THE DAPPER v. THE LADY NORMANBY.

for Newcastle, and the Dupper was sailing free, bound for Ipswich; and, according to the case made against the Lady Normanby, it is this, that the two other vessels that were in company with her passed straight on without any difficulty, and went past this vessel and proceeded on their voyage, but that she unnecessarily ported her helm in order to pass a vessel which was ahead about seventy fathoms off the Dapper. I cannot understand upon what possible view of this case it is consistent with probability that a vessel close-hauled on the port tack should, in order to pass another vessel which, according to the case made, there was no reason to suppose she would come in contact with, port her helm, and endeavour to cross the bows of that vessel, except it is that she would lose her way, and have to make it up afterwards. The case made by the Lady Normanby against the Dapper is, that she was sailing on a south-east course, and when there was no probability of conflict she without rhyme or reason ported her helm, and so brought about the collision.

The Court was assisted by Captain Farrer and Captain Close, of the Trinity-house.

Wednesday, Jan. 31, 1866.

(Before the Right Hon. Dr. LuSHINGTON.)
THE ALLAN v. THE FLORA.

Rules of the road-Admiralty regulations-General
construction of.

[ADM.

The 19th article of the Admiralty Regulations of the rules of the road, which directs that "in obeying and construing all the other and previous regulations, due regard is to be had to all dangers of navigation, and to any special circumstances existing in any particular case, rendering a departure from such rules necessary, in order to avoid immediate danger," does not prescribe any specific course to be adopted or pursued, since such prescription would necessarily involve on many occa- | sions the destruction of the very ships it was framed to

sprit, and being entangled with the wreck thereof swung round with her starboard bow into the starboard main chains of the Allan, and there lay beating for nearly two hours, doing a great deal of damage; after which the Allan was drawn clear astern by setting her main and mizen topsails, the top-gallant sails braced all aback, all the canvas having been taken in on her foremast directly after the collision to save such mast from being carried away; that as soon as the two vessels were clear of each other the crew of the Allan, as she still lay aback, proceeded to secure her foremast, the headstays of which were all adrift, and while engaged in doing so the Flora ran down towards the Allan, and owing to the negligence and mismanagement of those on board her caught the port bow and anchor of the Allan with her port mainrigging, and did further serious damage to the Allan, and was finally got clear by cutting away some of her said port main rigging; that the collision and the damages arising therefrom, were occasioned by the neglect and improper navigation of the Flora, and no blame in respect thereto is attributable to any of those on board the Allan. The defence of the Flora, on whose behalf a cross-action was brought, set forth that she was close-hauled on the starboard tack, heading E.S.E., carrying her regulation lights brightly burning; that she was taken aback, and having come round on the port tack she proceeded on that tack, heading W.S.W., for some time, to get sufficient way on the barque to tack her; that the barque being ready to tack, and the sea appearing clear for that purpose, the Flora was put in stays, all hands being on deck; whilst in stays a light was suddenly seen by Antonio de Gonlisolo, the look-out man, on the barque's starboard side, and immediately afterwards the barque was struck on her starboard quarter with great violence by the stem of the Ala coming up channel, and on board of which no regulation lights could be seen; that the two vessels fell alongside, head and stem, and remained in contact for nearly three hours; that the vessels at last got clear, and the Allan dropped clear astern for some distance. The Flora having lost nearly all her sails, lay quite powerless. It was then alleged that the advanced and came with great violence into the Allan then gathered way, and by bad management port side of the Flora, and did much further damage; that after the vessels finally cleared, the Flora put into Plymouth; that the collisions were both caused by the improper navigation of the Allan, and by the Dr. LUSHINGTON gave judgment in this case, negligence of those on board her, and were in no which was a suit instituted by the British ship degree the result of any neglect on the part of the Allan, 924 tons register, from the Gulf of St. Law- Flora. The questions for our consideration are, rence to London, with a cargo of deals, against the which of these two vessels was to blame for the Spanish barque Flora, 320 tons register, from collisions which have occurred, or whether they Havannah to Hamburg, with a cargo of tobacco, were both to blame on the same account. It appears for a loss resulting from a collision between them that the Flora intended to go into stays, and was, about fourteen miles south of the Eddystone Light- according to her own account, in stays. The ques house, on the morning of the 16th Nov. last. The tion will be, whether she took those measures which Allan represented that the weather was clear, with were proper to be taken preliminary to going into light clouds and stars visible, and a strong westerly stays, and whether she did that after having taken swell. The Flora stated the night as dark. The a proper survey of the state of the sea immediately case for the Allan was, that the tide being flood surrounding her, so as not to run the risk of running half-knot, she was under all plain sail, close- a collision in case of a vessel being near her. hauled on the starboard tack, steering E. by S. S. According to the Flora's own statement, she making four knots, carrying her proper lights, when had one person on the watch at the time in the green light of the Flora was seen, distant about question, and, according to her own. statea mile, and about three points on her lee bow; that ment, from the admitted facts, and according to she (the Allan) was kept as clear to the wind as her own plea, the Allan was not seen coming, possible, and as the Flora, which was on the port although she was a large vessel. Why did she not tack, continued to approach the Allan without any see the Allan? Assuming for the moment the Allen apparent change in her course, those on board the Allan carried lights, why did she not see those lights? hailed the Flora loudly and repeatedly, notwithstand- There was nothing in the state of the weather to ing which the Flora ran aftermost hawse of the Allan, prevent her seeing them, because, taking the whole and with the fore shroud of her starboard main of the evidence together, it is clear that it was an rigging carried away the Allan's jibboom and bow-ordinary night, and you might see a vessel carrying

