two and a quarter miles in breadth, and the length of the different columns was from a m ile and three-quarters to two miles.
The E a s t L o th ia n was going from Nantes to C ardiff, and was proceeding in a northerly direc
tion ; in other words, it was crossing the water which th is squadron was in, and came up w ith the squadron when the E a s t L o th ia n and hei tug were going to the north. I t is an adm itted fa ct in this case th a t the tug and tow had a ll th e ir ligh ts burning properly, and th a t the tug had two white lights, one above the other, at the regulation dis
tance, which showed any seaman th a t the tug was a vessel which had another vessel in tow. The squadron, which was on the port side <.f the East L o th ia n—th a t is, to the westward—was seen at a distance of about six miles on the n ig h t in ques
tion, and the vessels in i t had a ll th e ir ligh ts up.
The E a s t L o th ia n proceeded on her course, towed by the tug, and so the m atter went on. The fleet was steaming at a speed of ten knots an hour, and the E ast L o th ia n and her tug were *oing at about six knots an hour. That they were crossing ships _th a t the E ast L o th ia n was crossing the squadron
—cannot be denied. W hat happened was th is : The E a s t L o th ia n crossed the leading ship of the couthemmost line o f cruisers, the E uropa, and nothing occurred. When she got to the line of battleships, a t the head of which was the Sans- p a re il—and I should say th a t the line of battle
ships was no less than three-quarters of a mile off the southernmost line of cruisers, and each of these fo ur lines were three-quarters o i a m ile apart, and they were follow ing each other at a distance of somewhere about 400 yards—-when the E ast L o th ia n in the position I have indicated, w ith lig h ts burning, and w ith two lig h ts on the tug got to the firs t line of battleships, the navi
gating lieutenant o f the S anspareil somehow or other—I do not know how, it is adm itted he was negligent about th is—ported his helm to go astern of the tug, but understanding and m istaking, and w rongfully m istaking, th a t the tugboat bad nothing behind it, when in re a lity it had the E ast L o th ia n , then starboarded his helm to get back into line. He starboarded his helm, and did not see the b rig h t lig h t of the E ast L o th ia n , and there is no com plaint about th a t lig h t. He starboarded his helm to get back into line and rammed the E ast L o th ia n , and thereupon the owners of the E ast L o th ia n bring an action against the Sans
p a re il to recover damages. My brother Barnes has held th a t the S an spa reil was solely to blame, and he was advised by his nautical assessors. We are advised by ours, and I w ill state what they advise us in a moment.
The proposition which is adumbrated by the learned Attorney-General, though I adm it he did not state it in so many words, and when T p u t my proposition he said he did not contend fo r it, is really th is : T hat a squadron of H er M ajesty’s ships m ight proceed in fo ur lines in the manner which I have described th is squadron as doing, and th a t it is the duty of every one of H er M ajesty’s subjects, and anybody else, to get out of the way. That is what the Crown wish to have held, and I can
[Ct. o f Ap p. find neither rule nor regulation, nor A ct of Parliam ent, nor rule of Jaw, nor anything which w ill support that, and it seems to me th a t when H er M ajesty's ships are navigating the waters they must observe the good principles of navi
gation, ju s t the same as any other o f H er M ajesty’s subjects, and th a t those rules are binding upon Her M ajesty’s ships ju s t as they are on H er M ajesty’s other subjects. T hat brings me to the rules. I t is very clear to my m ind bow
gation, ju s t the same as any other o f H er M ajesty’s subjects, and th a t those rules are binding upon Her M ajesty’s ships ju s t as they are on H er M ajesty’s other subjects. T hat brings me to the rules. I t is very clear to my m ind bow