JUDICIAL COMMITTEE OF THE

PRIVY COUNCIL.

Reported by J. P. ASPINALL and F. W. BAIKES, Esqrs., Barristers-at-Law.

Thursday, March 30, 1876.

(Present The Rt. Hons. Sir J. W. COLVILE, Sir R. J. PHILLIMORE, Sir MONTAGUE SMITH, and Sir ROBERT COLLIER.)

THE NORMA.

Collision-Practice-Vice-Admiralty Courts-Preliminary Acts-Examination of witnesses-Rule of the road-Regulations for preventing collisions at Sea, Arts. 15, 16, 18.

The form of preliminary Acts now in use in the High Court of Justice in collision cases should be used in similar cases in the Vice-Admiralty Courts.

In collision causes in the Vice-Admiralty Courts witnesses should, as far as possible, be examined vivâ voce before the court, not upon written interrogatories before an officer of the court prior to the hearing.

A sailing vessel, meeting a steamer, is bound to keep her course, and it is not the rule of the road that she should port her helm on nearing the steamer, such a deviation from the rules being allowed only under circumstances of immediate danger.

THIS was an appeal from the decision of the Judge of the Vice-Admiralty Court of Canada, in a suit brought by the respondents against the appellant for damages sustained by them by reason of a collision between the James Seed, carrying a cargo of copper, of which the respondents were owners, and the Norma, of which the appellant is owner.

The collision in question occurred in the river St. Lawrence, between Bic and Quebec, and between 10 and 11 p.m. of the 11th Aug. 1874. The wind was S.W. or S.W. by W., a moderate breeze; the night was clear, and the tide was ebb. The James Seed, a three masted Schooner, of 156 tons, with a crew of eight hands and a pilot, was going down, and the Norma, a steamship, of 653 tons, with a crew of twenty hands and a pilot, was going up the river. Both vessels had their proper regulation lights. The parts of the two vessels which first came in collision were the port-bow of the James Seed and some part of the starboard-bow of the Norma. The James Seed sunk almost immediately, with the loss of five lives.

On these points hoth parties were agreed. The remaining facts of the case as stated in the preliminary Act and libel filed on behalf of the respondents, were substantially as follows:

The James Seed, making about four knots an hour, was heading N.E. by E., when the bright and red lights of the Norma were observed from two or three miles off, about a point on the starboard-bow. The helm of the James Seed was put to port. and the lights were brought on the portbow. The James Seed then steadied her helm and kept her course. After some time, the green light of the Norma came in sight. Those on board the James Seed then hailed the Norma (which was tnen coming directly upon them), to port her helm, and put their own helm hard-a-port. The Norma, however, starboarded her helm, and without stopping or reversing her engines, came

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into collision with the James Seed, with such violence, as to do the damage already mentioned.

The case of the Norma, as stated in the responsive allegation, filed on behalf of the appelants, was as follows:

5. That at about half-past 10 o'clock at night, of the said 11th Aug., the Norma, then going at the rate of about seven knots per hour, and being a few miles from Bic, the look-out man reported a light about two miles off, a little on the port bow, which was first supposed to be a white light, but which subsequently proved to be a green light of a vessel coming down the river, which said vessel was subsequently ascertained to be the James Seed.

7. That, immediately upon the said light being reported, the said pilot, Joseph Lavoie, perceiving the vessel coming down the river to be a sailing vessel, gave the order to put the helm hard-a-starboard, which order was obeyed, and the green light of the James Seed, was thereby brought about a point on the starboard-bow of the Norma, the Norma, as a steam vessel, giving way to the James Seed.

8. That the green light of the James Seed remained visible to the people of the Norma until a few minutes before the collision, when suddenly the James Seed put her helm hard aport, bringing herself right across the bows of the Norma, and disclosing her red light.

9. That the people on board the Norma shouted to those on board the James Seed to put her helm a-starboard, but the James Seed continued to pay off to starboard, keeping her helm hard-a-port.

10. That thereby a collision was rendered inevitable, the Norma striking the James Seed in her fore-rigging, the James Seed sinking immediately, and carrying with her the starboard anchor and sixty fathoms of chain of the Norma, and making an immense hole in the forward compartment of the Norma, which for some time threatened the safety of the ship.

11. That immediately that there appeared any danger of collision the engines of the Norma were stopped, and then reversed.

