C. P.] MACANDREW AND ANOTHER v. CHAPPLE AND OTHERS. [C. P. a steamer of the size of the Ephesus at that period of | first, that the ship was not every way fitted for the the year. About the middle of the month of Dec. 1864 the plts. proposed to the builders, at the request of Randolph, Elder, and Co., that the vessel should make a trial trip to sea and back over the bar; but this was objected to by the builders, and thereupon it was arranged that the vessel should make her trial trip from Newcastle to London instead of returning to the Tyne, and that the deficiencies of her machinery, if any, should be made good in London. Accordingly, on the 12th Jan. 1865, the ship left Newcastle for London with 1400 tons of coals. Before leaving Newcastle the ship, in order to avoid delay at Alexandria, loaded sufficient ballast to enable her to bring back a cargo of cotton from Alexandria, but no delay at Newcastle was occasioned by her so doing, or by the shipment of the coals. The ship met with accidents to her machinery between Newcastle and London (where she arrived on the 15th Jan. 1865), and was detained in London repairing the same for about six weeks, but such repairs were executed there as speedily as they could have been done at Newcastle. While in London the ship took on board goods for Malta, Syra, Constantinople, Smyrna, and Alexandria, but no delay was thereby occasioned, the goods being shipped before the repairs to the machinery were complete. She sailed from London on the 1st March 1865, and again met with accidents to her machinery and put into Plymouth, and was kept there a few days repairing the damage done, after which she sailed on the 9th March 1865 from Plymouth for Malta, and after touching and unloading cargo there and at Syra, Constantinople, and Smyrna, arrived at Alexandria on the 29th April 1865. The ship, when she sailed from Newcastle, was not complete and ready for the chartered voyage. There is no usage of trade by which vessels bound from Newcastle or London to Alexandria are justified in taking goods to Syra, Constantinople, or Smyrna, if the geographical position of the various ports does not warrant such a course. The question for the opinion of the court is, whether under the aforesaid circumstances the plts. have a right of action against the defts. for refusing to load the Ephesus at Alexandria, as aforesaid. The court, or court of appeal, is to be at liberty to draw all such inference of fact as a jury would be entitled to do. If the court shall be of opinion in the affirmative, then judgment shall be entered up for the plts. for 41331. 3s. 9d., and costs of suit. If the court shall be of opinion in the negative, then judgment of nol. pros., with costs of defence, shall be entered up for the defts. Mellish, Q. C. (Cohen with him) for the plts.The question is, if there was such delay in bringing the ship to Alexandria as to relieve the defts. from their obligations under the charter-party. There is no warranty as to the condition of the vessel when the charter was made, or as to the time it would take to get her ready. The words "on being ready" clearly imply that she was not ready when the charter was made, and therefore the ship is not represented as a complete ship practically ready for sea. It is found in the case that the plts.' agent told the defts.' agent that he would not guarantee the time when the ship would be ready. It is objected that that is not evidence; but I submit that it is admissible to show that the defts. were informed of the condition of the ship, and though it cannot alter the meaning of the charter, it is one of the surrounding circumstances. It may be said that there are two breaches of the charter, voyage to Alexandria when she left Newcastle; Behn v. Burness, 1 B. & S. 877; E. James, Q. C. (Watkin Williams with him) for the defts. Whether or not this is a condition precedent depends upon the intent of the parties as gathered from the contract itself, and not on matters subsequent. If it is a condition precedent, and the plt. has been guilty of a violation of it, the extent of the damage which the deft. has sustained is immaterial, the condition must be fulfilled. The C. B.] MACANDREW AND ANOTHER v. CHAPPLE AND OTHERS. voyage is from Newcastle to Alexandria, and the ERLE, C.J.-In this case the charterer has not performed his part of the contract, and he contends that he has a defence to this action on the ground that there is a condition precedent on the part of the plt. which has been broken, and it is clear that a charter-party may contain that which is a stipulation, and binds as an agreement for the breach of which an action will lie, or that which is a condition precedent or subsequent, and which, if broken, will entitle the other party to put an end to the contract. The question if this is a stipulation for the breach of which an action merely will lie, or if it is a condition for the breach of which the party may say that he is exonerated, depends on the construction of the instrument. The charter-party says that the ship Ephesus being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed (on