the green light was not seen across the bow of the Peru by those on board the Fanny M. Carvill; and, according to the evidence, if the length of the screens in the Peru had extended further outside of the bows a sea might have washed them away. Upon the whole, I think that I am not compelled to say that the deficiency in the length of the screens was an infringement of the regulation according to my construction of the statute; and, that, therefore, the Peru is legally in fault for a collision, which her non-observance of the regulations certainly did in no way occasion. I pronounce the Fanny M. Carvill alone in fault.

Solicitors for owners of the Eugenie: Bateson & Co. Solicitors for owner of the Magnet: Jenkins, Rae & Jenkins.

Solicitors for owners of the Maggie Trimble: Wood & Tinkler.

Solicitor for owners of the Duke of Sutherland: Roberts. Solicitor for owners of the Peru and of her cargo: Cooper. Solicitors for owners of the F. M. Carvill: Stokes, Saunders & Stokes.

4311

[Law Reports, 4 Admiralty and Ecclesiastical Courts, 431.]

Regulations for preventing Collisions at Sea-Art. 17-No Obligation to exhibit any other than the Regulation Lights—Rejection of Evidence on mixed Questions of Law and nautical Skill.

In a case where a sailing vessel under way, with her regulation lights properly exhibited, was overtaken and run down by a steamer at night, it was held that no blame attached to the sailing vessel for not exhibiting a light over her stern.

THIS was a cause of damage instituted on behalf of the owners, master, and crew of the schooner Merlin, and on behalf of the owners of the cargo lately laden on board thereof, against the steamship Earl Spencer and her owners. The petition alleged in substance as follows:

About 5 a.m. on the 17th day of October, 1874, the Merlin, whilst in prosecution of a voyage from Carmathen to Liverpool, with a cargo of tin plate, was in Holyhead Bay, inside of the breakwater.

The wind at such time was about south-south-west, a moderate gale; the weather was rainy, and, the tide was about one hour and a half ebb, and the Merlin had her proper regulation lights duly exhibited and burning brightly.

She was on the starboard tack, heading about south-east-bysouth; her speed was about one knot and a half to two knots per hour, and she was under double-reefed mainsail, reefed topsail, standing jib and forestaysail, and her crew were engaged in setting her double-reefed foresail.

At such time the Earl Spencer, with her three lights open, was seen at the distance of about a cable's length astern of the Merlin, and coming towards her under steam. The Earl Spencer, although loudly hailed from the Merlin, ran against and with her stem struck the Merlin a violent blow on her port quarter, doing her a great deal of damage.

Those on board the Earl Spencer neglected to keep a proper look out.

The Earl Spencer improperly neglected to keep out of the way of the Merlin.

The Earl Spencer was going too fast, considering the state of the weather, and did not duly observe and comply with the provisions of article 16 of the regulations for preventing collisions at sea.

The said collision, and the consequent loss of the Merlin, and her cargo, and everything on board her, were occasioned by the negligent and improper navigation of the Earl Spencer.

The said collision was not occasioned by any negligence on the part of the master or crew of the Merlin.

*The answer alleged in substance as follows: [432 The Earl Spencer left Greenore, bound for Holyhead, on the evening of the 16th day of October, 1874.

The Earl Spencer proceeded on her said voyage in safety until about 4.25 a.m. on the 17th day of October, 1874, when the tide being ebb, the weather dark and rainy, and a gale blowing from the south-south-west, the Earl Spencer was rounding the breakwater of and entering Holyhead outer harbor, heading about south-half-east, with her regulation lights burning brightly, and a good look-out being kept on board of her. At such time and after rounding the breakwater, those on board the Earl Spencer suddenly sighted a vessel which turned out to be the Merlin, with no lights visible, bearing about half a point on the starboard bow of the Earl Spencer, and close ahead of the latter vessel, and inside the breakwater. The master of the Earl Spencer, thinking that the Merlin was a vessel at anchor, starboarded the helm of the Earl Spencer, to go to the eastward and outside of her and of the other shipping, there being several vessels at anchor to the westward of the Merlin, but dis

covering immediately afterwards that the Merlin was under way, the master of the Earl Spencer ordered the engines of that vessel to be stopped and reversed full speed, which order was immediately obeyed; but the time which had elapsed from the sighting of the Merlin was so short, and as the Merlin was steering a course which crossed the course of the Earl Spencer, that latter vessel was unable to avoid the Merlin, but her bow came in contact with the stern and port quarter of the Merlin.

Save as herein appears the defendants deny the several allegations of the plaintiffs' petition.

Those on board the Merlin improperly omitted under the circumstances of the case to hail the Earl Spencer, or to show a light, or to take any proper measures in due time to warn those on board the Earl Spencer of the proximity and position of the Merlin, although from the relative position of the two ships the regulation lights of the Merlin were not visible to those on board the Earl Spencer.