The cause came on for hearing before the judge of the Vice-Admiralty Court, assisted by nautical assessors, the evidence of several witnesses, taken before the registrar of the court previously, was read, and the preliminary Acts were opened. The preliminary Acts were those ordinarily in use in the Vice-Admiralty Courts, and did not contain all the questions and answers contained in the preliminary Acts in use in the High Court of Justice of England. The following are wanting "VI. State and force of the tide; ""VIII. The lights, if any carried by her;" "X. The lights, if any, of the other vessel which were first seen; "XI. Whether any lights of the other vessel other than those first seen came into view before the collision." The learned judge submitted certain questions to the nautical assessors, which, with the answers thereto, were as follows:

1st. Whether after the vessels sighted each other they had time to take the necessary precautions to prevent the collision which followed? Answer.

Yes.

2nd. Whether the steamer at any time after seeing the schooner's light should have ported her helm and whether she pursued a proper course in putting it to starboard when she did? Answer. The steamer on seeing the schooner's green light a little on her port bow should have stopped her engines to ascertain the exact position of the schooner and then acted accordingly.

3rd. Whether the schooner was to blame in porting her helm instead of keeping her course? Answer. The schooner in porting her helm followed the rule of the road and was not to blame.

4th. Whether the schooner by porting foiled the manoeuvre of the starboard helm of the steamer or the steamer by starboarding defeated

that of the schooner's port helm? Answer. The steamer seeing that she was nearing the schooner so rapidly should have stopped and reversed full speed instead of starboarding her helm, which had the effect of showing her side lights to the schooner, and justified the latter in porting her helm.

5th. Whether the steamer was to blame for not having stopped her engines earlier than she did? Answer. Yes.

6th. Whether the collision was inevitable or was occasioned by the carelessness, mismanagement, or want of proper skill on the part of both vessels, or of either and which of them? Answer. The collision was occasioned by want of caution and experience on the part of the steamer, which could have avoided a collision by keeping to the northward or by stopping her engines in time, whereas the schooner in porting her helm, to shew her red light, was following the rule of the road, therefore we consider the Norma is alone to blame.

The learned judge then delivered judgment, which, after setting out the facts and the above questions and answers, was as follows:

STUART, J.-It is beyond doubt that after sighting each other both vessels continued their course until within about half a mile of each other, and I may add that it appears to me that if neither had deviated from her course then they would have gone clear, though they might have passed nearer than it was prudent to do, the responsibility of the collision must therefore rest on the vessel which altered her course at the eleventh hour. The pilot and man at the helm of the Norma establish that they both saw the James Seed's green light two miles off, and the mate deposes that when the schooner's green light was seen on the Norma the people of the schooner must have seen the masthead and red lights of the steamer. This is proved to have been so by the pilot of the James Seed. The chief officer of the Norma says, "she (the schooner) would continue to see those lights until we starboarded and brought her on our starboard bow when she would lose our red and see our green light, and our green light must have remained visible from that time till the collision." Charles Dale, the man on the look-out on the Norma says, "Directly after the Norma began to answer her starboard helm the James Seed, which up to that time had shown her green light, then showed her red light." Thus the change in the lights which establishes the alteration of the course of these two vessels relatively to each other is attributed by the witnesses who were themselves executing the change in the course and observing its effect to the action of the Norma's starboard helm, and serves to relieve the persons in charge of the said James Seed of any imputation of having contributed to this altered and very dangerous condition of things. It is made certain by the evidence that the schooner, upon seeing the lights of the Norma, took her course and pursued it without deviation until the steamer, then a short distance off, opened up her coloured lights, and was secn coming end on the schooner, when, in pursuance of the rule, she ported her helm. It is equally certain from the evidence of the crew of the Norma that the steamer saw the schooner's green light at a distance of about two miles, and that she continued her course for a full half hourVOL. III., N.S.

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so says the pilot-when she starboarded her helm and exhibited her coloured lights to the schooner. It does not appear to have been taken into calculation by the persons directing the course of the Norma that before the red light of the steamer was shut out and the green light substituted instead there would be an interval of time when both her coloured lights would appear to the persons on the schooner and show a condition involving the greatest danger of collision end on and making it a duty on the schooner to port her helm in compliance with the rule of the road. These, then, are all the circumstances influencing the relative positions of these two vessels immediately before the collision, which caused the schooner to sink on the spot, and the largest part of her crew to be drowned, to which the law is to be applied. The relative duties towards each other of these two vessels under the circumstances are to be found in the Regulations for Preventing Collisions at Sea.