preserve.

Brett, Q. C. and E. C. Clarkson appeared for the

Allan.

Millward, Q. C. and Vernon Lushington for the

Flora.

ADM.]

THE UNITED Kingdom, the HERCULES, THE RESOLUTE, &c. v. THE SYRIAN.

[ADM.

Aspinall, Q. C. and Cohen appeared for the United Kingdom.

The Queen's Advocate and E. C. Clarkson appeared for the Hercules.

Deane, Q. C. and Butt appeared for the Resolute and the Relief.

Milward, Q. C. and V. Lushington appeared for the

lights at the distance of a mile, and she does not
see them. Provided she could have seen them at
that distance, I apprehend she would have avoided,
or might have avoided, by adopting proper
measures, the collision altogether; that is to say,
she probably need not have gone into stays in the
immediate neighbourhood of a vessel that was
coming down upon her. What must be the reasons,
and the only reasons, why the lights were not seen
in due time? Either there was an insufficient look-Syrian.
out on board the Flora, or there were no lights burning
brightly on board the Allan. There are three wit-
nesses to whom it would be unfair to impute perjury
from the Allan, who state that the lights were burning
at the time, and there is nothing to negative that on
the other side. It was said by them that the lights
were not seen, and under the circumstances the
balance of evidence is in favour of the Allan, that
she had her lights burning at the time. If the
Flora ought to have seen the Allan in due time, and
if she had so seen her, she might and ought to have
taken measures to avoid the collision; there can be
no other conclusion than that the Flora was to blame.
Then it may be asked, was or was not the Allan to
blame for the course she pursued? It is abundantly
clear that, in the first instance, she did that which
was right, because she was on the starboard tack
close-hauled, and according to the 12th Admiralty
regulation she was bound to have kept her course.
She did keep her course; and was she to blame
in not taking any other measure to avoid a col-
lision? It may be that the circumstances are
such in a case like this that a departure from
the strict rule of road as laid down in the Admi-
ralty regulations is justified, and the question
before the court as far as the Allan is concerned is,
whether there was such a justification for departure
from the rule in the present case. I have no doubt,
looking at the 19th Admiralty regulation, that if
the circumstances of the case were such that there
was immediate danger, perfectly clear to the appre-
hension of those present, the Allan would have been
justified in departing from the strict letter of the
12th rule. The 19th rule does not prescribe any
particular measures that should be adopted in depart-
ing from the strict terms of any of the previous
regulations that it governs, but it merely states that
in construing and obeying these regulations, as far
as possible, you may take into consideration urgent
attendant circumstances. I believe that is common
sense, for if any rule were laid down by Parliament
or any other authority that could never be departed
from in certain states of circumstances, such a rule
would necessarily involve, on many occasions, the
destruction of those ships, which it was intended to
preserve. Upon a careful consideration of the evi-
dence on both sides, the Court is of opinion that the
Flora was solely to blame, and there must be a
decree to that effect.

