V.

SMITH.

1885-86. Imperial Act 36 & 37 Vic. c. 85, and the Merchants Shipping Act A.S.N. Co. Amendment Act of 1873. Lord Blackburn, in his judgment in that case, points out the difference between the section referred Faucett J. to and the corresponding sections of the two preceding Acts, viz., that each of the two earlier enactments contains the qualifications that "the collision shall appear to the Court to have been occasioned by the non-observance of the regulations;" while that qualification is omitted—and it must be presumed intentionally omitted-from section 17 of the Act of 1873. It was accordingly held in that case that where there was a collision, and one of the parties was guilty of the non-observance of the regulations, that party was to be deemed in fault, and that it was no longer necessary to be considered whether such non-observance of the regulations contributed to or caused the collision-often a very nice and difficult question-the only question to be considered being whether the circumstances of the case rendered a departure from the regulations necessary. If this case were applicable-in other words, if section 17 of the Imperial Act of 1873 were to govern the present case, the ground taken would not go far enough, as then it would not be necessary to consider whether the non-observance of this regulation contributed to the collision. It would be sufficient to show that there was a collision, and that at the time of the collision the Birksgate was on the wrong side of the harbour, in violation of the regulations; and in such case the plaintiffs could not recover, unless they showed that the circumstances of the case rendered the departure from the regulations necessary.

I confess that I thought for some time that the case was not governed by section 17 of the Imperial Act of 1873, and that it came under section 98 of our Colonial Act of 1871, according to which the law was the same as it was in England before the passing of the Imperial Act of 1873. But my attention having been called by his Honour Mr. Justice Windeyer to the Colonial Acts Validity Act, 28 & 29 Vic. c. 63, which was not referred to during the argument, I have again considered the matter.

By section 291 of the Merchant Shipping Act of 1854, the 4th part of the Act is to apply to all British ships. And sections 296, 297, 298, and 299 relate to cases in which there is a risk of

1885-86.

v.

SMITH.

collision, or in which a collision has taken place; and, looking at the very general and unqualified terms of these sections, and of A.S.N. Co. section 291, I see nothing that limits the operation of these latter sections to any particular places. On the contrary, I think they Faucett J. are intended to apply to all cases in which the risk of collision or a collision takes place in any part of the world—at all events in any place within the British dominions; and, therefore, although not made applicable by express words, I think they are, within the first section of the Colonial Laws Validity Act, "by necessary intendment," applicable to this colony as part of those dominions. And, then, as the Amending Act of 1873 is to be read as part of the Act of 1854, section 98 of our Colonial Act of 1871 is, by section 2 of the Colonial Laws Validity Act, to be read subject to section 17 of the Act of 1873, so far as there is any repugnancy. But there is a repugnancy, inasmuch as the latter section alters and increases the liability of the person who in a case of collision has disobeyed any of the regulations. I think, therefore, that section 17 of the Act of 1873, and the decisions upon that section, are applicable in the present in

stance.

But I doubt very much whether the point, as taken before the Chief Justice at the trial, or in the rule nisi, sufficiently raised this question, as it seems to have been directed more to the former state of the law; and if the matter were to rest on this point alone, I scarcely think a new trial ought to be granted.

Whether the case of The Khedive goes the full length of deciding that in every instance a person, who in the case of a collision has violated one of the important regulations, will be precluded from setting up as a defence that such violation of the regulation in no way whatever caused or contributed to the collision, is not necessary now to consider; but I hardly think it can be so, and in Emery v. Cichero (9 Ap. Cas. 139) the decision seems to be qualified or explained. It is there said: "The principle in cases of this kind, where there has been a departure from an important rule of navigation, is this, that if the absence of the observance of the rule can by any possibility have contributed to the accident, then the party in default cannot be excused."

1885-86.

New trial granted, rule made absolute; costs of new trial and

A.S.N. Co. of this motion to abide the event.

υ.

SMITH.

With respect to the second case, as the evidence is, as I have Faucett J. said, substantially the same as in the first case, it is sufficient to say that, for the reasons I have given in the first case, I am of opinion that the verdict in the second case is right, and ought not to be disturbed.

Windeyer J.

New trial refused, and rule discharged with costs.

WINDEYER, J. These were cross actions arising out of a collision between the steamer Birksgate, owned by the Australasian Steam Navigation Company, and the steamer Barrabool, owned by Howard Smith and Co., which collision and the consequent damage done to their vessel, the plaintiffs in either case attributed to the negligent management of the defendants' vessel. One of the parties declining to accept a suggestion that the cases should be heard by the same jury, they were tried separately.

The case of the A.S.N. Company v. Smith was tried before the Chief Justice, and resulted in a verdict for the plaintiffs, with 41721. 16s. 4d. damages.

