ADM.] THE NORTH AMERICAN V. THE WILD ROSE. [ADM. and at what particular part of the river it was so dense as has been represented, is another and a very different question, upon which there is much contradictory evidence. Here is a vessel of 1300 tons lying in the river Mersey at anchor, and she is run into almost, if not quite, in a straight line, by a steamer whose custom and habit it was to cross the river plying for passengers. Under these circumstances there is no doubt what is the law, viz., that the steamer must show that that collision was occasioned by inevitable accident, and circumstances she could not control, or that it was exclusively the fault of the North American, since it is manifest that a vessel lying at anchor is incapable of getting out of the way, or of adopting any measure which might prevent a collision, at least to some extent. In the course of the argument it was suggested, but not argued, that the fog might have been so dense that it would have been incumbent on the steamer not to have proceeded on her usual occupation because of the danger she might incur. Had the circumstances given in evidence produced such a case, the court would not, for a moment, have hesitated in saying that it would have been the duty of the court, upon these pleadings, to have taken cognisance of it, and to have considered the case upon the fact, proved or not proved. I wish to make a reference, as it is a matter of great importance, whether steamers are at liberty to follow their avocation in a thick fog, when following that avocation might produce damage to property, goods, or loss of life, to the case of the Giralamo, decided by Sir John Nicholl. In that case the vessel was going down the river Thames in tow of a steamer, and having a pilot on board. When she started there was no fog, but a fog came on, and the learned judge laid it down in very strong terms, that it would have been the duty of the master to have superseded the pilot, and to have caused the vessel to come to anchor, rather than incur the risk of collision with other vessels. I, perhaps, might n go quite the whole length that Sir J. Nicholl wet on that occasion, but the general principle I should adopt, viz., that if there be an opportunity of stop ping, attempting to follow a course which would produce possible injury to life, and certainly to property, it is the duty of those who have the control of steamers, notwithstanding the state of convenience and urgency of passengers, to hold their hand. Looking at the steamer's own description of the state of the morning, and the density of the fog almost immediately after she quitted Seacombe, it was a case in which the utmost vigilance was requisite and necessary, and she ought to have had the very best look-out; and not only so, but to have gone at that rate which would have enabled her, if taken by surprise, or coming in contact, or apparently in contact, with another vessel, to avoid collision. Taking into consideration the nature of the morning and the risk run, were all proper measures of precaution adopted the steamer, and, having regard to the size of the North American, was that ship descried by the steamer in due time, and whether or not, despite no bell having been rung on board the North American, might she not have been seen in time so as to avoid the collision? If so, the steamer is wholly to blame. If, on the other hand, the weather was 80 foggy that the North American ought to have rung a bell according to the statute, and did not, the North American would be in default. Upon the whole of the evidence the court was of the latter opinion, and must hold that the Wild Rose was not to blame for the collision, and there must be a decree accordingly. collision was wholly occasioned by the improper navi- | gation of the Wild Rose and by the negligence of those on board her, and that it was not caused by the negligence of those on board the North American, but was, so far as they were concerned, an inevitable accident. | The defence for the Wild Rose represented that she is employed for the purpose of plying between Seacombe-ferry and the Liverpool landing-stage, and conveying passengers and goods between those two stations; that about 4:15 on the morning in question she left the Egremont-ferry, where she had been coaling for the Liverpool landing-stage, and that whilst so proceeding the master of the Wild Rose saw the North American lying athwart the tide, swinging to her anchor nearly in mid-river, but somewhat closer to the Cheshire side; that she reached the Liverpool landing-stage, and while remaining there the fog commenced and gradually increased and extended; that about 5:30 a.m., having left the landing-stage for Seacombe-ferry, she started from Seacombeferry for Liverpool, and the fog had then extended, and the North American was not visible to those on board the steamer; that on leaving Seacombe-ferry the master of the steamer took his station on the bridge between the two paddle-boxes, and the engineer and helmsman were at their respective posts; that the master of the steamer shaped his course so as to go south of the place where he had previously as aforesaid, on his passage from Egremont-ferry to the Liverpool landingstage, observed the North American lying, and north of another vessel at anchor higher up the river; that from the time when the Wild Rose left Seacombe up