Ad m.] Th e Sa n s p a r e i i,. [Ad m.
sideration is peculiarly one fo r the Elder Brethren of the T rin ity House, who have heard th is case as assessors w ith me, to form an opinion upon. They advise me th a t in th e ir opinion the fa ct th a t the white lig h t a ft on the tug was visible before the beam of the tug could by no possibility have con
tributed to the co llision ; whether the white lig h t a ft on the tug was visible from before her beam or not, the other ligh ts on the tug and tow should have shown unm istakably th a t they were on a tug and her tow. Even if the red lig h t of the tow were not noticed at firs t the two tow ing lig h ts forward on the tug were p la inly visible, and would indicate th a t she had a vessel in tow, whether the white lig h t a ft could or could not be seen. Moreover, there is nothing unusual in a tug showing to another vessel, in certain positions, her two white ligh ts forward, her side lig h t, and her white litjh t aft, fo r the firs t three are to show as fa r as two points abaft the beam, and the last may show from a ft to abeam, and thus over two points of the circle on each side the lig h ts overlap. Further, the small white lig h t a ft is, as I have already noticed, a different lig h t from the lig h t mentioned in art. 2 (e), and the defendant says th a t he concluded it was a steamer proceeding alone by only noticing one white lig h t forward and one a ft, besides the red lig h t, and I have already commented on this. It, is to be fu rth e r observed th a t if he only noticed one lig h t forw ard and no lig h t had been visible a ft, the reason which he gave fo r concluding th a t the tug was a steamer proceeding alone shows th a t in th a t case he would have concluded th a t the tug was a steamer proceeding alone and acted as he did, so th a t the fa ct th a t the white lig h t a ft was to some extent visible before the beam of the tug really made no difference whatever in the case.
The second p oint raises a question o f very considerable importance. I t was contended by the Attorney-G eneral th a t the tug and tow ought not to have continued th e ir course and speed across the course of the fleet, but should either have waited t ill the fleet had passed across their bows or starboarded th e ir helms and gone under the stern o f the fleet, and th a t in continuing th e ir course and speed they were g u ilty in the circum stances of an infringem ent of the said regulations.
The particular rules referred to were arts. 19, 21, 27, and 29. They are as follows : [H is Lordship read the articles.] The substance of the argument was th a t although i f the S anspareii had been navigating alone, having the tug and tow crossing her course from starboard to port, she should keep out o f the way o f the tug and tow, and they should keep th e ir course and speed unless and u n til they m ight be compelled to take action as contemplated by the note to a rt 21, yet th a t while the S an spa reii was one of a fleet crossing the course of the tug and tow in the form ation I have described, art. 27 applied and art. 21 ought to have been departed from by the tug and tow, because, owing to the difficulties which the vessels composing the fleet would have in the circum stances in navigating fo r a tug and tow coming in amongst them and crossing th e ir course, and in avoiding collision w ith one another in doing so, due regard was not had by those in charge o f the tug and tow to the dangers of navigation and collision, and the special circumstances which, it was contended, rendered a departure from the
rules necessary in order to avoid immediate danger. I t was also contended th a t art. 29 applied fo r practically the same reason, but as th i* rule does not impose obligations and merely provides th a t nothing in the rules shall exonerate any vessel or the owners or master or crew thereof from the consequences of any neglect to observe certain Droper precautions, th is contention was not really pressed. The objections to the argu
ment also were th a t the articles in question do not apply so as to render the p la in tiff’s vessel subject to the statutory consequences imposed by sect. 419 (4) of the Merchant. Shipping A ct 1894, and th a t the tug and tow were not g u ilty of con
trib u to ry negligence, and th a t there was no infringem ent of a rt. 27 by the tug and tow in the circumstances; th a t is to say, th a t they were rig h t in keeping th e ir course and speed, and th a t there was nothing in the circumstances which rendered i t improper or negligent fo r them to do so. F irs t, w ith regard to the law applicable to the case. The Regulations fo r Preventing Collisions at Sea, of which the articles above referred to form part, were made by Order in Council in 1897, by virtue of sect. 418 of the M erchant Shipping A ct of 1894, which provides th at regulations so made shall have effect as if enacted in th a t A ct, and also applies them, together w ith the provisions of the Act relating thereto, or otherwise relating to collisions, to a ll foreign ships w ithin B ritis h ju risd ictio n , and they and the said provisions of the A ct may, by sect. 424, be applied by Order in Council to the ships of any country when beyond the lim its of B ritis h jurisdictio n, if the Govern
m ent of such country is w illin g th a t they should be so applied. B u t sect. 741 of the A ct enacts th a t the A ct shall not, except where specially pro
vided, apply to ships belonging to H er Majesty, and there is no special provision in the A ct pro
viding th a t the regulations made under i t fo r pre
venting collisions at sea are to apply to such ships. There are, however, precisely sim ilar regulations made in June 1899 fo r H er Majesty’s ships by Order in Council, and the-e are in the Queen’s Regulations and A d m iralty Instructions.
