Ab m.] The P. Ca lan d. T Ad m.
way of other vessels. I f so, she was not un er command ” w ith in the meaning of a rt. 5 ot tne Begulations.
Sir Walter Phillimore in reply.
Jeune, J — In this case the action is brought by the Glamorgan against the P Caland; there is a counter-claim by the defendants, and hence an inquiry into the conduct of both vessels. J ne Glamorgan, at the time in question, was going down Channel on a voyage from Antwerp to Car
diff. The P. 0 aland was coming up Channel, ana after she had passed the Varne Light, the vesse, being on almost opposite courses, the coiiisioii occurred. The main question as to the conduct, the P. Caland is, whether she was rig ht in taking down her masthead lig h t and hoisting three iei lights in its place. I t is a question about wmc I have very little doubt. According to evidence from the P. Caland she passe Varne L ig h t about 8 p.m., passing it about a mi e to a mile and a half off. She was then going speed, which was eleven knots, though her engineer Puts it a little less, and she was steering a cours A.-E. by E. magnetic. A t 8.15 the engineer found that there was something wrong with the mg pressure cylinder. I t turned out that the n which stops the backward and forward motion a slide had got loose or had given way, so tna slide of the high-pressure cylinder was prolong in one direction, which in time had the effect o stopping the action of the slide altogether an preventing anv steam passing to the oy m ■ . The engineer informed the master that there something wrong w ith the engines, ih e anciim was then ordered to be got ready, and the head lig h t was taken down and three re 8 were put up. The story of the P. Caland s witnesses is, that the side lights were kept o the same time, a question upon winch a , , of difference exists, and upon which a goo turns. Those on board the P. Caland sa
Glamorgan approaching about 8.30 p.m.; in the time when the engines were found to have gone wrong, up to the time of the coll . sion, which they put about 9 p.m., the engines continued to work. A t 8.45 p.m., when the engineer captain for the second time, the engines v working, although w o rk in g inadequately becam the high-pressure cylinder was being only by hand, which is not an efficient w a j ot w o rkin g it. Prom th a t tim e both cyhn were worked by hand, which «av0 A * like
* h a t b e tte r speed to the vessel, som ething lik e tw enty revolutions being got out o
— fifty -s ix being the fu ll ’ C e" o r speed which the engineer puts a } f er the four knots. I may also add that, e d collision, and afte r the vessel bad ‘ _ear to damage she did by it, the¡engines s till appear to have been able to work, because A gxe(j |n to clear her of the wreck, she having
the other vessel. In addition to that they went on being worked for something li for the t ill the vessel was brought to a standstill tor t purpose of repairing her engine*. J o r the poses of the decision I am gom0 A A,e gpeed not appear to me very material whether the speed the vessel was able to attain w ^ evidence knots or something more. A goo argument has been given, and a good deal of argum^em addressed to me upon it, as to the P
the P. Caland, and I am by no means sure that these are not considerations which, i f I thought i t necessary to go elaborately into them, m ight bring me to the conclusion that the P. Caland in putting her speed at three or four knots was not putting i t somewhat under the mark at any rate^ during part of the time from when the Glamorgan was first seen up to the collision. I f it, were necessary to consider that matter I should have to deal w ith the question of the force of the blow and the indications which i t presents.
Were I to do so, I am inclined to th in k that there are considerations upon that head which would lead me to th ink that the P. Caland’s speed was somewhat greater than her witnesses admit.
Again, as to the place of collision, I cannot help thinking that the P. Caland puts the collision at a place considerably short of that at which i t actually occurred, and thereby shows that her estimate of her own speed at three or four knots is an inadequate one. I t is further to be remarked that, although i t may be, when the engine was in its most disabled condition and working only w ith the auxiliary valve by hand on the high-pressure cylinder, a speed of only three or four knots was obtained; s till some improvement was made upon that by working the low-pressure cylinder by means of the auxiliary valve. However, for this purpose I think i t is sufficient to say that the speed maintained by the engines, even in their disabled condition, was three or four 'knots or something more.