to the time of the collision, her steam whistle was kept continually sounding, and a good look-out was maintained; that soon after the Wild Rose left Seacombe, the fog became uddenly exceedingly dense, and thereupon her engines were immediately stowed; that some short time afterwards the North American first became visible to those on board the Wild Rose, but at that time the two vessels were so near to one another that it was then quite impossible for the Wild Rose to avoid the collision; that her engines were, however, stopped at once, and were immediately afterwards reversed full speed, and her helm was put hard a-port; but, notwithstanding these precautions, the Wild Rose came into collision with the North American. The statements in the case of the North American were then denied, except those to which the defts. referred; and it was contended that a proper look-out was not kept on board the North American, that those on board that vessel did not duly hail the Wild Rose at a sufficiently early period; and that they improperly neglected to take any steps to avoid the collision; that, although there was a fog, they did not use and sound her bells, in accordance with the provisions of the Merchant Shipping Act Amendment Act 1862, but wholly made default in so doing; that the place where the North American was lying was opposite to a public ferry, and was such as to make it peculiarly incumbent on the North American to use all possible precautions for the purpose of warning other vessels of her position in the river; and that the collission was neither the fault of the North American nor the result of inevitable accident. Now. that there was on the morning of the 23rd May, that which any rational man would have termed to have been a fog existing at some time or other in the river Mersey, there cannot be a shadow of doubt, because there is evidence of facts from which that inference must necessarily be drawn these are the entries from three of the landing places, and the fact that vessels had crossed backwards and forwards, and all of them had used the whistle. Assuming that to be a proved circumstance, but at what particular time the fog prevailed, on board The Court was assisted by Capt. Redman and Capt. Nesbitt. A French vessel having been sold in a damage suit, another suit (for necessaries) was instituted against the balance of the proceeds of the sale of the vessel : Held, that the master's claim for expenses of a person assisting him in the defence of the suit did not constitute a claim for necessaries; but The French owners having executed an act of abandonment of the vessel, the Court decreed payment of the claim. The Bonne Amelie, a schooner belonging to French owners, came into collision with an English schooner, called the Siren, and was arrested at the suit of the owners of the latter vessel, and the Bonne Amelie was not bailed, and having been found to be alone to blame for the collision, was subsequently sold in satisfaction of the decree in that suit. The present suit, in respect of necessaries and other claims, was then instituted; and, after payment of all the claims against the vessel in respect of the damage suit, there remained a balance of 1351. 2s. 1d. The owners did not appear in this suit also, but their proctor in the damage suit had entered a caveat against the payment of the proceeds, and claimed a lien upon them for his costs in that suit. The court was now moved to direct payment of the plts.' claim (the particulars of which sufficiently appear in the judgment) out of the above balance. V. Lushington for the plts. Dr. LUSHINGTON.-This is, in point of amount, a trifling matter, but it behoves the court to be exceedingly cautious in exercising the power entrusted to it of directing sums demanded as necessaries to be paid out of the proceeds. Now the affidavit states two kinds of claims: one claim was clearly for necessaries such as money advanced for the purchase of butcher's meat and articles of that description, for the maintenance of the crew, and I have decided before, and again decide, that this comes within the terms of the Act of Parliament as necessaries, and that money advanced, not to pay for those necessaries where a debt for necessaries has been incurred, but in order to enable the master to purchase them, constitutes a valid claim. With respect to the other part of the claim, it is for two items, one for the expense of the harbour-master in coming up to London from Newcastle during the progress of the damage suit in order to assist the master, or for the master's interest in defence of this vessel, and the other for the costs of his coming up with the master to attend the trial. Now in no sense of the word can I consider these to be necessaries within the purview of the statute, but if no caveat had been entered, and if the owners in France had abandoned the proceeds which remain in the registry, I should have very much inclined to have acceded to this motion, and for this reason, that by the law of France the abandonment of the ship itself releases the owners from all personal responsibility, and that, therefore, by that act the plts.' right of action in respect of this, which is a just claim, would have been extinguished. As the case now stands all I can do is to pronounce for so much of the claim as relates to what I have described as, legally speaking, necessaries. With