These are not made by virtue of the A ct of 1894, but they are word fo r word the same as those made under the Act, and there are, as I understand, only in addition certain special regulations fo r H er M ajesty's ships, with regard to certain special ligh ts and signals to be used by them only. A rt. 13 contemplates such regula
tions being made. The result is th a t as the Regulations (except the special regulations ju s t referred to) fo r Preventing Collisions at Sea are sim ilar fo r H er M ajesty’s ships and fo r other vessels fo r a ll practical purposes, the navigation of a ll vessels upon the high seas and in a ll waters connected therewith navigable by sea-going vessels m ust be conducted as if the same regula
tions applied to them. This is the only reason
able way of trea ting the m atter. In my opinion, ho «ever, the fact th a t the regulations made w ith respect to H er M ajesty’s ships are not made under and by virtue of the Merchant Shipping A ct 1894, may in cases of collision between such a ship and a vessel to which the regulations o f 1897 apply, affect in some respects the statutory lia b ility imposed on the la tte r vessel by sect.
419 (4) of the A ct. This observation does not apply to most of the regulations which have
64
Th e Sa n s p a b e il. [ Ad m.
Ad m.]
to be obeyed. F or instance, an infringem ent by the tug in th is case o f the rule in regard to lights would, as I have already pointed out, be visited by the statutory penalty unless it could by no possibility have contributed to the collision. Such a breach is not affected by the observance or non-observance by the other vessel of the regula
tions applicable to her. B u t I find a d ifficu lty in applying a statutory penalty in cases of col
lision between a merchant vessel and one o f Her M ajesty’s ships, where the infringem ent by the form er which is complained of is an infringem ent of the 27th combined w ith the 21st rule. This arises from the language of the rules, and may be pointed out by dealing w ith the present case. In navigating fo r each other in the circumstances of this case, and acting on sim ilar regulations, the S anspareil, if she were a single ship, would have to keep out o f the way (art. 19), and the E ast L o th ia n and her tug to keep th e ir course and speed (art. 21), subject to the effect to be given to the note to art. 21 and to art. 27, and i t follows from what I have remarked above th a t it would be neglect of good seamanship and navigation to do otherwise, and if such neglect caused or con
tribu ted to the collision, the vessel in frin g in g the regulation would clearly be held to blame. If, however, a breach of art. 27 combined w ith art. 21 by the E a s t L o th ia n and her tug did not in fa ct contribute to the collision, though by possibility it m ight have done so, then to fix the E a s t L o th ia n w ith blame it is necessary to rely on the statutory penalty imposed by sect. 419 (4) of the A ct of 1894, and to consider s tric tly whether any of the collision regulations referred to in th a t section have been infringed by her or her tug. In my opinion, the collision regulations referred to in th a t section are only those made by virtue of the A c t which, according to sect. 418, are to have effect as if enacted in the A ct, and, as already noticed, the A ct does not apply to H er M ajesty’s ships. The S anspareil, in fu lfillin g a duty to keep out of the way, would, s tric tly speaking, be acting under art. 19 of the Queen’s Regulations, and not under the corre
sponding article of the regulations made under the A ct of 1894, and, s tric tly speaking, the duty of the East L o th ia n and her tug to keep th e ir course and speed according to art. 21 of the la tte r regulations was only where “ by one of these rules ” the other vessel has to keep out o f the way. “ One of these rules ” must, as a m atter of construction, mean one of the regulations made under the A ct of 1894, and a rt. 27 thereof only s tric tly applies to the obeying and con
struing of the same rules. I t appears to me necessarily to follow th a t the statutory pro
visions of sect 419 (4) could not apply in the present case even i f the E ast L o th ia n and her tu g did not act in accordance w ith art. 27.
