service under the control of the master or pilot of the tug, and is obliged to obey his orders. But in a case where a tug is voluntarily employed by shipowners to tow their vessel under such circumstances that the tug has the absolute control over the navigation of both tug and tow, and in fact acted as both tug and pilot, I submit that the tow would not be liable for the negligence of the tug. In The American and the Syria (31 L. T. Rep. N. S. 42; 2 Asp. Mar. Law Cas. 350) it was held that a disabled steamship, towed by another in such a manner that the "governing power" was wholly in the towing ship, was not liable for the negligence of the towing ship, and several American cases holding this doctrine were approved. In The Owners of the brig James Gray v. The Owners of the ship John Fraser and the steamer General Clinch (21 Howard U. S. Sup. Ct. Rep. 184) it appeared that the brig was at anchor in harbour, and the ship coming into harbour in tow of the steam tug ran into her, and it was found that the collision was occasioned by the sole default of the steamer, and that the steamer was not under the control of the ship; the proceedings were in rem against the ship and steam tug. It is there said by the court:

It is true that the John Fraser was the res, or thing which struck the James Gray, and did the damage. But the mere fact that one vessel strikes and damages another does not of itself make her liable for the injury; the collision must in some degree be occasioned by her fault. And as this collision was forced upon the James Fraser by the controlling power and mismanagement of the steam tug, and not by any fault or negligence on her part, she ought not to be answerable for the consequences." In Sturgis v. Boyer (24 Howard, 110, 121), which was also a proceeding in rem, it appeared that a ship was negligently towed into a lighter by a tug, which had the sole control over her for the purpose of removing her from one part of a harbour to another, the crew of the ship not being on board; it is there said: "Cases arise, undoubtedly, where both the tow and tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible, as where the tug is employed by the master or owners of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction, and management of the master and crew of the tow. Fault in that case cannot be imputed to the tug, provided she was properly equipped and seaworthy for the business in which she was engaged; and if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence, or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case supposed do not sustain towards those intrusted with the navigation of the vessel the relation of principal. But whenever the tug, under the charge of her own master and crew, and in the ordinary course of such employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board,

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from one point to another over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage through the fault of those in charge of the vessels must, under such circumstances, look to the tug, her masters or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. Vessels engaged in commerce are held liable for damage occasioned by collision, on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and, consequently, are held responsible for their conduct in the management of the vessel. Whenever, therefore, a culpable fault is committed, whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as liable for the consequences as if it had been committed by the owner himself. No such consequences follow, however, when the person committing the fault does not, in fact or by implication of law, stand in relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug or ship the crew; nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation: (Sproul v. Hemmingway, 14 Pickering, 1; 1 Parsons on Maritime Law, 208; The brig James Gray v. The John Fraser, et al., 21 How. 184). . . . Without repeating the testimony, it will be sufficient to say that it clearly appears in this case that those in charge of the steam tug had the exclusive control, direction, and management of both vessels, and there is not a word of proof in the record either that the tug was not a suitable vessel to perform the service for which she was employed, or that anyone belonging to the ship either participated in the navigation or was guilty of any degree of negligence whatever in the premises." then, a tug having the sole control of a ship she is towing is not the agent of the shipowners so as to render their ship liable for damage done by the ship through the negligence of the tug, charterers having the sole control of the ship they hire are equally not the agents of the owners of the ship, and cannot by their negligent acts render the ship responsible. There can be no distinction between persons controlling a ship by a motive power outside of her, and persons controlling her by means of her own motive force; if owners by their ship are not responsible for the acts of persons they employ to render towage services they cannot be responsible for the acts of persons who are in no way employed by them, but who are wholly independent of their control,

If,

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I submit that the second paragraph of the answer shows a good defence to the action.

E. C. Clarkson in reply.-The Druid (ubi sup.) was a decision proceeding upon the peculiar cir cumstances of the case; besides when Dr. Lushington spoke of "owners" he must be taken to have meant not merely the actual owners, but pro hâc vice owners, that is to say, persons whom the owners allow to be in position of owners for a reward to themselves. If the owners are damnified by this suit they will have their remedy over against the charterers. The American tug cases are distinguishable because there either tug or tow was responsible, and there was therefore a res to satisfy the damage done; here, however, if the ship is not liable for the act of the charterers there will be no res as security for the plaintiffs and the defendant cannot deprive the plaintiffs of their security by chartering their vessel.