being ready), having liberty to take an outward cargo for owners' benefit direct, or on the way, proceed to Alexandria ;" and that part of the charter-party is relied on by the deft. as being a condition precedent on the breach of which the charterer would be entitled to throw up the charter. The ship went to London, and then on to Constantinople, and that is a breach of the condition if it was a condition. I think it is perfectly clear that this is a stipulation only, and not a condition that the vessel shall not deviate ever so little out of her course. I agree that if it were a condition the charterer would be exonerated, but I do not think that it is a condition. That being the construction of the charter-party, it is useless to go into the authorities. There is nothing to show that the object of the voyage was frustrated in this case. My judgment is founded on the construction of the contract, and this stipulation is merely an agreement to go direct to Alexandria, and if the shipowner omits to do that, it is a breach of the agreement for which an action will lie, but not a condition precedent. [C. P. action for not loading a cargo; but a mere deviation falling short of that gives a right of action for damages, but does not defeat the charter-party to the extent of being an answer to an action for not loading. Boone v. Eyre, 1 H. Bl. 273 (n.); Ritchie v. Atkinson, 10 East, 295; and Davidson v. Gwynne, 12 East, 381, are cases which are not new, but cases in which the principle laid down in Boone v. Eyre has been applied. It is necessary to observe that it is impossible to read this case without seeing that the vessel was not engaged for a particular cargo, but that it was a speculation by the defts., and that is quite sufficient to justify the proposition stated that freights had been falling for some time, and that a few pounds difference in the freight is all the damage the late arrival caused to the charterer. Therefore, I think that this is not a case in which the charterers can resist an action for not loading. BYLES, J.—I am of the same opinion. The principle is laid down by Erle C. J., in Seeger v. Duthie, 8 C. B. N. S. at p. 64, that "the construction to be put upon contracts of this sort depends upon the intention of the parties, to be gathered from the language of the individual instrument. Whether particular stipulations are to be conditions precedent or not must in all cases solely depend upon that intention as it is to be gathered from the instrument itself;' and that is the result of all the cases here is the ordinary and express stipulation that the ship shall proceed with all convenient speed to Alexandria. The condition, if condition it be, is not express but implied, and we are to see if construing it as a condition would cause inconvenience. If we decided that it was a condition it would defeat if not a majority, certainly a very large number of charterparties, and the law is clear that it is a stipulation and not a condition precedent. The implied stipulation is not to deviate unless permitted, and in this case the ship went to Constantinople, which is out of the permitted limits. In the case cited by Mr. Mellish (Clipsham v. Vertue) there was a delay of six weeks, but still it was held not to be a deviation. Here the vessel merely went to London for her trial trip, and as to the vessel going to Constantinople, that is merely an actionable breach, and does not exonerate the defts. from performing his part of the contract. M. SMITH, J.—I am of the same opinion. There is only one question as to the construction of this charter: whether the stipulation that the vessel shall go to Constantinople with all convenient speed -that is, with no more delay than is necessary for taking out a cargo-is a condition precedent? I am of opinion that it is not a condition precedent, but merely a stipulation. If the deft. has sustained damage, he can recover in an action on the contract; and that being so, the question as to what would be the consequence if the whole object of the charterer had been frustrated does not arise; therefore I think that our judgment should be for the plts. Judgment for the plts. Attorneys for the plts., Field, Roscoe, and Co. COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristers-at-Law. Monday, April 30, 1866. CLARKE v. BURN. Contract to load vessels-Action for breach of-Plea, refusal of plt. to pay for previous loadings-Condition precedent-Pleading. Declaration, that it was agreed that plt. should purchase of deft. 30,000 tons of coal, and that deft. should ship the same on board certain vessels for a period of six months from 1st Aug., and should load each vessel within twenty-four hours after notice that the said vessel was ready to be loaded at the T. docks. Averment, that all conditions were performed necessary, &c., yet deft. broke the said agreement in this, that he did not load a certain screw steamer as agreed within twenty-four hours after the same was ready; and afterwards further broke the said agreement, and absolutely refused to perform the same, or to ship any more goods at all for plt. as agreed. Plea