I f that is so, was the P. Caland ]ustified in hoist
ing the signal of three red lights, supposing her to be as I think she was, in perfect command of her rudder, because there is no doubt that she was able to'steer perfectly well, and they say that she kept her course. I t is not suggested that there was anything wrong w ith her steering apparatus, or that she had not sufficient way on her to enable her to steer. Therefore, there being, so far as steering power was concerned, no want of com
mand, though there may have been some deterio
ration in her steaming power, can she be said to be “ not under command ” w ithin the meaning of article 5 of the Begulations for Preventing Collisions at Sea ? One would th in k that the words “ not under command” are words to which it is not very difficult to give a meaning.
They appear to mean this, that the course cannot be properly controlled or directed. When we lookinto the article we find that there are two subsequent expressions which appear to throw ligh t upon the matter. Sub-sect, (c) shows that i t is not because a vessel is making way that she is necessarily under command, because i t is assumed that a vessel may be not under command and justified in hoisting three red lights, and s till may be making way and so have the obligation of carrying side lights. On the other hand, when you look at sub-sect, (d) you find that the expression
“ cannot therefore get out of the way ’ is used as explanatory, and, as I think, identical w ith that of not being “ under command.” Therefore a vessel not under command is a vessel which cannot get out of the way. I t appears to me to follow that, i f a vessel is in the position of being able to get out of the way, t.e., to direct her course so as to avoid perils and obstacles she may have to encounter, she cannot be said to be not under command. Dr. Kaikes has argued, and ju stly argued, that because a vessel is capable of
main-Apm.] The Hero. [ Adm. taining a high rate of speed i t does not follow
that she is under command. Certainly not. A vessel, like a runaway horse, may be not under command, although capable of exercising a con
siderable rate of speed ; but i t is equally true to say that, although the speed of a vessel may be deteriorated and not up to her fu ll speed, i t does not follow that she is necessarily not under com
mand. A ll that in this case appears to me to have been the fact is, that the vessel was not able to exercise her fu ll rate of speed, and probably not able to reverse as quickly as before ; but s till she had not so completely lost her power of motion or of reversing, and not at all her steer
ing power, as to ju s tify one in saying that she was not under command. M y judgment therefore is, w ith regard to a vessel circumstanced as this vessel was, that she was s till under command, and that she was therefore wrong in hoisting the three red lights. In this view the T rin ity Masters concur. A question has been raised as to the hoisting of the three black balls, after a stop of four hours, when the vessel was going up the Dover Roads ; but it appears to me that it does not carry the case any further, because that was after the vessel was disabled by the collision.
Therefore I do not th ink i t necessary to enter into the question whether she was justified then, though I do not say that she was, in using the signal corresponding to the night signal of three red lights. B ut I do hold that the exhibition of the three red lights was not rig ht, and that not only was i t extremely likely to mislead vessels approaching her, but that i t did in fact mislead the Glamorgan, and, in my judgment contributed to the disaster which took place. [The learned Judge then dealt w ith the manoeuvres of the Glamorgan and the exhibition of the P. Caland’s red side light, and thus continued :] The one fact which appears to be absolutely clear and certain is this, that the Glamorgan starboarded consider
ably. I f that is so, can i t possibly be consistent w ith the story that she saw the red side lig h t of the P. Caland P 1 do not th in k i t can be. I think, i f she had seen the red side lig h t of the P. G aland, she never would adopted the course of star
boarding, which they say she did. Therefore I th ink she did not see the red lig h t of the P. Caland. Of course i t may be said that she ought to have seen it, and then that brings me to the difficult conflict of evidence there is about the lig h t of the P. Caland. I say conflict of evidence because, although i t is per
fectly true that the evidence from the Glamorgan is that she did not see the red side ligh t, and the evidence from the P. Caland is positive that the lig h t was there to be seen; still, inasmuch as the Glamorgan saw the three red lights quite well, and is positive she never saw the side lig h t at all, I cannot help thinking that i t is one of those cases where the assertions must be taken to be abso
lutely contradictory, and where, if the red lig h t had been there to be seen, the Glamorgan must have seen i t ; and i f they did not see i t they are saying that which is inaccurate. Equally, i f the P. Caland’s people say the red lie'ht was there and i t was not, they must be saying that which is not accurate to their knowledge.