The case of Smith v. The A.S.N. Company was afterwards tried before me, and also resulted in a verdict for the plaintiffs, with 49351. 118. 7d. damages.

The defendants in each case seek to set aside the verdict against them, and the Court, having heard the arguments in both cases before giving judgment, is now called upon to decide whether a new trial ought to be granted in either of them.

In the case of Smith v. The A.S.N. Company tried before me, the defendants seek to set the verdict aside, simply on the ground that it was against evidence, as the second ground upon which the rule nisi was granted was not argued, for reasons that need not be gone into. I propose to deal with this case first, not only because its consideration is unembarrassed by the legal questions which are raised for our determination in the other, but because by so doing I shall be best able to explain the reasons for the course which I think must be taken in dealing with the two cases.

It appeared, from the evidence given before me, that on the

1885-86,

9th of August, 1884, at about 11.15 p.m., the steamer Brrrabool A.S.N. Co. entered the Heads of Port Jackson, coal laden, from Newcastle.

v.

SMITH.

It was sworn by her master, her officers, and several of the crew Windeyer J. that the vessel, on getting inside the harbour, came up by what is known as the Western Channel, which is situated between the lightship at the Sow and Pigs rocks and Middle Head. The night being clear and bright moonlight the Barrabool steered the usual course, keeping Elizabeth Bay House in the line with Bradley's Head, which point had necessarily to be rounded to reach Sydney. When about halfway between Chowder Bay and Bradley's Head, the witnesses called from the Barrabool all stated that they saw the masthead and red light of the Birksgate coming from behind Bradley's Head, and they all agreed in saying that at this time the Barrabool must have been showing her green light to the Birksgate, on the Birksgate's port bow.

On seeing the lights of the Birksgate, the Barrabool was reduced to half speed and her helm ported a little to keep her as close as possible to Bradley's Head and allow the Birksgate time to cross the Barrabool's line of lights. The course thus taken and the management of the Barrabool as described by the witnesses, was said to be correct by Captain Bedford, the assistant harbour-master of Port Jackson, a most intelligent witness, who stood indifferent to either side, and his evidence entirely supports the case for the Barrabool. In the meantime the Birksgate stood on, still showing her red light, till she was about a point or a point and a-half on the port bow of the Barrabool, which vessel then put her helm hard-a-port to round Bradley's Head.

It should be here stated that the rule to be observed by vessels entering the port is that they should keep to the north side of the channel, whilst those going out are bound to keep to the south side of it. The effect of observing this rule would be to take the incoming vessel close round Bradley's Head, whilst the outgoing vessel would keep away from it.

The case for the Barrabool was that, whilst she adhered to the rule, and was rounding Bradley's Head in accordance with it, the Birksgate violated the rule, and in trying to pass between N.S.W.R., Vol. VII., Law.

v.

SMITH.

1885-86. Bradley's Head and the Barrabool brought herself into collision A.S.N. Co. with that vessel. It was further sworn by the witnesses from the Barrabool that when the red light of the Birksgate was, as before Windeyer J. stated, a point or more on the port bow of the Barrabool, the Birksgate suddenly showed her green light, and brought herself across the bows of the Barrabool. Directly this was done the Barrabool's engines were stopped and put full speed astern. The vessels were, however, at this time so close together that a collision was inevitable, and the Barrabool struck the Birksgate on her starboard bow, the Birksgate continuing to steam on without any diminution of her speed till she went ashore just at the eastern side of the extreme point of Bradley's Head.

At the time of the collision there was nothing in the harbour to prevent the Birksgate keeping her own side of the channel. The lights of the Barrabool were burning, and the night was so bright that the hull of the Birksgate could be clearly seen by those on board the Barrabool, the whistle of which was being sounded from time to time. The master of the Barrabool further stated that a very few seconds before the collision, and before the green light of the Birksgate appeared, she being then on his port bow, he gave the order hard-a-port to bring his vessel round Bradley's Head; and that as his vessel was thus moving on a port helm, it was impossible, in the few seconds that elapsed between the green light of the Birksgate appearing and the collision, to get the Barrabool from her port helm to a starboard helm course, and that the only thing to be done to lessen the force of the collision was to stop his vessel and reverse her engines, which he did, his vessel, at the time the order to stop was given, only going at the rate of three or four miles an hour.

The account given by the witnesses from the Birksgate was that that vessel rounded Bradley's Head at about 425 yards distance; that she was then steadied, and the Sow and Pigs light brought a point and a-half on her starboard bow; that when on this course the masthead and green lights of the Barrabool were seen about a mile or three-quarters of a mile off, and two or two and a-half points on her starboard bow, and that when the Barrabool got abreast of the Birksgate the Barrabool put her helm hard-a-port, and first showed her red light when