to the second breach, that before deft. absolutely refused as alleged, plt. absolutely refused to pay, according to the said agreement, for certain coals that had theretofore been shipped for and delivered by deft. to vlt., although requested by deft. to pay for the same according to the said agreement, and although everything had happened and been done necessary to entitle deft. to such payment, wherefore deft. refused to load until such payment was made, as he lawfully might: Held on demurrer to be a bad plea. Declaration: That it was agreed by plt. and deft. that plt. should purchase of deft, certain goods, to wit, 30,000 tons of coal, and that deft. should ship the same ou board of certain vessels from 1st Aug 1865, and for a period of six months from that day, and that deft, should load every such vessel within twenty-four hours after the said vessel was ready to be loaded at the Tyne docks, the deft having due notice thereof, and that all conditions, &c. necessary to entitle plt. to have the said agreement performed by the deft, yet deft. broke the agreement in this, that he did not load a certain screw steamer, called the S. M. Strachan and other screw steamers, as well as a certain sailing vessel called the Columbine as agreed, within twenty-four hours after the said sailing vessel and steamers were respectively ready to be loaded; and afterwards further broke the said agreement, and wholly and absolutely refused to perform or to carry out the same or to ship any more goods at all for plt. as agreed, whereby plt. &c. (allegation of damage). Claim 30007. Plea 6, to the second breach : That before deft. absolutely refused as therein alleged, plt. absolutely refused to pay, according to the said agreement, for certain coals that had theretofore been shipped for and delivered by deft. to plt., although requested by deft. to pay for the same according to the said agreement, and although everything had happened and been done necessary to entitle deft. to such payment, wherefore deft. refused to load until such payment was made, as he lawfully might. Demurrer and joinder in demurrer to said plea. Plt.'s points:-1. That it does not appear upon the record that payment in full for the coals as delivered is a condition precedent to the plt.'s right to have the contract performed by deft. 2. That deft. should have set out the terms of the contract relating to payment for the coals to be delivered by deft. to plt. 3. The nonpayment by plt. for certain coals theretofore delivered by deft. to plt. does not justify deft.'s refusal to perform the contract on his part. Deft.'s points:-That it sufficiently appears upon the pleadings that the payment for coal shipped for and delivered to plt. was a condition precedent to plt.'s right to insist upon a further shipment, and that, under the circumstances stated in the plea, the deft. was justified in refusing to ship any more coal till the coal already delivered had been paid for. [Ex. Gates, for plt., in support of the demurrer to the plea. There was nothing to show that it went to the whole contract, and nothing that might not be compensated in damages. It did not appear on the record how plt. was to pay for these goods, nor that payment on delivery of each shipload was a condition precedent to the performance of deft.'s contract. If deft. relied on any breach of contract by plt. as a justification of his own misconduct, he should have set it out. In note 3 to Pordage v. Cole, 1 Wms. Saund. 320 c., it was said: "Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the deft. without averring performance in the declaration ;" and the well-known case of Boon v. Eyre, 1 H. Bl. 273, note (a); 2 Black. Rep. 1312, was there referred to. [MARTIN, B.-The declaration states the contract to load certain vessels, and then goes on to aver a breach in not loading a certain steamer; and that is all right. It then proceeds: "and deft. afterwards further broke the said agreement, and wholly refused all for plt. as agreed." Have you authority that to perform the same, or to ship any more goods at that is a good breach ?] Hochster v. Delatour, 2 El. & B. 678; 22 L. J. 453, Xenos v. The Danube and Black Sea Railway, de C. P., 13 C. B., N. S., 825; 31 L. J. 284, C. P., were to that effect. Withers v. Reynolds, 2 B. & Ad 832; 1 L. J., N. S., 30, K. B., was also in plt.'s favour. There was nothing in the present decla ration to show each shipload was to be paid for on delivery, and plt. was clearly within the judgment of Patteson, J. in that case. He cited also Davidson v. Gwynne, 1 East, 381. Beresford contra, for deft., supported the plea and contended it was a good plea to the breach to which it was pleaded. The declaration said nothing about how the goods were to be paid for, and it must, therefore, be taken that each load was to be paid for on delivery. Where a large quantity of goods had to be delivered, extending over a long period of time, the vendor, in the absence of express agree ment to the contrary, was entitled to be paid on each delivery, and that was the proposition" established by Withers v. Reynolds, cited contra. The plea amounted to a traverse of ready and willing to deliver. MARTIN, B.