There was a fu rth e r point taken by the plain
tiff w ith regard to the meaning o f art. 27 of the regulations of 1897. I t is this, th a t th at article does not impose an obligation which can be infringed, but is to be considered solely as in exoneration of the s tric t duties imposed by the other articles. I am not able to agree w ith th is view entirely. I t seems to me th a t there is an express obligation in obeying and construing the rules to use due regard to the circumstances mentioned in the article, and at the same tim e it is d iffic u lt to conceive a case in which there
could be a finding of want of such due regard unless i t in fact contributed to a collision. So th a t I fa il to see bow there can be an infrin g e m ent of art. 27 unless there has been default under i t which contributes to a collision. For these reasons I am of opinion that, in order to establish lia b ility on the part of the p la in tiff fo r the collision in th is case, i t is necessary to show th a t there has been default on the p art o f the E ast L o th ia n or her tug under arts. 21 and 27, which in fa ct contributed to the collision. Even if the tug and tow were wrong in the circum stances in proceeding on at fu ll speed on the course they were on a t firs t, it is clear th a t the S an spa reil could by the exercise o f reasonable care have avoided the collision w ithout any d iffi
cu lty, and, according to well-known principles which are stated in a convenient form in Mr.
Marsden’s book on the Law of Collisions a t Sea, p. 25, the p la in tiff can recover in th is case. I m ight leave the case there, but I th in k it desirable to express the view which the court has arrived at w ith regard to the im portant question as to whether” the tug and tow were rig h t or wrong as a m atter of navigation, having regard to the terms of art. 27, in proceeding on as they did in the circumstances. The argument of the Attorney- General upon th is point was supported by a refer
ence to the follow ing notice to shipowners and masters which has been issued by the Board of Trade fo r some tim e, though the masters of the tug and tow stated th a t they were not aware of it.
I t is as fo llo w s: “ Notice to shipowners and masters of single ships approaching squadrons.—
The Board o f Trade desire to call the attention o f shipowners and masters to the danger to a ll concerned which is caused by single vessels approaching a squadron of warships so closely as to cause danger of collision by attem pting to pass ahead of or to break the line of such squadron.
The Board of Trade find i t necessary to warn mariners th a t it would be in the interests of safety fo r single ships to keep out o f the way and avoid passing through the squadron.”
The Attorney-G eneral did not rely upon this notice as having any binding effect like the regulations have, but as supporting his conten
tio n th a t fo r a single ship to 3tand on in amongst a squadron was fo r her to run into such danger th a t she should be held g u ilty of an infringem ent of art. 27 by so doing. There may possibly be a case in which if a vessel were to keep her course and speed through a squadron of war vessels which ought p r im a fa c ie to keep out of her way, it would be impossible or im practicable fo r them to manoeuvre so as to keep out o f her way w ithout some or one of them colliding w ith her, or w ith some other vessel or vessels of the squadron; and in such cases the single vessel may b6 required to take action to avoid the danger either by acting according to the note to a rt. 21, or in accordance w ith the provisions of art. 27. B u t there is at present no regulation dealing in express terms w ith the case of a single ship approaching a squadron o f war vessels. The general regulation fo r a ll crossing steam vessels is th a t the vessel which has the other on her starboard hand must keep out of the way o f the other, and the other m ust keep her course and speed, unless the circum- ' stances referred to in the note to art. 21 or in i a rt. 27 require her to act differently. I t is there
fore necessary to consider the particular
circum-MARITIME LAW CASES.