Sir R. PHILLIMORE.-I think the law was correctly laid down by Dr. Lushington, and the elaborate and ingenious argument of Mr. Aspinall has not availed to convince me that I ought to come to a decision at variance with that given in the case of The Ticonderoga (ubi sup).

The words of Dr. Lushington in that case are these "We must recollect that this is a proceeding in rem. I am not aware, where there has been any proceeding in rem, and the vessel so proceeded against has been clearly guilty of damage, that any attempt has been made in this court to deprive the party complaining of the right he has by the maritime law of the world of proceeding against the property itself ?" This is the language in the year 1857 of that learned and experienced judge, and must be taken to be his deliberate opinion upon the law applicable to the subject. He goes on to say as if anticipating this very case: "Supposing a vessel is chartered so that the owners have divested themselves, for a pecuniary consideration, of all power, right, and authority over the vessel for a given time, and have left to the charterers the appointment of the master and crew, and suppose in that case the vessel had done damage, and was proceeded against in this court -I will admit, for the sake of argument, that the charterers, and not the owners, would be responsible elsewhere, although I give no opinion upon that point;-but still I should say to the parties who had received the damage, that they had, by the maritime law of nations, a remedy against the ship itself." Then Dr. Lushington refers to the case of compulsory pilotage as being the only case in which a vessel is exempt from the damage he has inflicted, on the ground that the pilot, being forced on the owners by compulsion, is by implication of law not the latter's servant; and then he says: "It is impossible to contend that because a person has entered into a voluntary contract, by which he is finally led into mischief, that that can relieve him from making good the damage he has done.

It is true that in The Druid (ubi sup.), Dr. Lushington ssid, "the liability of the ship and the responsibility of the owners are convertible terms. The ship is not liable if the owners are not responsible. And vice versâ no responsibility can attach upon the owners if the ship is exempt and not liable to be proceeded against." In that case however it should be remembered that the learned judge was dealing with damage done by the ship through the act of a mere servant or

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agent acting not only without authority but unlawfully. And moreover the true interpretation of the general proposition of law, there laid down, depends very much upon the sense in which the word 66 owners "is used. A vessel placed by its real owners wholly in the control of charterers or hirers, and employed by the latter for the lawful purposes of the hiring, is held by the charterers as pro hac vice owners. Damage wrongfully done by the res whilst in possession of the charterers is, therefore, damage done by "owners" or their servants, although those owners may be only temporary. Vessels suffering damage from a chartered ship are entitled prima facie to a maritime lien upon that ship, and look to the res as security for restitution. I cannot see how the owners of the res can take away that security by having temporarily transferred the possession to third parties. A maritime lien attaches to a ship for damage done, through the negligence of those in charge of her in whosesoever possession she may be, if that damage is inflicted by her whilst in the course of her ordinary and lawful employment, authorised by her owners. Whether the damage is done through the default of the servants of the actual owners, or of the servants of the chartering owners, the res is equally responsible, provided that the servant making default is not acting unlawfully, or out of the scope of his authority. I am of opinion that the second and sixth articles of the answer must be struck out.

Solicitors for the plaintiffs, Gellatly, Son, and Warton.

Solicitors for the defendants, Clarkson, Son, and Greenwell.

A ship, to be deemed in fault under the Merchant Shipping Act 1873 (36 & 37 Vict. c. 85) sect. 17, for having infringed any of the regulations for preventing collisions, must have infringed those regulations in such a manner that the infringement is material to the case before the court, and is such as might by possibility have caused or contributed to the particular collision; a mere infringement_which by no possibility could have anything to do with the collision, will not render the ship liable.

A ship carrying side lights which are visible only at the distance of about a mile, instead of at a distance of two miles, as required by the regulations, infringes those regulations so as to make her liable to be deemed in fault under the statute. Semble, that a ship carrying such lights must be deemed in fault, whether the deficiency of the light did or did not contribute to the collision. Semble, that where lights are so fixed that they are partly obscured from a particular point right ahead by the catheads of a ship carrying them, but are visible both above and below the catheads, there is no such infringement within the statute as will render the ship liable in a collision with

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another ship approaching broad on the starboard bow of the former.