-I am of opinion that this is a bad plea. It does not, in my opinion, sufficiently state the circumstances. I can conceive circumstances existing which would justify a man in refusing to go on, but here we cannot say what the contract really is. I do not think it is within Withers v. Reynolds, and that case was not put upon payment of past loads. Our judgment must be for the plt. BRAMWELL, B.-I am of the same opinion, and on general principle also I think this a bad plea. As my brother Martin has said, it is not within Withers v. Reynolds. In my opinion Mr. Beresford's view is holding that each delivery is to be paid for at the not law. Now, I can see no inconvenience in not moment, but much the other way. It seems to me to be clearly a bad plea. POLLOCK, C. B. concurred. Judgment for the plt. Attorneys for plt., Wilkins and Blyth, 10, St. Swithin's-lane. Attorneys for deft., Shum and Crossman, 3, King'sroad, Bedford-row. COURT OF ADMIRALTY. Tuesday, July 25, 1865. (Before the Right Hon. Dr. LuSHINGTON.) Liability of ship for deferred delivery of cargo- The master of a ship, whilst waiting for cargo, omitted to take in sufficient stores and provisions for his voyage, and whilst subsequently taking in such provisions and stores the frost set in, and the ship was frozen in port and detained from the beginning of October until the breaking up of the ice in the ensuing year: Held, that the owners of the ship were responsible to the owners of the cargo for any loss accruing from such detention; it being, by maritime law, the duty of the master to convey the cargo to its port of delivery with all expedition; and if by neglecting to avail himself of all fair opportunity the voyage is delayed and damage accrues to the owners of the cargo, the owners of the ship are liable to make good the sum. Deane, Q. C. and Murphy for plt. Brett, Q. C. and E. C. Clarkson for deft. Dr. LUSHINGTON gave judgment in this case, which was an action brought on behalf of Messrs. Fontaines and Wilson, merchants of London, as consignees of 584 barrels of tar, part of the cargo of the brig Wilhelm, against the owners and master of that ship, to recover for the loss arising from the non-delivery of the tar. The petition set forth that by a charter-party dated in London the 1st April 1862, between the master of the brig and the plts., the brig, then in the Baltic, proceeded to Archangel on the 11th Aug., and on the 16th the master gave notice to the pits.' agent that he was ready to commence loading; that a full cargo was ready to be shipped immediately, but that the shipment thereof, through the negligence or default of the master, was not completed until the 19th Sept., when the brig got under weigh and proceeded down the river on her intended voyage; that the master, instead of putting to sea, as he could and ought to have done, shortly after leaving Archangel, brought the brig up off Modon Kerlde, where he remained without making any effort to prosecute his voyage, although the navigation was perfectly open and free from obstruction, until the middle of October, when the river was closed by ice, and the brig, with the plts.' cargo on board, was detained there until the breaking up of the ice in the following spring. It was then alleged that, if due diligence had been used by the master in loading the brig and proceeding on his voyage, the brig, with the plts.' cargo on board, would have arrived in England before the beginning of Nov. 1862; but that, in consequence of the negligence, mismanagement, or other default on the part of the master, the brig did not reach England until the 18th July 1863; that such negligence, mismanagement, and default were a breach of duty and a breach of contract on the part of the master, and by reason of such breach of duty and of contract the plts. had sustained considerable loss. The answer for the defts. pleaded that, by a charter-party dated the 1st April 1862, it was mutually agreed between the master of the above-named brig Wilhelm, then in the Baltic with leave to take a cargo from Memel to Waterford, and the plts., that the brig, being tight, staunch, strong, and every way fitted for the voyage, should, with all convenient speed, sail and proceed to Archangel, or as near thereunto as she [ADM. might safely get, and there load from the factors of the plts. a full and complete cargo of tar in barrels, and about 1000 mats; ship to be provided with a deck cargo of tar which the plts. bound themselves to send or cause to be sent alongside the vessel at her port or place of loading aforesaid, and to be taken from alongside the vessel at her place or port of discharge free of expense to the master, and being so loaded should proceed therewith to Bristol, London, Newcastle-on-Tyne, Sunderland, or Hartlepool, as ordered on signing bills of lading, or so near thereunto as she might safely get (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatsoever nature and kind soever, during the said voyage, always excepted), and by the said charter-party it was agreed that twentyeight running