Art. 15.-"If two ships, one of which is a sailing ship and the other a steamship are proceeding in such directions as to involve risk of collision, the steamship shall keep out of the way of the sailing-ship.'

Art. 16. Every steamship when approaching another ship so as to involve risk of collision and shall slacken her speed, or, if necessary, stop reverse."

It was held in the case of The Rose (2 Wm. Rob. 1) that the expression "giving way in the Trinity House Regulations means not crossing a vessel's bows, but going under her stern. The term used in the 15th article, "Shall keep out of the way," appears to me to correspond in meaning with "giving way." In that case a steam vessel having three lights and proceeding at the rate of ten knots an hour came into a collision with a sailing vessel having no light, and proceeding at the rate of four knots an hour. On discovering each other the sailing vessel ported her helm, and the steamship starboarded. The steamer was condemned in damages and costs. In the case of The James Watt (2 Wm. Rob. 270) a steam vessel discovered a sailing vessel approaching her, which from the direction and state of the wind she was aware must be sailing closehauled, but from the darkness of the night was unable to make out upon what tack. It was held she should (in order to comply with the general rule which obliges a steamer to give way to a sailing vessel) have at once stopped her engines until she had ascertained the exact course of the other vessel, and should not by mere surmise put her helm one way or the other. The defence set up on behalf of the steamer that she had ported her helm was not deemed sufficient. The first of these decisions held the steamer answerable for the collision for putting her helm astarboard instead of aport. The second held the steamer answerable though she had ported her helm, because she had not stopped her engines. Both of these decisions militate against the Norma. With these decisions, and the opinion of the Assessors, in which I concur to the full, I should have no hesitation in coming to a conclusion, but I am confirmed in my views by a decision in the Privy Council in the case of The Velasquez (L. Rep. 1 P. C. Rep. 494). This last case in its important features is identical with the present one. The steamer Velasquez was sighted by the Star of Ceylon at a sufficient distance to

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have avoided a collision, the steamer took no steps until the vessels were very near each other, when she starboarded her helm, and the sailing vessel ported her helm to avoid the collision, which, notwithstanding, took place. It was held that the steamer was alone to blame, as it was the duty of the steamer to keep out of the way of the sailing vessel provided she could do it either by starboarding or porting her helm, and that on the other hand it was the duty of the sailing vessel to keep her course, and that she could only be excused from deviating from it by showing that it was necessary to do so to avoid immediate danger. The Norma kept her course though the danger of this proceeding was apparent to the apprentice pilot whose suggestions as to the propriety of porting her helm before she had got so near was disregarded by the pilot. The Norma then, as the Velasquez, is chargeable with approaching too close, and is answerable for a manoeuvre which threatening a collision end on imposed it as a duty on the schooner to port her helm, and leaves the steamer with the whole burden of the occurrence. I cannot do better than reproduce the words of Lord Westbury in the case of The City of Antwerp (L. Rep. 2 P. C. 25), "It is undoubtedly true in cases of collision between a sailing ship and a steamer that although the sailing ship may be found to have been guilty of misconduct, or not to have observed the sailing regulations, yet the steamer will be held culpable if it appears that it was in her power to have avoided the collision. It cannot be too much insisted on that it is the duty of the steamer where there is risk of collision, whatever may be the conduct of the sailing vessel, to do everything in her power that can be done consistently with her own safety to avoid the collision." To this extent does the law make responsibility weigh upon steamers, and as they are independent of the wind and always under command, it seems humane and just it should be so. Applying these principles of law to the facts proved in these cases as the Norma saw the green light of the James Seed two miles off, when the combined speed at which they were approaching was twelve miles an hour, and a period of time of ten minutes only was afforded to take the precautions necessary to avoid collision, I am of opinion the Norma should then have slackened speed so as to be in a condition to stop or reverse her engines if upon the nearer approach of the vessels the safety of the sailing vessel required a resort to that expedient (The James Watt, ubi sup.). Instead of this the Norma proceeded at full speed down to the moment of collision. I am further of opinion that the attempt to cross the bows of the schooner at the last moment was unseamanlike and culpably hazardous, as the event has demonstrated, and lastly the Norma is answerable when so near the schooner as to involve risk of collision for having starboarded her helm when the rule required her to port. (The Rose, The Velasquez) (ubi sup.) For these acts of omission and commission the owner of the Norma is answerable to the promoters for the catastrophe. I decree against the owner of the Norma, and order the usual reference in both cases to the registrar and merchants to report on the damage.

