THE CAMPANIA, App.

it is practically impossible to take effective steps to avoid doing damage to another vessel after she is seen only 150 feet off ahead, and, as a general rule, speed such that another vessel cannot be avoided after being seen is excessive--see The City of Brooklyn [1876].6

"The impact of the steamer, especially a large one, proceeding at a speed of anything approaching nine knots an hour upon another vessel is terrible. In the present case the Campania went right through the barque, cutting her in two, although the barque was fully laden and part of her cargo consisted of pig iron and bar-iron and felt stowed in the part where she was struck.

"The advantages to be gained by a very slow speed, as compared with greater speed, are clear. One of the most important is that those on board a vessel proceeding at very slow speed have more opportunities, while traversing a given space, of hearing the sound signals of an approaching vessel than if their vessel were going faster. For instance, if a steamer proceeding at ten knots an hour had half a knot to traverse before reaching the spot where her course and that of an approaching sailing vessel would intersect, those on board of her would only have the chance of hearing about three sound-signals from the sailing vessel, for the steamer would cover the half-knot in three minutes, and the soundsignals on the sailing vessel ought to be given at intervals of not more than one minute. If, however, the steamer were only proceeding at five knots an hour, those on board her would have the chance of hearing six sound-signals while covering the half-knot distance. Moreover, it is obvious that at the slower speed more time is given to act for an approaching vessel when her signals are heard or she is seen, and that the way of a steamer is much more quickly taken off by reversing when she is going at slow than at fast speed; and, even if a collision is not averted, its consequences may be much less disastrous if the speed is very slow. greater proportion of ordinary cargo boats, probably most of them, cannot attain a greater speed than from nine to (6) 1 P. D. 276.

The

ten knots when going at full speed. Such a steamer would be condemned for excessive speed if she ran at full speed into a vessel in a dense fog. These vessels, by working their engines at slow, can usually reduce their speed to about three knots an hour without any difficulty.

"The contention for the defendants comes to this-that as their vessel cannot, as they allege, go with safety when navigating at less speed than about nine knots an hour, she is justified in keeping on at that speed in a dense fog. Possibly a similar contention could be made on behalf of a considerable number of the large and fast passenger boats of the day.

"Article 16 is imperative, and I believe it would be most dangerous, having regard to the traffic to be met with everywhere, especially near the coasts in crowded waters, if this contention were to be upheld. It is based on the supposed necessity for the Campania to keep the speed at which she was going for the safety of her own navigation. But I am advised that this basis is unsound. Captain Watson himself stated that a fog may be so dense that it is not possible to see across the ship, and that in that case she would probably have to stop her engines. A special signal is provided by article 15в for such a case. The vessel's position afterwards would have to be ascertained by estimation and soundings, if possible. If the fog be not so dense as to require the vessel to stop, she can go at a moderate speed within the rules by going slowly ahead and stopping her engines from time to time. The objection to this by the defendants is that she cannot then steer properly and insure a good course and certainty as to the distance run, but the Elder Brethren advise me that, unless there is something exceptional in the circumstances, all that this might involve would be delay and the taking of proper precautions to haul out from the coast, if approaching it, and for verifying her position, and that there was nothing in the circumstances or conditions of the present case to prevent the Campania from proceeding in this manner and yet keeping sufficient steerage way.

"The Court fully appreciates the anxiety of the defendants to insure the safety of

"I am of opinion that the Campania was guilty of a breach of article 16, and must be held solely to blame for the collision.

"I may add that I have made a search for decisions of foreign Courts upon the subject under consideration, but with the time and means at my disposal I have been unable to find the reports of such decisions, except some of those in the United States. I have referred to a number of cases decided in that country, and they appear to me to be in practical accordance with those of our Courts-see especially the decisions of the Hon. Judge Brown, of New York, a Judge of great experience, reported in the Federal Reporter; see also the case of The Pennsylvania [1873],7 in the Supreme Court of the United States, especially that part of the judgment of Mr. Justice Strong, delivering the opinion of the Court, which is set out at page 134. He there quotes a passage from a decision in the case of The Europa [1851],8 before the Privy Council, which is set out by Mr. Marsden at page 436 of his work, Collisions at Sea (4th ed.), the reference to which is there given as 14 Jur. 627. This, however, is the report in the Court below; and although I have endeavoured to find the report in the Privy Council, I have failed to do so. Some of these cases are collected in Mr. Marsden's book on Collisions at Sea, to which may be added the case of The Martello [1888].9"

The defendants appealed.