days should be allowed to the plts. for loading the ship and discharging; that the Wilhelm, after completing her voyage from Memel to Waterford with all convenient speed, sailed and proceeded to Archangel, where she arrived on the 11th Aug. 1862, but was not able to obtain a berth whereat to discharge her ballast until the 13th; that on the 14th and 15th the ballast of the Wilhelm was discharged, and on the 16th the Wilhelm was ready to take in cargo, and her master on that day gave notice thereof to the agents of the plts. at Archangel, and made the necessary arrangements with the view of taking in her cargo; that the plts. neglected to furnish the cargo of the Wilhelm in accordance with the aforesaid charterparty, and notwithstanding the requests and representations of the master, delayed furnishing the cargo, and in consequence of such neglect and failure, and not through any negligence or default of the master, the shipment of the cargo was not completed until the 18th Sept. following; that on the 19th the Wilhelm left Archangel and proceeded to Modosko Roads for the purpose of proceeding over the bar, but owing to strong winds and the shallowness of the water on the bar, the Wilhelm was unable to pass over the bar, and she remained detained by strong winds and bad weather until the 8th Oct., when the Wilhelm, requiring provisions before proceeding to sea, was taken to Lupomoko Roads, and her master proceeded to Sollenburgh to obtain such provisions, and on the next day the ice set in, and the Wilhelm was taken to Lupomoko harbour, and although every endeavour was made to get her to sea, she was unable to proceed to sca, and became and remained frozen up, and was unable to reach England until July 1863. It was further pleaded that the Wilhelm was prevented by the dangers and accidents of the seas, rivers, and navigation, and by the negligence and default of the plts., from proceeding to sea before she became so frozen up, and that the master was not guilty of any breach of duty or breach of contract. The merits of the case were in a very narrow compass. As regarded the plts. the court think that the lapse of four days after the running days could be imputed to them as blame, or for the recovery of damages if otherwise entitled. As regarded the defts., it is satisfactorily shown on the contrary, that having got into the Modosko Roads on Sept. 22nd, they were unable to pass the bar from that day to Oct. 8th. After the vessel had been taken to Lupomoko harbour, it was impracticable for the vessel to proceed to sea. It was equally clear that, on the 8th or 9th Oct., if the Wilhelm had remained in the Modosko Roads, she might have crossed the bar and proceeded on her voyage. The question for the decision of the court was whether the alleged want of provisions which prevented the master's departure from the Modosko Roads did not amount to such as is contemplated by the Admiralty Court Act 1861, and ADM.] THE THOMAS POWELL v. THE CUBA. gave the plts. a just right of action. It was the duty of the master to convey the cargo to the port of delivery with all due diligence and expedition, and if, by unreasonable delay or neglect to avail himself of the means in his power, the voyage was delayed and damage accrued to the consignees of the cargo, the owners were responsible. Amongst the duties to be performed by the master, the due provisioning his crew was one of the most apparent and most indispensable. This duty was especially stringent in a case like the present-of a voyage from a northern port at a late period of the year, where the opportunities of getting out into the open sea were necessarily rare, and the loss of an opportunity might lead to the detention of a vessel and her cargo for a whole winter. It was clear that the interests of commerce strictly regarded obedience to these rules, for upon the due arrival of the cargo might entirely depend the success of the adventure. It was true, it might be said in this case that it was the interest of the master to complete his voyage with all celerity. Such assertion might be true, but it was no answer to the complaint, if proved, for it only showed what was of frequent occurrence, that even self-interest would not insure due diligence. If the master wanted provisions he was most culpable in having neglected to have a proper supply. If the provisions required were merely fresh provisions, articles not of necessity but of comfort, for the purpose of obtaining them the master was not justified in quitting the Modosko Roads. The Court was of opinion that the delay in prosecuting this voyage, and consequent loss to the plts., was to be attributed to the negligence or want of due diligence on the part of the master, and that, consequently, the plts. were entitled to a decree for the damage, with costs. Saturday, Aug. 5, 1865. (Before the Right Hon. Dr. LuSHINGTON.) In order to constitute an inevitable accident it is necessary that the accident should not have been capable of being prevented by ordinary skill and diligence-not extraordinary skill or extraordinary diligence by that degree of diligence and skill which