From this judgment the owners of the Norma appealed, for the following, amongst other reasons:

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1. Because the learned judge of the court below erroneously held that the steamer was bound to get out of the way of the James Seed by porting her helm, whereas she was entitled to do so either by porting, or starboarding, or keeping on as those on board her thought fit.

2. Because the steamer, by starboarding her helm, performed the duty imposed on her of keeping out of the way of the James Seed, and the evidence proved that there would not have been a collision if the James Seed had performed her duty by keeping her course.

3. Because the learned judge of the court below erro. neously held that the James Seed was justified, according to a rule of the road. in porting and hard porting her helm, whereas there is not and was not any such rule.

4. Because the learned judge was wrong in holding that the steamer should have stopped or slackened speed at the time he holds in that behalf.

5. Because the evidence proved that the collision was not occasioned by any negligent or improper navigation on the part of the Norma.

Milward, Q.C. and E. C. Clarkson, for the appellants.

Brett, Q.C. and W. G. F. Phillimore, for the respondents.

The judgment of the court was delivered by

Sir R. J. PHILLIMORE. This is an appeal from a decree of the judge of the Vice-Admiralty Court of Quebec, in a suit for damages, the consequence of a collision between two vessels, the James Seed, a sailing vessel, and the Norma, steamship.

Before their Lordships approach the consideration of the merits of this case they desire to say a few words with respect to the pleadings and the mode of taking evidence in the court below. The "Preliminary Acts," the operation of which has been eminently conducive to the ascertainment of the truth in these cases, are in the same form as when first tried in the High Court of Admiralty. Since that time, sections 6, 8, 10, 11, which form a very important part of the present Preliminary Acts in the English Court of Admiralty, have been introduced, and their Lordships think that it would be expedient to introduce similar regulations into the practice of the Vice-Admiralty Courts: their Lordships must express a hope that in subsequent suits this defect will be remedied. The mode of taking the evidence before the Registrar alone, and the use of written interrogatories, would, in their Lordships' opinion, be advantageously exchanged for the practice of the vivâ voce examination of witnesses at the hearing before the judge who is to decide the case, in causes where it would be possible to obtain their attendance for that purpose without inconvenience or additional expense, a practice which has been for a long time prevalent in the English Court of Admiralty, and attended with very beneficial results.

The judge of the court below pronounced the Norma-the steamship-to be alone to blame for the collision. From this judgment the owners of the Norma have appealed to this court. The collision occurred in the river St. Lawrence. between ten and eleven o'clock of the night of the 11th August 1874, five or six miles from a place called Bic. The James Seed, a threemasted schooner of 156 tons, with a crew of eight hands, and a pilot, was going down, and the Norma, a steamship of 653 tons, with a crew of twenty hands and a pilot, was coming up the river; the two vessels were approaching each other, not exactly, but within about a point, on opposite courses. Both vessels had their proper regulation lights. The weather was fine and clear; it was a starlight night, and there was a moderate breeze

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from the south-west under the influence of which the schooner was approaching Bic-having previously taken in her foresail—at the rate of about four knots through the water. At a distance of about five miles from the Bicquette light, the pilot on board the schooner saw through his glass the masthead light, and the red light of the steamer about two miles off and about a point on his starboard bow. At the same distance the "look-out" on board the steamer reported a bright light ahead on her port bow. The schooner, under the pilot's orders, ported enough to bring the steamer's bright and red lights a little on her port bow; her helm was then steadied, and she kept her course until within half a mile of the steamer, when the three lights of that vessel came in sight; the schooner's helm was then ported and hard-aported, and the steamer was hailed to port; she did not do so, and struck with her stem and starboard bow the schooner's port bow so severe a blow that she sank directly, and five of her crew were unhappily drowned. To return to the steamer, the bright light which had been reported a little on her port bow proved, as the vessels approached each other, to be a green light; the steamer continued her course at a speed of seven knots an hour for some minutes, when, at a distance of about half a mile, her pilot gave the order to starboard and the collision took place in the way described.