regard to the last two items I have mentioned I make no order. [ADM. Subsequently the court was satisfied that the French owners had executed an act of abandonment, and that the caveat was withdrawn, and it, therefore, decreed payment of all the items claimed. Thursday, Nov. 23 1865. (Before the Right Hon. Dr. LUSHINGTON and TRINITY MASTERS.) THE ALEPPO. Collision-Evidence-Admission in the answer. Evidence of an order as to the lights given twelve hours before the collision is admissible, but not of conversation with respect to them. A steamer steering N.E. N., and a schooner close hauled on the starboard tack, and heading W., came into collision. The answer on behalf of the owners of the steamer alleged that the schooner was seen threequarters of a mile off on the starboard bow, but that she had no lights, and was mistaken for a vessel going the same way as the steamer. All the crew of the schooner were drowned, and the evidence for the plt. consisted of one witness as to the state of the schooner's lights some hours before the collision. The defts. called no witnesses: Held, that the plts. were not bound to call witnesses from the defts.' vessel. And that, from the admissions in the answer, the schooner was seen in ample time for the steamer to have avoided her, and that therefore the steamer was alone to blame for the collision. This was a cause of damage in respect of a collision which occurred on the 24th Aug. 1865, about eight miles to the westward of the Bardsea Island, between the schooner Charles Edward, bound from Duddon to Cardiff with a cargo of iron ore, and the screw steamer Aleppo, bound from Malta to Liverpool with a cargo of grain. Milward, Q. C. and Cohen appeared for the plts. Brett, Q. C. and V. Lushington for the defts. On behalf of the schooner it was pleaded that she was close-hauled on the starboard tack (heading W. with the wind from N.N.W.) with her proper lights exhibited, and a good look-out; that she kept her reach and was run into by the steamer, and that the collision was caused by the Aleppo and those on board thereof in not having a good look-out, and in not slackening and reversing her engines, and generally in not keeping out of the way of the Charles Edward. On behalf of the owners of the Aleppo it was alleged that she had her proper lights exhibited and a good look-out, and the 5th article of the answer was as follows: In these circumstances a vessel which afterwards proved to be the schooner Charles Edward was observed a little on the starboard bow, distant about three-quarters of a mile. No lights could be seen on board her, and it was conceived that she was going the same course as the Aleppo, and the Aleppo's helm was starboarded to give her a clear berth. Shortly afterwards the strange vessel was made out to be standing across the bows of the steamer, and the steamer's helm was The engines were also slowed and stopped; but, nevertheless, a collision took place, the stem of the Aleppo striking the schooner on the port quarter whereby the schooner was sunk and lost. thereupon put hard a-port All the crew of the schooner were drowned, and in support of the plt.'s case James Coppack was called, who deposed that he was master of the Lady Caroline, which, with the Aleppo, put into Holyhead on the Saturday previous to the collision. Both vessels remained there till 2 p.m. of the Tuesday following. The witness also stated that he was on board the schooner just before she sailed, and was then ADM.] THE ALEPPO. [ADM. asked by Milward whether he heard any order | the collision? And you must also bear in mind that given by the master of the schooner as to her lights, whereupon Brett, Q. C. objected. The order was given so long before the collision that it must be immaterial, and it was given behind the back of the defts. Dr. LUSHINGTON.-If the learned counsel had asked what was said in common conversation I could not allow the question to be answered; but an order is a different thing, as it may be a fact as well as a declaration. Whether the question is immaterial or no must depend upon the answer. The question was then put, and the witness stated that the master ordered the boy to get the lamps and clean them, as the schooner was going to sea that night and would want them. The witness also stated that both vessels put to sea together the same afternoon, and about six o'clock he saw the schooner's lights fixed and burning, and as late as ten o'clock saw ship's lights from the direction in which he believed the schooner then was. No other witness was called for the plt., and the defts. declined to call witnesses. Dr. LUSHINGTON, in addressing the Trinity Masters, said:-Now, Gentlemen, we are in a state of difficulty in this case. It is perfectly true, as Mr. Brett has said, that the determination to which we may come must not in any degree be affected by sympathy for those who have had the misfortune to be losers by the collision. We have no right to say that, because, by a great calamity, the lives of the crew and the property of the owners of the vessel have been sacrificed, therefore we should come to any other conclusion than that which the evidence justifies and the law requires. On the other hand, because the evidence of those on board the schooner is lost, I cannot think there was any obligation upon her owners to resort to witnesses from on board the Aleppo in order