Dr. LUSHINGTON gave judgment in this case, which was an action for salvage compensation against the screw steamship Syrian, of 1500 tons, from Alexandria to Liverpool, with cotton, by the steamships United Kingdom, Hercules, Resolute, and Relief, for services rendered to the steamer at the entrance of the Mersey on the 24th Nov. 1865. From the evidence in the case it appeared that the Syrian, on-coming into the Mersey, grounded on the Zebra Flats, the sea being at the time very heavy, and the wind W.N.W. After remaining for some time in this position, and failing to get off, she made signals for assistance. These eventually were answered by the United Kingdom, which, coming up, made fast to the Syrian, and assisted in partly removing her from her position on the bank. The steam-tug Hercules then came up, and the United Kingdom and the Hercules succeeded in getting the Syrian off, but she afterwards touched on the Little Burbo Bank. The steamtug Resolute then came up, and the three tugs, by their united efforts, got the steamer into the channel; the steam-tug Relief then came up, and it was alleged that by the assistance she gave, she in reality rescued, or prevented the steamer from getting on the Taylor Bank until the other tugs helped to tow her up the Mersey to the Birkenhead Docks. The Syrian, however, being a long ship, could not be taken into the lock leading from the low-water basin into the Birkenhead Docks, and she was therefore taken by the Resolute and the Relief to the Morpeth Dock, where she was moored in safety. It was alleged in the evidence on the part of the salvors that some of the crew of the Syrian were so alarmed for their safety at the time the steamer was on the Zebra Flats, that they made preparation for effecting their escape by lowering a boat, and that this boat, just when the United Kingdom arrived, was capsized, those in her having previously got back to their ship. It was also alleged that the Syrian's steering apparatus was out of order, and that her engines were defective in action. Great labour and exertion were attendant on the performance of the services of the tugs, and damage arose to the tugs in rendering such services, from the destruction of their hawsers and other gear. The pilot of the Syrian was examined on behalf of the United Kingdom to show the extent of the services rendered by that vessel; and the damage alleged to have been sustained by the tug in giving assistance was admitted on the part of the steamer, and the representations of the tug's crew were in this respect taken as true. The value of the property salved was 120,000 On the part of the owners of the Syrian, it was admitted that a salvage service of great merit had been rendered, and for but it was contended that many of the facts which the salvors should be liberally remunerated; alleged by the tugs as to the extent of the services rendered by them were greatly exaggerated. All that had to be considered was the fair result of the evidence of the pilot, the extent of the danger actually incurred, and the extent of the services actually rendered by each of the tugs employed; and these considerations would enable the court to arrive at something like an equitable conclusion as to the quantum of salvage to be given for the whole

ADM.]

THE UNA V. THE THOMAS LEA.

[ADM.

C

cordia.

The Court was assisted by Capt. Pigott and Capt. Webb, of the Trinity-house.

Tuesday, July 4, 1866.

(Before the Right Hon. Dr. LusHINGTON.) THE UNA V. THE THOMAS LEA. Steamers and sailing ships Collision Admiralty regulations-Construction of the 15th, 18th, and 19th

articles.

ship and the other a steamship, are proceeding in such directions as to involve risk of collision, the steamship should keep out of the way of the sailing ship. Regulation 18: Where, by the above rule, one of two ships is to keep out of the way, the other shall keep her course, subject to the qualifications contained in the following article, viz.:

Regulation 19: In obeying and construing the above rules due regard must be had to all the dangers of navigation, and due regard must also be had to any special circumstances that may exist in any particular case rendering a departure from such rules necessary in order to avoid immediate danger.

Case of the "sailing ship” (a) in default.

Deane, Q. C. and Vernon Lushington appeared for the Una.

The Queen's Adcocate and E. C. Clarkson for the Thomas Lea.