I must do the best I can in these circumstances, and the conclusion to which I come is, that the lig h t was not seen because for some reason or other i t was not there to be seen. I purposely say for
“ some reason or other ” because I am not bound to say, and find difficulty in saying, the exact cause which may for the time have prevented that lig h t from being seen. I cannot help thinking that there is a very strong probability that that lig h t was turned in for a time. I know they say that i t was not so ; but there is a strong proba
b ility that it was. The vessel beyond all question had hoisted three red lights, and meant very shortly to come to anchor. I cannot help th in k ing that i t is extremely probable that, when she hoisted her three red lights and meant to come to anchor, she did that which she ought to have done when she did come to anchor, viz., bring her red lig h t i n ; or, at any rate, may have prepared to bring i t in by drawing the bolts back, so that when the ship rolled the red lig h t got turned in, wholly or partially, and was so obscured. A t any rate that is a possible explanation of the temporary obscuration of the ligh t, so probable in view of what was going to happen, th at I am forced to the conclusion that the red lig h t of the P. Caland was turned in t i l l the moment of collision, when i t was seen by those on the Glamorgan. The conclusion therefore to which I have come is, that the red side lig h t was not properly exhibited by the P. Caland, and that the Glamorgan was misled by seeing three vertical lights. I th in k i t probable that she considered them stationary lights, that she acted accord
ingly, intending to pass close by the P. Caland for the purpose, perhaps, of rendering salvage if required; and i t was because she was not stationary that the collision occurred. The con
clusion which I come to, although the evidence is very contradictory, is that the P. Caland is alone to blame.
Solicitors for the plaintiffs, Thos. Cooper and Co.
Solicitors for the defendants, Pritchard and Sons.
Monday, June 29, 1891.
(Before the Pr esid entand Jeu n e, J.) The Hero, (a)
Jurisdiction— County Court—Adm iralty action—
County Courts Adm iralty Jurisdiction Act 1868 (31 & 32 Viet. c. 71)— County Courts Adm iralty Jurisdiction Amendment Act 1869 (32 Sf 33 Viet, c. 51)—County Courts Act 1888 (51 Sf 52 Viet, c. 43).
Sect. 74 of the County Courts Act 1888, which con
tains provisions as to the district w ithin which actions are to be commenced, is not inconsistent with sect. 21 of the County Courts Adm iralty Jurisdiction Act 1868, and applies to County Court Adm iralty actions; and hence a claim fo r demurrage in personam, under sect. 2 of the County Courts Adm iralty Jurisdiction Amend
ment Act 1869, is rightly instituted in the court w ithin the district of which the defendants carry on business.
Th is was an appeal b y the p la in tiffs in an actio n in personam, to recover damages fo r d e te n tio n of th e p la in tiffs ’ steam ship Hero.
The action was instituted under sect. 2, sub
sect. 1, of the County Courts A dm iralty
Jurisdic-(a) Reported by J. P. As p i n a l l and Bu t l e r As p i n a l l, Esqrs, Barristera-at-Law.
MARITIME LAW CASES.
Adm.] The Hero.
[ Ad m.
tion Amendment A c t 1869, on the Adm iralty side of the Glamorganshire County Court holden at Cardiff. The Hero was not w ithin this district when the action was instituted.
The defendants, Messrs. Watson, timber m®r chants, carryinsr on business at Cardin, were charterers of the s.s. Hero, and also consignees o a cargo of timber carried from Uleaborg to ar diff, and there delivered to the defendants.