The regulation as to the length of the screens of the ship's side lights, being for the purpose of preventing those lights from being seen across the bows of the ship carrying them, and being merely subsidiary for the purpose of securing the visibility of each distinct light, a ship carrying screens shorter than these required by the regulations, is not guilty of any infringment within the meaning of the Act, if the lights are not, in fact, seen across her bows, and it is shown that by reason of the construction of the ship, she could not have carried large screens with safety.

A steamer seeing lights close ahead of her, carried by some ship, and being unable to make out those lights, or the course of the ship carrying them, should slacken speed until she is able to ascertain the meaning of the lights, and to avoid the vessel carrying them.

THESE were three causes of collision, in which the main question was the construction of the 17th section of the Merchant Shipping Act 1873 (36 & 37 Vict. c. 85). By that Act (sect. 33), the 29th section of the Merchant Shipping Act 1862 (25 & 26 Vict. 3. 63), the section which enforces the observance of the regulation for preventing collisions at sea, is repealed, and the following enactment is substituted therefor :

Sect. 17.-If in any case of collision it was proved to the court before which the case is tried, that any of the regulations for preventing collision, contained or made under the Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the court that the circum. stances of the case made a departure from the regulation necessary.

THE MAGNET.

This was a cause of damage instituted on behalf of the owners of the Swedish bark Eugenie, against the British steamship Magnet and her owner intervening.

The case on behalf of the barque was, as appeared by their petition, as follows:-At about 12.30 a.m. on the 15th Nov. 1874, the Eugenie, a barque of 398 tons English measurement, bound upon a voyage from Liverpool to Buenos Ayres with cargo, was about four or five miles to the eastward of the north-west lightship, off the entrance of the river Mersey. The wind was about N.W. by W., a strong breeze, the tide was flood, the weather was dark and rainy, and the Eugenie was close hauled on the port tack, heading N by E, and going about eight knots an hour. Her proper regulation lights were duly exhibited and burning brightly, and a good look out was kept. At such time the mast head and green lights of two steamships, about a quarter of a mile apart, were seen at the distance of about two miles from the Eugenie, and bearing broad on her port bow. The Eugenie was kept close hauled on the port tack, and the head most of the two steamers passed clear ahead of her, but the sternmost one, which proved to be the Magnet, instead of taking proper measures for keeping out of the way of the Eugenie, improperly attempted to pass ahead of her, and rendered a collision inevitable, and, although the helm of the Eugenie was put up to ease the blow, the Magnet with her starboard side came into violent collision with the port bow of the Eugenie. The Magnet subsequently towed the Eugenie into the Mersey. The allegations of negligence against the Magnet were

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that she improperly neglected to keep out of the way of the Eugenie; that she improperly attempted to go ahead of the Eugenie; and that the Magnet did not duly observe and comply with the provi. sions of Article 16 of the Regulations for Preventing Collisions at Sea.

The case on behalf of the Magnet appeared in the defendant's answer, which, so far as is material, was as follows:

1. The Magnet is a screw steamer belonging to the port of Dublin, of the registered tonnage of 378 tons. A little before 0.40 a.m. on the 15th day of November, 1874, the Magnet, navigated by a crew of 20 hands, all told, was proceeding in the prosecution of a voyage from Dublin to Liverpool between the North-West Lightship and the Bar Lightship.

2. There was fresh breeze from the North-West, with thick cloudy weather and showers of rain, and a heavy sea was running. The Magnet was proceeding at full speed, heading about East South East, having her regulation lights duly exhibited and burning brightly, and a look-out being kept on board her.

3. At the time and under the circumstances aforesaid, those on board the Magnet observed a faint glimmer or reflection of a ship's light a little on the starboard bow of the Magnet, but it immediately disappeared. The master of the Magnet supposed the light to be the light of a vessel proceeding in the same direction as Magnet, and yawing in the heavy sea, and he ordered the helm of the Magnet to be starboarded, and the course of the Magnet was altered about a point under the starboard helm.

the

4. When this had been done, the port light of a vessel, which proved to be the Eugenie, suddenly opened out close to the Magnet on her starboard bow. The helm of the Magnet was immediately put hard-a-starboard, but it was too late to avoid a collision, and the two vessels came into contact, the bowsprit of the Eugenie striking the Magnet on her starboard side of the fore part of the bridge, The Eugenie dragged along the starboard side of the Magnet, tearing away the rails, bulwarks, and davits of the Magnet, and causing other damage to her.