Steering Rules and Regulations; because, if they | I must therefore pronounce against the Conwere so meeting, then the directions are, that the helms of both ought to be put to port, so that each may pass on the port side of the other, and it is clear that the helm of one was not put to port. There are exceptions to this rule, which are contained in the 19th article, which states that "due regard must be had to any special circumstances which may exist in any particular case, rendering a departure from the rule necessary "-mark the next words—" in order to avoid immediate danger." The next point is, whether there existed any special circumstances to justify a departure from the 13th article. What immediate danger there was on the present occasion was confined to the fact alleged, that there was a barge in the way, and, if the Concordia had star-Regulation 15:-If two ships, one of which is a sailing boarded, she would have run over it, and probably have caused destruction of life as well as property. I feel some difficulty upon this point, for I am unable to trace through the evidence what became of that barge. If the case was that the Concordia had passed the barge and got ahead of it, then of course there would be no immediate danger. If it were put to me whether there was any immediate danger of coming into contact with that particular barge, I should say there is not evidence to satisfy my mind of the fact. The evidence of Mr. James, the harbour-master of London, was, that there was quite a cordon of barges round, so that neither could the Esther continue her course straight down the river in the direction she was going, nor could the Concordia move because of the vessels round her. Respecting the vessels round the Concordia there is not much evidence, except that there was ample evidence of there being vessels to the south. As to the road from where the Esther was down to where the Concordia was when she starboarded, the other evidence is directly opposed to that of Mr. James. There is abundant evidence to the effect that that part of the way was clear, and that not only might the Esther have pursued her course, but that the Concordia might also have gone on. It appears to be pretty well agreed that the distance between the Esther and the Concordia when the Esther was first perceived from the Concordia was about a quarter of a mile, and the question is whether she had then starboarded her helm. Though it is a matter I submit to you which is exceedingly in doubt, yet, as I apprehend, it was after she had starboarded that she saw the Esther. If the Esther was aware at the time that the Concordia was merely dead in the water, and utterly unable to help herself, and if she was capable, and had the power of seeing and observing what the Concordia was doing, and the position she was in, then, notwithstanding the rule to port, and though the vessels might be end on, yet she would not be justified in porting and running in upon the Concordia. The Concordia represents that she was not moving at all, or not perceptibly moving, and ought to have been treated almost as a vessel at anchor. Supposing these two ships were crossing so as to involve risk of collision within the meaning of the words of the 14th article, and the ship which had the other on her own starboard side should keep out of the way, what would then be the state of course until the hull of the steamer became visible, the case? The real is, question whether or not there and she appeared to be passing so close as to be was sufficient evidence to establish that there was dangerous, whereupon the helm of the Una was a chance of immediate danger so as to justify the ported a little, but that the steamship suddenly Concordia in departing from the regulation which starboarded her helm, and ran at full speed across prescribes that two vessels approaching each other the hawse of the brig, the stem and starboard bow nearly end on shall port when there is a risk of of which came violently in contact with the starcollision. It was stated for the Concordia that there board side of the steamship abaft her midships. were barges in the way which prevented her from whereby everything forward on the brig was carried complying with the statute. I am of opinion that away. The Thomas Lea, on whose part a crossthere is not sufficient evidence to establish im-action was brought, pleaded that the tide was about mediate danger so as to justify a violation of the rule; and after deliberation by the elder brethren of the Trinity-house, they have confirmed my opinion, and

Dr. LUSHINGTON gave judgment in this case, which came before the court on an action brought by the owners of the late brig Una, 246 tons, from London, in ballast for the Tyne, against the screw steamship Thomas Lea, 486 tons, from Newcastle, coal laden, for London, to recover for a total loss resulting from a collision between them in S.W. reach of the Swin; about a mile from the Middle Light, at a quarter past five p.m. on the 21st of last December. The wind was stated by both parties as being N.W. by N. For the brig, the weather was represented as fine and clear but dark, with a moderate breeze; and for the steamer, as dark and rather hazy, blowing a strong breeze. The case for the Una was, that the ebb tide was just commencing, and she was proceeding at the rate of about five knots, heading N.E. by N., close-hauled on the port tack, and carried her coloured lights fixed and screened as required by law, burning bright and clear, when the red and white lights of the steamer were observed by those on board her below the Middle Light vessel and about a point on her starboard bow, and distant about two miles; that she kept her course without any alteration, and the steamer, with her red and white lights alone visible, got clear on to the weather bow of the brig, which still kept her

(a) For a case of a steamship" being in default under these regulations, see "Maritime Law Cases, vol. 2, part 6,

p. 289.