65 Ad m.J S. Hu d s o n & H . Hu m p h r e y v. Ow n e r s o p Ba r g e Sw ip t s u r e ; Th e Sw ip t s u r e. [ Ad m. stances of the case. I have therefore taken theopinion o f the E lder Brethren upon th is point, having regard to the facts of the case which I have set fo rth a t the commencement of th is judgm ent.
Their opinion is th a t the position and movements of the fleet did not constitute such a danger to navigation or collisb in, or such circumstances as to render i t necessary fo r the tug and tow to wait t ill the fleet had passed, or to starboard and go under the stern of the fleet ; in other words, they do not consider th a t the tug and tow acted im properly in th is case in proceeding as they did, and th a t the S anspareil and the other vessels of the fleet could w ithout d ifficu lty or danger, though possibly not w ithout some incon
venience, have avoided them. A ll the vessels except the S an spa reil in fa ct did so, and the S anspareil would have done so w ithout any d ifficu lty if her helm had not been starboarded u n til she was in a position to pass under the stern of the E ast L o th ia n . For these reasons I am of opinion th a t the p la in tiff is entitled to judgm ent.
Solicitors fo r the p la in tiff, T. Coop er and Co.
S olicitor fo r the defendant, The Treasury S o licito r.
M o n d a y, M a rc h 12, 1900.
(Before S ir F. Je u n e, President.) Sa r a h Hu d s o n (widow) a n d He n r y Hu m p h r e y
v. Ow n e r s op t h e Ba r g e Sw ip t s u r e ; Th e Sw i p t s u r e. (a)
Objection to re g is tra r’s re p o rt — A ccount booh entries o f receipts and disbursements — A d m is s i
b ilit y in evidence.
I n ta k in g accounts between a m ortgagor and a deceased mortgagee o f a barge, an account book kept by the la tte r in his own h a n d w ritin g con
ta in in g entries o f p aym ents made to h im by the m ortgagor as w ell as disbursements made by h im on account o f the barge is adm issible on be ha lf o f the mortgagee’s executors in evidence as c o n ta in in g entries ag ainst interest.
Taylor v. W itham (3 Ch. D iv . 605) follow ed.
Th is was a motion by way of objection to the registrar’s report, dated the 24th Feb. 1900.
The question arose as follows :
The p la in tiffs were the executors of John Hudson, deceased, and brought the action to recover the sum of 200Z. w ith interest at the rate of 6 per cent., due under a mortgage granted to the deceased of the barge S w iftsure , of which the defendants were the registered owners.
The defendants alleged in th e ir defence th a t the " hole o f the sums due under the mortgage had been repaid to the deceased, and had been accepted by him in fu ll satisfaction of any claims he had upon the defendants, whether under the mortgage or otherwise.
The defendants also counter-claimed an account of the sums paid by them to the deceased, and a reconveyance of the barge to them by the plaintiffs.
By the th ird paragraph of th e ir reply the p la in tiffs pleaded th a t at the tim e the S w iftsu re was mortgaged to the deceased it was agreed
(o) B e p o rte d b v Bu t l e r As p i n a l l, E s q ., Q.O., a n d Su t t o n Tim m is, E s q .. B a rr is te r a t-L a w ,
Yo l. IX ., N . S.
between him and the mortgagors that, in con
sideration of the deceased paying fo r a ll the repairs, disbursements, and outgoings in connec
tio n w ith the said barge, the deceased should receive 5 per cent, of her gross earnings. In
tio n w ith the said barge, the deceased should receive 5 per cent, of her gross earnings. In