to illustrate their case. It is perfectly true that such testimony might have been resorted to; but it is so contrary to all our practice, and to all fair probability of attaining a just end, that I never could hold there was any obligation so to do; but, before we can come to a decision in the plt.'s favour, we must nevertheless be satisfied somehow or other that there is legal evidence to warrant the conclusion. Now, the plt.'s case may be proved not only by the evidence adduced, but by the admissions in the cause; and I begin by stating that I discard entirely from my consideration every fact in the petition which is not admitted in the answer, or the deft.'s preliminary act. What, then, are those facts? A small schooner, the Charles Edward, the property of the plt., had the misfortune to come into collision with the vessel arrested in this cause, a large steamer, proceeding at the rate of, according to the defts.' own statement, about nine knots an hour, with her topsails set, and steering by the standard compass N.E. half N. Now, the fifth article of the answer is this. [The learned Judge then read the fifth article, cited above, and observed that the same account was given in the preliminary act, and proceeded:] Admitting, therefore, that the schooner had neglected to comply with the Act of Parliament, and was sailing without lights, still, if she was seen at the distance of three-quarters of a mile, it must have been a very clear night, a fact which is directly deposed to by a witness, Coppack; and, assuming for a moment (and this is entirely for your consideration) that she was seen at the distance of three-quarters of a mile without lights, was there not ample time for the steamer to have discovered the true course of the schooner, and to have taken proper measures, and in due time to have avoided it is not alleged, so far as I can understand, that The learned Judge and the Trinity Masters then retired, and, after consultation for a few minutes, returned, when Dr. LUSHINGTON said :-As this is a peculiar case I shall deviate from the usual custom and read the advice which I have received from the Trinity Masters. Had the Aleppo, when she first saw the schooner, put her helm a-port, the collision would not have taken place. Had the Aleppo, when she saw that the schooner was standing across her bows, gone on full speed and kept her helm hard a-starboard as it had previously been, she would have gone clear. It was the indecision of the Aleppo in changing her helm which caused the Monday, Jan. 8, 1866. (Before the Right Hon. Dr. LUSHINGTON.) THE BANDA AND KIRWEE BOOTY. Booty of war-Right to begin-Practice. In cases of booty of war the actual captors, though they may institute the suit, are plts. only in name, as the burden of proof rests with those claiming a right to share in the booty. In such cases those who have the burden of proof have also the right to begin. This was a cause of booty of war, and had been referred to the court under the provision of 3 & 4 Vict. c. 66, s. 28, and of an Order in Council bearing date the 16th June 1864. [ADM. with it upon the merits, which are as much known upon the present occasion to one party as to another, and a single reply would follow from the plts. in the usual manner. There is no rule of practice applicable to this court at all which can in the slightest degree interfere with it. Prize cases are not precedents for this purpose, nor is the Deccan case, for in that there were only one plt. and one deft. Dr. LUSHINGTON.-There were more parties than those in the Deccan case. The Attorney-General.-The only parties heard besides those whom I have mentioned were the East India Company; but your Lordship will recollect that they claimed, not as captors, but on quite a distinct footing. It would, under the circumstances of this case, be a positive injustice to the plt., under the pretence of recogpising in him a primâ facie right (because he is admitted at all events to have some interest), to deprive him of the usual right of plts. in all courts to make out their own case, and to have a general reply. The booty had been captured at Banda and Kirwee, in India, in the year 1858, by a force called the Rolt. It would be contrary to the ordinary course Madras column, under the command of Sir G. C. of procedure, and contrary to the convenience and Whitlock, K.C.B., and it having been referred to justice of the case, if the plts. were now to begin. It this court to declare who are the parties entitled to is not in all cases the rule that the plt. begins; the booty and in what proportions. The suit was those upon whom the affirmative of the issue is instituted on behalf of the Madras column, and thrown are the parties who have to begin. They after the issue of a citation calling upon all parties are usually the plts. ; but upon whom does the to appear in the suit, who claimed to share as cap-affirmative of the issue rest in the present case? tors, a petition was filed by the plts. claiming, as sole captors, to be exclusively entitled to the booty. Appearances and answers were also filed on behalf the officers and men of various forces who claimed be also entitled to participate as having constructively assisted in the capture. The Attorney-General, the Queen's Advocate, Prendergast, and Ayrton appeared for the plts. Rolt, Q. C., Cotton, V. Lushington, Bovill, Q. C., Dr. Deane, Q. C., V. Harcourt, Q. C., Brett, Q. C., Cohen, Proctor, the Solicitor-General, Pritchard, Coleridge, QC., Bullar, E. C. Clarkson, Price, Q. C., Kemplu, W.M. James, Q. C., Denman, Q. C., Bayford, Karslake, QC., Collier, Cole, Q. C., Piffard, Hughes, Pollock, Mellish, Q. C., J. Paterson, F. Kelly, Hume Williams, Walker, Dr. Twiss, Dr. Tristram, and Goldsmith, for the various defts. claiming as joint captors. The right of the plts. as such to open the case was disputed on behalf of the defts., and a discussion ensued. The Attorney-General.