The plaintiffs, who were the Bristol Steam Navigation Company Limited, carrying ?a ness at Bristol, claimed 66i. 6s. 8d., being da g in the nature of demurrage for delay at the p
° f A U he hearing of the action, the learned County Court judge dismissed i t for want of juris >
on the ground that the plaintiffs did not reside w ithin his district, nor was the Sero w ithm it, at the time of the commencement of the pio-CeThegdefendants, who had counter-daimed for damage to cargo, withdrew their counter-
the trial. ,
County Courts A dm iralty Jurisdiction Act 1868 (31 & 32 Viet. c. 71): . ...
Sect. 21. Proceedings in an Adm iralty pause shall be commenced (1) in the County Cocurt, or jurisdiction w ithin the district of which the >
property to which the cause relates is at the not ment of the proceedings ; (2) i f the foregoing r altv applicable, then in the County Court haring ^ t jje jurisdiction in the district of which the ow
vessel or property to which the cause agent in England, resides ; or, if such owne
does not reside within any such district, district County Court having Adm iralty jurisdiction
whereof is nearest to the place where such owner or
agent resides. _
The County Courts Adm iralty Jurisdiction Amendment A ct 1869 (32 & 33 Viet. c. 5 ) •
Seot. 1. This A ct may be cited as the Comi y jp o u ^ Adm iralty Jurisdiction Amendment Act 1 i County be read and interpreted as one A ct w ith the oou Courts A dm iralty Jurisdiction Act 180». . be ap.
Seot. 2. Any County Court appointed or to pointed to have Adm iralty jurisdiction » . tberet 0 diction and all powers and authorities r as to any to try and determine the followingr cause*«* £ claim arising out of any agreement ma carriage the use or hire of any ship, or in relation to t h e ^ n w . goods in any ship, and also as to . y pr0vided the m respect of goods carried in any ship, provm amount claimed does not exceed ¿Wi.
C o u n ty C o urts A c t 1888 (81 * « otherwi'se Sect. 74. Except where by this A commenoed in Provided, every action or matter may ¿ef endant, or the court w ithin the district of which the deten ^ ^ one of the defendants, shall dwell or c^ onyorm atter, or ness a t the time of commenomg the registrar }t may be commenced by leave of the .jn a g ^ defendant, in the court w ithin the d is tric t of . , on j,usi neBS or one of the defendants, dwelt or t befor0 the at any time w ithin six calendar mon i eaVe in the time of commencement, or with tn f action or court in the d is tric t of which the cause u
claim wholly or in part arose. .. i.ag t,een heard . Sect. 125. Where an Adm iralty ^ ¿ S ^ e s s o r s , In the court w ith the assistance , ,, be summoned Elder Brethren of the T rin ity Hou High Court to assist on the hearing of an appeal by the^n ^ if either party shall require the S ’ f t he Elder Court shall be of opinion that the assistance oi
Brethren is necessary or desirab e. . o f the Abel Thomas, fo r th e p la in tiffi PP Qo u rt Appeal.— The j . r i g . o i th e « ¿ '" ¿ S . , , bad ju r is d ic tio n to t r y and de test 0f ju r is - By sect. 21, s u b -s e c ts d and 2.th e , test o j d ic tio n is th e place where th e vess p 1
to which the cause relates is, or where the owner thereof resides at the commencement of the pro
ceedings. In the present case the cargo which is the property to which the cause relates was landed at* Cardiff, and its owners carry on business there. Apart from the County Courts Adm iralty Jurisdiction Acts, the judge had jurisdiction under sect. 74 of the County Courts Act 1888. By that section the d is tric t is deter
mined by the residence or place of business of the defendant. The language of the section is general, and there is no reason why i t should not apply to Adm iralty actions. The Legislature had pre
sent to their minds the special provisions of the County Courts A d m iralty Jurisdiction Acts of 1868 and 1869 when passing the County Courts Act 1888. This is shown by the provision in sect. 125 as to the attendance of nautical assessors on appeals to the A d m iralty Court from County Courts.
L. E. Pyhe, for the respondents, contra.—The district in which County Court A dm iralty actions are to be instituted is solely determined by the County Courts A dm iralty Jurisdiction A ct 1868.
I f so, the action has been instituted in the wrong
I f so, the action has been instituted in the wrong