is generally to be found in persons who properly discharge their duty. Milward, Q. C. and E. C. Clarkson for the Thomas Powell, and Brett, Q. C. and Vernon Lushington for the Cuba. Dr. LUSHINGTON gave judgment in this case, which was an action brought by the screw steamship Thomas Powell, 401 tons, against the Cunard company's steamship Cuba, 1534 tons, to obtain compensation for the loss arising from the two ships coming into collision in the river Mersey about half-past seven p.m. of the 19th Feb. last. The Thomas Powell stated the wind as N.N.W., and the weather as blowing a gale, and clear but dark. The Cuba represented the wind as N., and the weather a gale. The case for the Thomas Powell was, that on the 17th Feb. she had arrived at Liverpool with a cargo of coal, and proceeded into the Huskisson Dock to discharge such cargo into a steamship called the City of Baltimore, which was then in that dock; that in the afternoon of the same day the City of B ltimore left the Huskisson Dock and proceeded into the river Mersey, and there brought up, and that the Thomas Powell, which had discharged a part only of her cargo, followed the City of Baltimore, and made fast alongside her and continued to discharge her cargo into the City of Baltimore [ADM. until the afternoon of the following day, 18th Feb., when, in consequence of the weather, she was compelled to cast off and steam away; that at the time and on the day in question the Thomas Powell was lying at anchor in the river Mersey in a proper berth between Seacombe and Egremont; that the tide was ebb, and of the force of about six knots an hour, and that the Thomas Powell had a bright globular light on her foremast, and another on her mizen-boom, both of which were burning brightly, and a proper watch was being kept on board her; that in this state of things the Cuba, which had come in from sea, and had passed up the Mersey above the Thomas Powell, owing to the negligence or want of skill of her owners or those on board her, came into collision, and with her stem carried away the bowsprit of the Thomas Powell, and then fell alongside her on her port side, and did her a great deal of damage, and remained in contact with her until about eight p.m., when she went clear. It was then alleged that the helm of the Thomas Powell was ported before the collision, in order, if possible, to avoid it; that the collision was wholly the default of the defts. or their servants, and that it was not in any way occasioned by the Thomas Powell or those on board her. The defence for the Cuba was, that on the day in question she was on her homeward voyage from New York with mails and passengers; was off the port of Liverpool, but that, in consequence of the heavy weather, no pilot was able to board her until off Waterloo, in the Crosby Channel, when Thomas Lewis, a duly licensed pilot, succeeded in boarding her, and assumed the command; that about seven o'clock the Cuba was brought to an anchor with her best bower and seventy-five fathoms of chain, in about mid-river, off Seacombe, as it was not practicable for the vessel to proceed to her usual anchorage higher up the river; that the sea was so heavy that the tender could not come alongside to take the mails; that the tide was about two hours ebb, and running at the rate of five knots an hour; that the berth so taken up by the Cuba was a perfectly clear berth, and in particular was well clear of the steamer Thomas Powell, which had been observed whilst coming to anchorage, and which lay a considerable distance to the north-west of the Cuba; that the Cuba carried the Admiralty regulation lights duly exhibited and brightly burning, and also a white light on the signal staff, her steam was kept up, a good look-out was being maintained, and the pilot continued on deck and in charge; that in consequence of the heavy gale blowing against the tide, the Cuba would not ride quietly to her anchor, and in about half an hour from the time of anchoring broke her shear, and drove to the east side of the river, dragging her anchor, and approached the Waterloo-pier; that in doing so the Thomas Powell was observed following the Cuba across the river, and about 7.30, having no steam up, she drove into the Cuba with her stem, striking the Cuba's stern; that by this collision, and in clearing, the Thoms Powell suffered some damage; that the Cuba sustained little or no damage by the collision, and afterwards steered across the river and dropped a second anchor, and the next morning proceeded to her proper' anchorage. It was then alleged that the collision was not caused by any negligence of those on board the Cuba, but was an inevitable accident; that if the collision was in any degree caused by those on board the Cuba, it was occasioned by the pilot, who was employed by compulsion of law, and that the collision was caused by the negligence of those on board the Thomas Powell. On these pleas the first thing to be considered was the averment made on behalf of the Cuba, that the collision was an inevitable accident. To constitute an inevitable accident it was necessary that the occurrence should |