-This case is sui generis, in that it is the first case of military booty that has been referred to the court at all under the Act of Parliament, and it is also sui generis in another respect, and because, instead of a simple question between the actual captor on the one side and persons claiming to be captors by construction upon the other, we have a large number of defts. who cannot be reduced into less than ten or eleven distinct cases, all of which depend upon the view which may be taken of the effect of each of the various operations in the general design which is alleged to have existed. The right prima facie belongs everywhere to all plts. to open the case to the court, and if it were denied in this instance every one of the defts would have, in the first instance, to open his case, and the plts. answer at least eleven cases at once. And then after the plt. had been heard there would be eleven replies at least. In principle, and in point of convenience, the justice of the case, and the time of the court, would be consulted by the plt. opening his case, dealing Clearly upon the defts., as the resps. to the plts. in this case, to establish that they are entitled to share with Sir George Whitlock's column in the booty taken at Banda and Kirwee. What would be the case if they did not begin? It is utterly impossible, the plt.'s title being admitted, that he should will have to do that for the first time in his reply; meet the points which are raised by the defts. He new points will be put forward by him and pressed against us in his reply, and we shall have no means whatever of meeting those answers which may be given to our case. Whoever begins, it will be absolutely indispensable that some reply-whether one or more is another question-must be given to that reply to our case which the Attorney-General of course at some time or other must give. We rely first upon the universal practice, and next upon the fact that the universal practice is consonant to the convenience and justice of the case. There is no case in which an actual captor claiming the whole of the prize, and claiming to exclude some portion of the fleet, has actually begun, but, to use an expression more or less accurate, the constructive captors always begin. The Solicitor-General.-In the report of the Deccan case, the following discussion took place:-Dr. Lushington: "Your Lordships will permit me to make one observation. Your Lordships were pleased to say the other day that the counsel for Sir Thomas Hislop were to commence. I humbly submit to your Lordships whether, as this is to be assimilated to a regular prize cause, where the commencement is on those who claim as joint captors, we ought not to begin." Mr. Harrison: "All our documents have been in the hands of the other side a considerable time, but we have heard nothing of joint capture." Earl of Liverpool: "I think it would be desirable that we should decide that now, would it not?" Dr. Lushington: "I should think it would, my Lord. Your Lordships will permit me to state that the ground upon which I humbly contend it would be more regular that we should commence, is simply this, that in every case within my experience in which a claim is made to share as a joint captor, the claim of the actual captor being admitted, in all those cases it has been customary for the joint captor to state his case, and to begin in the first instance; and I apprehend that is consistent with universal principles-that the onus probandi lies on him. He who has actually effected the capture cannot be expected to go on, for it will be impossible for him to know the grounds on which the case is to be put." The general rule of the Admiralty Court was followed in that case. Take the well-known case where an action of ejectment is brought by the heir-at-law, and the question to be tried is whether the heir 18 entitled or the devisee. The heir is the plt., but it is the well-known practice of all the courts, and in fact not disputed, that if the deft., the devisee, chooses to admit the prima facie title of the heir, he is entitled to begin. The same rule prevails in every case in common law in which the affirmative issue is on the deft., with the exception of one or two cases in which the damages are unliquidated; but they do not apply here. That being the ordinary rule certainly of the courts of Common Law and of the Admiralty Courts also, why is this case to be an exception? The principle is the same whatever may be the number of the joint captors, and the joint captors on whom the onus probandi lies should begin, otherwise the plt. will have in a great measure to prove a negative. He proves that he has captured; but that is not enough for him to do; he must also prove a negative against each of us. Dr. LUSHINGTON.