Pickford, K.C., and L. Batten (with them Butler Aspinall, K.C.), for the (7) 19 Wall. 125.

(8) Decided Dec. 6, 1851; noted Pritchard's Adm. Dig. vol. i. p. 223, No. 338 (3rd ed.). (9) 34 Fed. R. 71.

appellants. The speed at which the Campania was going was "moderate" speed, having regard to the existing circumstances and conditions, within the terms of article 16. It is clear from the evidence that what was done here was not a matter of careless navigation but was done, rightly or wrongly, as the best thing in the experience of the captain to be done under the circumstances. The question what is "moderate" speed is a nautical question which is to be answered by considering what is the best rate of speed in a fog to insure the safety of a ship of the size of the Campania and other ships. The real test of safety is that one vessel should approach another on a course which would be most efficient for altering her position in the event of danger of collision. A vessel like the Campania is not under control if going at a less speed than nine knots an hour; and her engines cannot be stopped from time to time, because it they are not kept going continuously a correct record cannot be obtained, and the number of revolutions under those conditions cannot be relied on.

Joseph Walton, K.C., Laing, K.C., and A. D. Bateson, for the respondents, were not called on.

LORD ALVERSTONE, C.J.-In this case I might content myself with simply saying that I entirely agree with the very careful judgment of Mr. Justice Gorell Barnes and with the reasons there given, and I think that would be sufficient for the judgment of this Court; but having regard to the importance of the case, I will state my own views, having regard to the objections which have been raised to that judgment. Mr. Justice Gorell Barnes, acting on the advice given by the Elder Brethren, found that the Campania had committed a breach of article 16, and on that ground was to blame for the collision. The nautical assessors who assist us tell us they entirely concur in that view. The collision occurred

about twenty-six miles north-east of the Tuskar, in a position where vessels would be liable to be met by vessels navigating in the opposite direction. The Campania, which has an ordinary speed of twenty-. one knots an hour, was steaming at a

THE CAMPANIA, App.

uniform speed of between nine and ten knots an hour. The weather was such, so far as seeing was concerned, that a vessel could only be seen at a distance of a ship's length-that is, about 600 feet. Here the barque Embleton was seen at a distance of 150 feet. The Campania is a twin-screw steamship, and it is said that she is best under command when going at a speed of not less than nine knots, but that she does not steer well, and very likely, I think, steers badly, when going at a less speed than nine knots.

One

fact stated in the judgment of Mr. Justice Gorell Barnes which I think it is very important to consider is, that from nine to ten knots an hour is the full speed of a large proportion of cargo vessels going round the world; and if we are to have a different rule with regard to vessels of a higher rate of speed, that rule should be laid down by the Legislature, and the Court ought not to impose a less responsibility upon a ship going at that speed unless the circumstances are such as to shew there has been no breach of such rule. It was said on behalf of the Campania that she was justified in going a speed of over nine knots because she might otherwise lose her reckoning or overrun her log; it is common knowledge that vessels do calculate the distance they have run by counting the number of revolutions. I will call attention to what Mr. Justice Gorell Barnes said on this point in his judgment: "But the Elder Brethren advise me that unless there is something exceptional in the circumstances, all that this might involve would be delay and the taking of proper precautions to haul out from the coast, if approaching it, and for verifying her position." So far as losing her position was concerned, it was pointed out by Mr. Justice Gorell Barnes that, although it might involve delay or difficulty or inconvenience, yet it could not be a sufficient reason for justifying a higher rate of speed or a speed which the Court might think to be a breach of the rule.

An

other reason put forward on behalf of the Campania was that she manœuvres better at a speed of nine knots; that she was handier at that speed; and that it was safer both for herself and for other

vessels. As to that, Mr. Justice Gorell Barnes adopted the view which has been laid down and adopted over and over again in the Courts, that when a vessel is in such a position she ought from time to time to stop and listen-as Lord Esher, M.R., and Mr. Justice Butt used to say -and in dealing with this part of the case his Lordship said: "The objection to this by the defendants is that she cannot steer properly and insure a good course and certainty as to the distance run; but the Elder Brethren advise me that unless there is something exceptional in the circumstances, all that this might involve would be delay and the taking of proper precautions to haul out from the coast, if approaching it, and for verifying her position, and that there was nothing in the circumstances or conditions of the present case to prevent the Campania from proceeding in this manner and yet keeping sufficient steerage way." If, therefore, we are to accede to the arguments on behalf of the appellants we must on some principle of law go against the advice given by the Elder Brethren and accepted by the nautical assessors in this Court and by the judgments of many learned Judges. To my mind, in these collision cases facility in handling a vessel in circumstances such as existed in this case is not the only matter for consideration. The question, and one of considerable importance, is, How soon can way be taken off a vessel like the Campania? I do not rely so much upon the particular circumstances of this case, but upon this