The contention of the respondents (the plaintiffs in the court below) was that the collision was caused by the starboarding and the continuance of the speed of the steamer. The contention on the part of the appellants (the defendants in the court below) was that the collision was caused by the porting of the schooner.

The learned judge was assisted by nautical assessors, to whom he submitted various questions; their answer to which was, in substance, that the steamer should have stopped and reversed full speed instead of starboarding, and that the schooner followed what they called the rule of the road in porting her helm, and therefore was not to blame. The learned judge unfortunately adopted this latter premiss, and, as he supposed, supported it by reference to certain articles of the Regulations for preventing Collisions at Sea. He cited Article 15, which is: "If two ships, one of which is a sailing ship and the other a steam ship, are proceeding in such directions as to invoke risk of collision, the steam ship shall keep out of the way of the sailing ship;' and Article 16, which says that, "every steam ship, when approaching another ship so as to involve risk of collision shall slacken her speed, or, if necessary, stop and reverse." The learned judge omitted to notice the 18th Article, which, so far as it concerns the present case, is, "where by the above rules one of two ships is to keep out of the way, the other shall keep her course.' It is an entire mistake as to the existing law to suppose that it is the duty of a sailing vessel when meeting a steamer to port her helm; it is her duty to keep her course. And if the conclusion at which the learned judge arrived could only be supported by adopting the grounds upon which he appears mainly to have founded it, it would be the duty of their Lordships to recommend Her Majesty to reverse the sentence; but their Lordships are of opinion in this case that though the reasoning is partially incorrect, the conclusion is,

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on the whole, right. Their Lordships, after conference with their nautical assessors, are of opinion, on the one hand, that the first porting of her helm by the schooner was, at the least, having regard to the distance and the degree, an innocent manoeuvre; and, on the other hand, that it is not proved that the schooner's red light was seen on board the steamer. But their Lordships are clearly of opinion that the steamer is to blame for having approached too close to the schooner before she altered her helm; that she did wrong in continuing up to so late a period the position of danger and embarrassment which exists when the green light on one vessel is opposed to the red light on another. The steamer came so close that she had not time to go off more than a point and a half under her starboard helm. The nautical assessors think that if she had starboarded a quarter of a mile off she would have cleared the schooner; and with regard to the second porting of the schooner almost in the moment of collision, they think that in the circumstances it was the best manoeuvre she could have adopted.

Their Lordships will therefore humbly advise Her Majesty to affirm the decision of the court below, and to dismiss the appeal with costs. Appeal dismissed. Solicitor for the appellant, Thos. Cooper. Solicitors for the respondent, Waltons, Bubb, and Walton.

HOUSE OF LORDS.

Reported by C. E. MALDEN, Esq., Barrister-at-Law.

June 15 and 20, 1876.

(Before the LORD CHANCELLOR (Cairns), Lords CHELMSFORD, PENZANCE, and O'HAGAN.) PEARSON V. THE COMMERCIAL ASSURANCE COMPANY.

ERROR FROM THE COURT OF EXCHEQUER CHAMBER IN ENGLAND.

Ship-Fire policy-Construction-Localization of policy.

A ship belonging to the appellant was insured against fire with the respondents by a time policy. In the policy the ship was described as "lying in the Victoria Docks, London, with liberty to go into dry dock." The ship went into dry dock, and after leaving the dry dock was moored for some time in the river in order that certain repairs might be done which were usually done in the river, but might have been done, though at a greater cost, in the Victoria Docks. While so moored the ship was completely destroyed by fire. Hell (affirming the judgment of the court below), that the loss was not covered by the policy.

THE plaintiff had effected a policy of insurance against fire with the defendants on the steamship Indian Empire for three months from May 14th, 1862. The ship was described in the policy as "lying in the Victoria Docks, London, with liberty to go into dry dock, and light the boiler fires once or twice during the currency of the policy." The Indian Empire was a paddle steamer of very large size, of 2000 tons, 249ft. long, and 60ft. beam, and it was found that the only dry dock in the Thames capable of receiving a ship of that size was Lungley's dry dock at Deptford, two miles higher up the river than the Victoria Docks, and to enter this dock it was necessary to