-It was impossible for me to have read these papers without anticipating that in all probability this very question would arise, and that I should have in the first instance to determine what course was best to adopt in order to attain the great end that is in view, namely, the due administration of justice. Now, the determination of the court depends partly upon what has been the established practice in questions of this description, and partly upon the consideration of upon whom the onus probandi lies, and lastly upon what course will be best to attain the end of justice. Now, with regard to the practice, there has been no practice, so to speak, with respect to booty taken on land. There has been an established practice with respect to vessels captured at sea, and with respect also to conjoint operations of the army and navy. In both those cases, without any exception, the rule has been that those who claim to share in the joint capture began to state their case, and afterwards were entitled to reply. I believe that no instance can be brought forward, either in the Court of Admiralty or in the Court of Appeal, in which this course was not pursued. If, therefore, practice is of importance, practice would induce me to adopt the course which has been followed in so large a number of instances. Now, with regard to the onus probandi, and to the fact that upon the present occasion the actual captors are the plts., in truth and in fact they are pits. in name only; they are made plts. upon the present occasion only for the purpose of calling into the arena those persons who might have set up a claim to the booty in question. I do not know that this was precisely the best course which could have been pursued. Another course might have been pursued had it been deemed necessary so to do, but this was clearly the most expedient. With regard to the onus probandi I apprehend that whenever the onus probandi is fixed upon a party it is the duty of that party to begin and to produce proof in order to establish his case. There is no onus probandi upon the Attorney-General's party ; they are the actual captors, and unless another case can be made out which shall show that other parties are entitled to share with them, they are entitled to take the whole of the booty. Now, [ADM. according to my knowledge, and so far as I can pretend to give an opinion upon the subject, in all cases appurtenant to the present where the probandi has been imposed upon a party, they are entitled to begin in order to fulfil that duty. Nay, I believe it has gone so far as this: that even in cases where the onus probandi în the original instance did not attach upon a party, yet, if in the course of the proceedings the onus probandi shifted. and did attach upon a party, they were bound to produce the evidence. If my memory does not fai me, I think that even in the great trial in th Deccan case that was the principle that wa adopted. And looking at all those matters. appears to me with regard to the Attorney-General's proposition, that although it is true that much inconvenience might be avoided, and much probee delay might be saved, yet that it militates bet against practice and against principle, and I appre hend that it is my duty, whatever may be the time which this case may occupy, whatever labour the ovar may have to undergo, to choose that course which is most adapted to attain the end of justice and most consonant with past practice. Therefore, th proper course will be for the other claimants to begin. Tuesday, Jan. 16, 1866. Collision-Second arrest-Practice. The jurisdiction which the court undoubtedly possess to order a second arrest in respect of the same caus action should be cautiously exercised. Application for such an arrest should be made to the court itself. This was an application for a supersedeas to iss of a second arrest of a vessel in respect of the s cause of action, and to condemn the plt. in the and damages occasioned by the second arrest. As in respect of damages had been commenced in t sum of 1000l. against the vessel and her cargo. Bail had been given in the sum of 1000l. and the property released, and it being desirable afterwards to increase the amount of the action to 3000l the proctor for the defts. agreed to the increase, and bail; subsequently, however, the owners of the sent to the plts.' proctor the names of the proposed vessel refused to give bail, and the plts. aga arrested her. V. Lushington moved for a supersedeas and con tended that the court only could order a second arrest in respect of the same cause of action, and that the cargo could not be arrested, as no freight had yet become due. Dr. LUSHINGTON.-Surely, in all cases of damage, the plt. has a right in the first instance to arrest the cargo, as the presumption is that freight is due until the contrary is shown. Brett, Q. C. and Clarkson contended that if the application for a second warrant had been made to the court it would have been granted, and therefore the defts. had no cause of complaint. At common law, in order to increase the amount of damages, a second suit is instituted and the first one discontinued, and that is in effect what has been done in the present case. Dr. LUSHINGTON.-The court has no doubt that it has the jurisdiction to order a second arrest, but it is a power which should be cautiously exercised and, unless under exceptional circumstances, only after an application to the court itself. Under all |