5. The Eugenie neglected to have her side lights properly exhibited, according to the regulations in force for preventing collisions at sea, and was in fault for such neglect.

6. The said collision was occasioned by the negligence of those on board the Eugenie.

7. The said collision was not occasioned or contributed to by any negligence of those on board the Magnet.

8. The allegations contained in the petition save as admitted by this answer are denied.

Dec. 19, 1874.-The cause came on for hearing before the judge, assisted by Trinity masters. The case stated by the plaintiffs in their petition was substantiated by their evidence. The plaintiffs' witnesses were chiefly cross-examined with a view to show that their lights were defective.

The defendants' witnesses proved the facts stated in their answer. In cross-examination the master and mate of the Magnet admitted that the glimmer of the lights of the Eugenie, mentioned in the pleadings, was seen from half to three quarters of a mile away on the Magnet's starboard bow, and that no step, except starboarding a point, was then taken to get out of the way of the Eugenie, the master of the Magnet believing the Eugenie to be going in the same direction as himself, and yawing about. As the Magnet was going ten knots and the Eugenie eight knots, and the vessels going nearly at right angles to each other, the time between the sighting of the Eugenie's light and the collision, was not more than three minutes. The defendants called two Board of Trade surveyors who had inspected the Eugenie's lights after the collision; they gave evidence as to the position and as to the visibility of the lights. As to the visibility, they said that the lights were deficient;

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the lamps themselves were of a proper size, but by reason of the smallness of the wicks and the want of proper reflectors, the lights would not show at a greater distance than one mile from the ship'; as to the position of the lights they said that the lights were fixed abaft the broadest part of the ship, and were, in consequence thereof, obscured partly by the dead eyes of the foremast backstays, and partly by the body of the ship, and could not be seen right ahead of the barque; when lights are so fixed, the Board of Trade regulations always require them to be removed; they also said that the screens were too short by six inches. The effect of this evidence is sufficiently stated in the judgment hereafter.

It was objected on behalf of the plaintiffs that the fifth article of the defendant's answer did not sufficiently apprise them that any question as to the smallness or non-visibility of the Eugenie's light would be raised, and that the Eugenie being a foreign vessel, was not subject to the new enactment. The court desired the question of the liability of the two vessels, apart from the Merchant Shipping Act 1873, to be argued before going into the construction of that statute.

Dec. 18 and 19, 1873.-Butt, Q.C. (E. C. Clarkson with him) for the plaintiffs, contended that the lights of the Eugenie were visible to the Magnet at a sufficient distance to have enabled that vessel to keep out of the way of the Eugenie, and that she was solely to blame for having neglected to keep out of the way.

Milward, Q.C. (Gainsford Bruce with him) for the defendants contended that the Eugenie was solely to blame, apart from the statute, because those on board the Magnet were entitled to have the lights of the Eugenie visible for at least two miles, and the collision was occasioned by the default of the Eugenie in not giving the Magnet the opportunity of seeing the light distinctly at a greater distance than three quarters of a mile, when owing to faintness of the light and the speed of the two vessels, sufficient time did not elapse before the collision to enable the Magnet to take the necessary steps to keep out of the way of the Eugenie.

Butt, Q.C., in reply.

Sir R. PHILLIMORE, after shortly stating the facts: The steamer was clearly bound to keep out of the way of the sailing vessel. The steamer bas admitted that she saw the glimmer of a light about two points on her starboard bow, about half a mile or three-quarters distant, and she seems to have continued her course and to have gone at the same speed without taking any precaution to ascertain what the glimmer was by easing or stopping, or taking any precautions at all to get out of the way on seeing the glimmer, as she says, about half a mile off on her starboard bow. But upon the evidence I am satisfied, first of all, that the barque carried a perfectly good port light -that is to say so far as concerns this part of the case-and that it was visible at least a mile off. Upon that point I think that there can be no doubt at all, because the master of the steamer has himself very properly admitted that when he saw the light it was a very good light: and the master also said, "The light looked very well. I saw no difference between that and any other light." Whether the light came within the prescription of the regulations in the sailing rules is another question which will have to be hereafter