Those on board the Merlin neglected to observe and comply with the provisions of articles 19 and 20 of the regulations for preventing collisions at sea.

The said collision was occasioned or contributed to by some or one of the acts or defaults set forth in the 5th and 6th articles of this answer, or otherwise by the negligence of those on board the Merlin.

The said collision was not occasioned by any negligence of those on board the Earl Spencer, but was, so far as they were concerned, an inevitable accident.

The case was heard on the 11th of February, 1875, on oral evidence by the judge, assisted by two of the Elder Brethren of the Trinity Corporation. It was admitted that the Earl Spencer, just before the time of the collision, was proceeding at the rate of eleven knots an hour, and that the Merlin did not show any light over her stern. The master of the 433] Merlin stated on cross-examination *that if he had seen the Earl Spencer sooner than he did, he would have shown a light over the stern of his vessel.

The master of the Earl Spencer was called as a witness on behalf of the defendants, and he gave evidence as follows: Until you saw this vessel I believe we shall be quite agreed you were going full speed?—Yes.

Is it your custom to go into the harbor full speed or not? -Yes, except when it is foggy.

On a dark night like this, and blowing?-Yes? if we did

not go full speed when it was blowing she would not steer, she would not come up to the wind.

Did you advisedly keep her going full speed?-Yes.
Do the mail boats do the same?-I believe so.

At all events, do you consider it the right thing or not to go in at night at that speed?-I consider that I could not get in between the jetty and the graving dock if I did not keep way on the ship to steer her in, especially with a gale of wind blowing.

Where would you ease in a general way?-While I am in the act of turning round the mail boat jetty.

Well, how far is that from the end of the breakwater ?A mile exactly.

You would have carried on full speed until then?—Yes. As a sailor and a commander of a steamship, was that, in your judgment, the right thing to do?-I always do it.

Do you judge that the right thing to do?-Yes, I do; otherwise I should not do it.

Captain Slaughter, a commander in the Royal Navy, who was the master of one of the mail boats between Kingston and Holyhead, was also called as a witness on behalf of the defendants. The following question was put to him by the counsel for the defendants, and was ruled by the judge to be inadmissible:

At what speed is it your custom to go into the harbor at night?

The examination of the witness by the counsel for the defendants then proceeded as follows:

Have you had much experience of navigating with steamers at Holyhead Harbor?-Ten years, night and day, eight months out of the year.

Now I ask you, in your judgment, having had that experience, is it right or wrong to go in full speed?

SIR ROBERT PHILLIMORE: Do not answer that question; right or wrong, of course, is a question of law. The Elder Brethren are here to advise on questions of nautical law. The question is a mixed question, in my judgment, of nautical skill and of nautical law, and ought not to be allowed. to be put.

*Milward, Q.C., and E. C. Clarkson, for the [434 plaintiffs.

Butt, Q.C., and J. P. Aspinall, for the defendants. [They cited The John Fenwick (); The Chanonry (†).]

() Law Rep., 3 A. & E., 500.

() 1 Asp. Mar. Law Cases, 569.

SIR ROBERT PHILLIMORE: The court entertains no doubt whatever with respect to a portion of this case, namely, that the steamer is to blame for the very reprehensible speed at which, in the circumstances of this case, she thought proper to enter Holyhead Harbor. But on the other point the court will take a little time to consider, and will deliver a reasoned judgment.

Cur. ado. cult.

Feb. 18. SIR ROBERT PHILLIMORE: The question reserved in this case is whether the Merlin be not to blame as well as the Earl Spencer-already pronounced to be to blame-because she, the Merlin, did not exhibit a light over her stern. I must consider this question with reference to the particular case and the general law.

First, as to the particular case. The Elder Brethren were careful to draw my attention to the fact that the crew of this little schooner were only four in number. That the master was engaged in steering and the three others in making sail, and in their opinion there was not time or opportunity to have exhibited a light over the stern. In this opinion I agree, but I am afraid I must also consider, secondly, what the general law is.

That law is to be found now exclusively in the regulations for preventing collisions at sea. The regulations carefully prescribe the occasions upon which lights are to be carried, and the character and position of those lights.

It is not denied that no express provision is to be found for the exhibition of a light to an overtaking vessel. The second article of the regulations rules that the lights mentioned in certain following articles and no others shall be carried in all weathers, from sunset to sunrise; and it is clear that the case of an overtaking vessel was in the con435] templation of the framers of the regulations, for *Article 17 says: "Every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel;" and if it be ever the duty of the vessel overtaken to exhibit a stern light, here was surely the place where it would have been mentioned.

It is no secret that great nautical authorities are divided in their opinion on the subject of the advantage or disadvantage of exhibiting a stern light. It may be proper that a regulation to this effect should be made. I do not offer an opinion on the point.

The regulations having an international character, any change would of course require great consideration, caution,