that where there is such an enormous momentum arising from the speed of nine or ten knots of such a large vessel as the Campania it must be taken off by reversing the engines at intervals, and I think that facility in taking way off quickly so as to reduce the vessel to a position of comparative safety is a matter of much importance for avoiding not only collision, but also the consequences of collision. That is one of the matters which the framers of the rule had in view and also the Judges who have had to construe the rule. Again, I think the Elder Brethren in the Court below were of opinion that a vessel going nine or ten knots an hour without stopping at intervals is doing

THE CAMPANIA, App. something which the Judges have pointed out ought not to be done, in that no opportunity is given for hearing sounds which it is well known cannot in certain conditions of the weather be so easily heard. It is of very great importance that persons who have this responsibility both to their own ship and also to other ships should not contravene this rule except in cases of paramount necessity; and I do not say that there may not be cases where it might be necessary to go at even a greater rate of speed than would in ordinary circumstances be safe, as, for instance, even in a fog, either from narrow channels or from cross-currents, where it would be safer to go at a higher speed because of the existence of danger. The present case, however, is not such a case, but one in St. George's Channel, where there is generally plenty of room, but some danger from vessels likely to be coming down channel. I am perhaps

saying more than I need in this case, because, as I have already said, I agree with the judgment of Mr. Justice Gorell Barnes, but, in my opinion, the speed of the Campania was not "moderate" within the terms of article 16, having regard to the circumstances of the case.

A.-L. SMITH, M.R., and ROMER, L.J., concurred. Appeal dismissed.

Solicitors-Hill, Dickinson, Dickinson & Hill, Liverpool, for appellants; Batesons, Warr & Wimshurst, Liverpool, for respondents.

[Reported by W. E. Gordon, Esq.,

Barrister-at-Law.

ADMINISTRATION.

Renunciation by Next-of-Kin-Special Circumstances.]-The whole estate of a deceased intestate consisted of a share in leasehold tenements to which she was entitled under the will of her grandfather, who died in 1834. She herself died in 1873, leaving two daughters the only persons entitled in distribution to her estate. One of these daughters died in 1892 without having taken administration to her mother, leaving her husband her surviving. No grant of administration having been taken out to the estate of the mother by the other daughter, in 1901 it became important that a grant should be made in order to complete the title to the houses in question. The only persons entitled to the grant-namely, the surviving daughter and the husband of the deceased daughter-renounced in favour of a brother of the deceased who was trustee under the will of the grandfather and administrator de bonis non to his estate, and also entitled to one third share of the houses in question, and had managed them for some years :-Held, that there were not sufficient "special circumstances to warrant making a grant to the brother under section 73 of the Court of Probate Act, 1857. Brotherton, In the goods of,

33.

Administration Bond Dispensing with Sureties.]-Where the executors of a deceased testatrix desired to apply for administration to the estates of her two sons who had predeceased her and died intestate, THE COURT, being satisfied-first, that the whole of the property of the two intestates would vest absolutely in the applicants, as executors of their mother; and secondly, that all liabilities of the said two deceased intestates had been

fully discharged,-gave leave to the applicants to enter into the administration bond required by section 1 of the Court of Probate Act, 1857, without sureties. Paton, In the goods of, 49.

ALIMONY.-See DIVORCE.

APPEAL.-See DIVORCE.

BOND.-See ADMINISTRATION.

CAVEAT.-See PROBATE.

COLLISION.-See SHIPPING.

DEATH.

Presumption of.]—See EVIDENCE.

DIGNITY.

Peer Divorced on His Wife's Petition-Remarriage of Petitioner with a CommonerPetitioner's Use of Title.]-An injunction will not be granted to restrain the former wife of a peer, whose marriage with him has been dissolved and who has subsequently married a commoner, from using her former title. The peer by such user suffers no legal wrong or damage. Conley (Earl) v. Conley (Countess), (H.L.) 83.

Jurisdiction on Peerage Questions.]-Questions connected with a peerage cannot be tried by a Court of law, but are only cognisable by a Committee for Privileges of the House of Lords. Ib.