[ADM.

discussed. At present I am satisfied upon the evidence, and the Elder Brethren agree with me, that the red light of the vessel ought to have been visible at least a mile off on the starboard bow of the steamer, and that she ought to have ported and got out of the way. I must therefore pronounce, so far as this part of the case is concerned, that the steamer is to blame for this colllision. Whether the subsequent argument may convince me in regard to the statute and the sailing rules, that the other vessel is also to blame, I say nothing. At present I pronounce under the advice of the Trinity Masters, that the steamer is to blame for not getting out of the way of the barque.

The question of the liability of the Eugenie under the statute then came on for argument.

66

Milward, Q.C. and Gainsford Bruce for the defendants.-The question of fact to be considered here is not whether these lights were in accordance with the Board of Trade instructions, but whether they were in accordance with the regulations for preventing collisions which alone are of binding authority. By Arts. 3 & 5 of the regulations, sailing ships under weigh must carry side lights so constructed as to show an uniform and unbroken light over an arc of the horizon of ten points of the compass; so fixed as to throw the light from right ahead to two points abaft the beam; and of such a character as to be visible on a dark night, with a clear atmosphere, at a distance of at least two miles ;" and that the side lights "shall be fitted with inboard screens, projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow." The Merchant Shipping Act, 1862) 25 & 26 Vict. c. 63), sect. 29, enacted that if it should appear that a collision" was occasioned by the non-observance of any regulation," the ship by which such regulation has been infringed should be deemed to be in fault. This enactment is repealed, and the Merchant Shipping Act 1873 has substituted for it sect. 17, by which the mere infringement of the regulation, although not occasioning the collision, renders a ship to blame. The Legislature has imposed a penalty on vessels infringing the sailing rules, the effect of which is that although their infringment does not contribute to the collision, they cannot recover anything at common law, and in this court can only recover half the damage done, if the other vessel is also to blame, An infringement, however small or minute, entails the penalty. According to the evidence, these lights were not visible from right ahead in consequence of their position in the ship; although the Magnet was broad on the port bow of the Eugenie, and this infringement could not in any way have occasioned the collision, we submit that, it being an infringement, the Eugenie must be held to blame therefor. But in addition to this the lights were not so constructed as to show a light for a distance of two miles; a mile was the longest distance they would show. This is an infringement of the regulations bearing upon this very case. In The Hibernia (ante p. 454; 31 L. T. Rep. N. S. 805) the Privy Council found as a fact that the sailing vessel's lights were not burning, but that the steamer ought to and could have avoided her, and consequently that the want of lights did not contribute to the collision; it was nevertheless held that the sailing vessel was liable to be condemned, because she had no lights, and

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the tendency of the decision is to show that any infringement is enough to cause a vessel to be found in fault. It is admitted here that the screens are not too short. [Sir R. PHILLIMORE.— Suppose this rule is not complied with, and yet the lights are not seen across the bow, what follows?] Even if they were an inch too short, that would be an infringement making the ship in fault. It is absurd, however, to suppose that these screens must be parallel; if they were, there would be some point between the lights from which, however far off a person might stand, he could not see the lights; the screens must incline inwards so as to allow the rays of light to meet at some point well ahead of the bow. [Sir R. PHILLIMORE.-But even granting that there is an infringement of the regulations which would be enough to condemn an English ship, can this affect a foreign ship?] The plaintiffs have come to this court; they have chosen their own forum, and must therefore be bound by the lex fori. The court is not asked to condemn the plaintiffs for the breach of a rule which the Legislature has made and can make binding only on British ships when outside British waters, but it is asked to condemn the ship for the breach of a rule which is of international obligation. The breach of the rule is not contested, but it is said that the consequences of that breach ought not to be visited on a foreign ship; the consequences of a breach of the law are essentially such as we prescribed by the lex fori, and this law the court must administer.

The Amalia, 1 Moore, P.C.C. N.S. 484;

The Halley, L. Rep. 2 P.C. 198; 18 L. T. Rep. N.S.
879; 3 Mar. Law Cas. O.S. 131;

The Guldfaxe, L. Rep. 2 Adm. & Ecc. 325; 19 L. T.
Rep. N.S. 741; 3 Mar. Law Cas. O.S. 201;
The Explorer, L. Rep. 3 Adm. & Ecc. 289; 3 Mar.
Law Cas. O.S. 501.

Butt, Q.C. and E. C. Clarkson for the plaintiff.First, the section does not apply to foreign vessels. Sect. 17 of the Merchant Shipping Act 1873 was substituted for the 29th sect. of the Merchant Shipping Act Amendment Act 1862, which was incorporated with the Merchant Shipping Act 1854, and became part of the fourth part of that Act; by sect. 291 of the latter Act, the fourth part of the Act applies to all British ships; no mention is made of foreign ships. In the Merchant Shipping Act 1873, wherever it is intended that a section shall apply to foreign ships, the words," any vessel British or foreign" are used. Moreover, this is a statutory penal clause, and it is out of the power of the British Legislature to impose a penalty upon a foreign ship for an act committed out of British jurisdiction. [Sir R. PHILLIMORE.-The clause imposes a penalty, no doubt, but it is a penalty for the breach of a rule binding by international arrangement. The plaintiff has chosen to come to a court which enforces that international rule in a manner peculiar to itself. Must not the plaintiff submit to the lex fori? In The Halley (ubi sup.) it was held that although the obligation to employ a pilot in foreign waters was coupled by the foreign law with liability for his acts, the foreign law did not apply, but that the lex fori, which exempted owners from the consequences of his act, did apply. If the consequence of the act or omission in the case of pilotage is to be governed, not by the law applic. able to the particular ship by the universal law, but by the lex fori, the consequence of the breach of the sailing rule must be governed by the lex fori] VOL. II., N.S.

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The Halley was a mere question of agency; a question of responsibility for the acts of a third person; this case, however, turns upon the question whether a foreign ship can be, under a British statute, held liable for an act for which she would not be responsible, either by the common law of England, or by the maritime law of nations.

Secondly, there has been no such infringement of the rules as will render the plaintiff's ship in fault within the meaning of the statute. It is impossible to comply absolutely with the regulations as to lights; by the rules the lights must be seen from right ahead to two points abaft the beam, and at the same time they must be so screened as not to show across the bows; if this latter regulation as to screens is strictly complied with the screens ought to be parallel, so as to prevent the lights showing across the bows, but if the screens are parallel there will be some point right ahead of the vessel at which neither light can be seen, and however far off you go from the vessel, keeping that point and the vessel's bows in a line, the lights will be invisible; hence it is clear that the screens must converge on some point ahead of the vessel in order that the lights may be seen from right ahead, but this is not a strict compliance with the regulations, hence we contend that the act requires only a substantial compliance with the regulations. An infringement to bring a vessel within sect. 17 of the last Act must be a breach of the regulations which is immaterial to the cause being tried, and is material in fact or substantial; an infringement which might possibly have contributed to the collision. The section ought to be read with the former enactments. By the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), sect. 298, it was provided that if it should be proved to the court that the collision was occasioned by a nonobservance of a rule, the owner of the ship by which such rule was infringed should not be entitled to recover any recompence for the damage sustained unless it was shown to the satisfaction of the court that the circumstances of the case rendered a departure from the rule necessary. This was repealed, and the 29th section of the Merchant Shipping Act Amendment Act 1862, substituted therefor, and it was enacted that if the collision was occasioned by the non-observance of any regulation, the ship by which such regulation was infringed should be deemed in fault, unless, &c. The last enactment was unnecessary; as it was only expressive of the common law, and the 17th section of the Act of 1873 was no doubt intended to more strongly enforce the regulations, but it was not intended to render a ship to blame for a breach of the regulations which could by no possibility have occasioned the collision. For instance, a vessel approaching another in such a way that she could only show her port light, could not be to blame for not carrying a proper starboard light. If there has been a material infringement which might have contributed to the particular collision in question, then the ship would be within the terms of the Act, but not otherwise. In this case the light itself could not have contributed to the collision as it was visible a mile away, nor could its position as the defendant's ship approached the plaintiff's ship broad on her port bow, nor could the screens for the same reason. In the Hibernia (ubi sup.), the want of lights did contribute to the collision, and the case 21