respective duties of the two vessels at the time when they were approaching each other. But I have very great doubt as to what were the actual facts to which I must request your particular consideration. This is a collision between a vessel going down Channel and a Spanish steamer coming up. The state of the weather, according to all representations, is, that it is was a fine evening. The collision occurred about half-past seven. There is nothing in the state of the weather which requires particular observation, nor does it appear that there was any circumstance at all of any importance before the collision itself. I will now direct your attention to the conduct of the Star of Ceylon, the vessel that was going down the Channel. She was going down the Channel, as you have heard, at the rate of about six knots an hour, her course was westward, she had the wind from the eastward, and had the tide with her at the time. She had therefore every advantage; and, according to her own statement, which I must presume for the moment is true, she descried the steamer, the Velasquez, at a very considerable distance. We are so accustomed to hear distance variously described by witnesses on board ship, that I say nothing about the amount of the distance at which the steamer was seen, but she was seen from a very ample distance to enable the Star of Ceylon to do what she thought fit to do. Now these two vessels approach each other, and the first question in dispute is, did the steamer approach the Star of Ceylon on her starboard side or on her port side? I will assume for a moment that she approached her, according to the statement of the Star of Ceylon, on the port side. It appears, according to the evidence of her master, that the vessels approached each other in nearly opposite directions; then he says, observing the steamer's light to be a little on the port bow, from a point and a half to two points, he directed the person at the helm to keep the light on the port side. Now what did the master mean to say, or mean to be understood, by that direction? If it was, as has been contended, an instruction to alter his helm and to change his course, then undoubtedly the master of the vessel was to blame; but I have very great doubt whether that was the meaning of the master's orders to the man at the helm. I am inclined very much to think that the order to the man at the helm was to this effect "We are now meeting each other in such and such a direction. I presume the course of the steamer will continue unaltered. I mean our course to be unaltered. The present course of the steamer is on the port side, you keep that course "-and that, in point of fact, that order was in no way directing the course of the vessel to be altered. Then the facts really appear to be that these two vessels advanced, coming nearer one to the other, and that at a later period, when the master says he apprehended danger (and whether he properly apprehended danger or not is entirely for your decision), he first ported the helm, and then, at a short interval, finding the two vessels were approaching each other, and that there was danger of collision, he ordered the helm hard a-port, but that in consequence of the Velasquez having starboarded her helm, according to his statement, and altered her course by passing from the port side to the starboard side, in consequence of that alteration, the collision took place. If you believe that to be the state of the case, I think we can have no difficulty in finding the steamer to blame. Whether it was or was not the fault of the pilot is to be considered presently. I come now to the course of the steamer. She was under the care of a regular pilot, proceeding up Channel, the wind against her, the tide against her, under steam only, proceeding to the port of London, and she descried the Star of Ceylon at a comparatively short distance com

[PRIV. CO.

pared with the distance at which it appears the Star of Ceylon had seen her, the Velasquez. Now, the first question is, Was there an adequate look-out on board the Velasquez? There was a person on the look-out, no doubt, but I must say I have very great difficulty in understanding the evidence, as it is given, with regard to the efficiency of the lookout. The next question is, Was the Velasquez on the port side or on the starboard side? According to the rules, as you well know, she had a perfect right to go either on the port side or on the starboard side, but to keep out of the way of the sailing vessel. Are you of opinion that she was proceeding, we will say, nearly ahead, and that she did, at too late a period, starboard her helm; and that, in order to avoid the collision which subsequently occurred, the helm of the Star of Ceylon was ported? Then, with regard to the last question. If the steamer is to blame, did that blame attach on the pilot or on the ship? I can see no reason at the present moment to say (with the exception whether there was a good look-out or not) that any blame attached to the ship. I should be inclined to think, if the helm was put improperly to one side or the other by the order of the pilot, the blame would be exclusively that of the pilot. I ought to say one word about what you will find in the preliminary act with respect to the helm. It will be for you to consider whether there is any peculiarity in this helm (looking at the whole of the evidence) so great that the pilot was misled and mistaken when he gave the order, and that the effect of it was exactly the contrary to what he intended.

After consultation.-In this case we are of opinion that no blame attaches to the Star of Ceylon. We think that the whole blame attaches to the steamer, that blame attaches to the pilot, and that blame attaches to the crew who navigated, from the want of a good look-out.

The Velasquez now appealed.

Brett, Q. C. and Clarkson, for the app., contended that the collision was caused by the neglect of the Star of Ceylon to keep her course as she ought to have done; and if any one on board the Velasquez was to blame it was the pilot, for whose negligence the apps. were not liable.

Deane, Q. C. and Murphy, for the resps., contended that the Velasquez did not keep a proper look-out, and neglected to alter her course as she ought to have done, and so contributed to the accident, even though the pilot also was negligent.

Cur. adv. vult.

Sir W. ERLE.-This is an appeal on the part of the owners of the Spanish steamer, the Velasquez, against the sentence or decree of the High Court of Admiralty, which has pronounced that that vessel was in fault in running down the late barque, called the Star of Ceylon, and has condemned the apps. and their bail in the damages proceeded for, and costs of suit. The conflict of evidence is far less than generally occurs in cases of collision. The undisputed facts of the case are: that about half-past seven on the evening of the 11th Oct. last, the steamer, being in charge of a licensed pilot, was proceeding up Channel, steering north-east by north; whilst the barque was going down channel, heading south-west by south, and therefore on a course parallel to that of the steamer. The wind was east by south; each vessel was making about six knots an hour through the water; and the tide, which was against the steamer, was of course in favour of the barque. It is further admitted that at some time before the collision, the steamer starboarded her helm, or at least executed a manoeuvre which

PRIV. Co.]

had the effect which starboarding a helm of the ordinary construction produces; and that the barque ported her helm. The result was a collision in which the barque being struck on the port bow by the stem of the steamer was sunk, her crew happily escaping on board the steamer. The case of the barque is thus stated:-The mast-head light of the steamer was first seen, at the distance of between three and four miles nearly a head, but a little on the port bow of the barque; her red or port light was subsequently made out in the same direction: she continued to approach the barque on her port bow, and in such a direction as to involve danger of a collision unless one of the vessels ported; and as no alteration was made in her course when the two vessels were so near that it was dangerous for the barque to keep on her course, the helm of the latter was ported. Very shortly after this had been done, and the vessels would otherwise have passed clear of each other, the steamship was noticed to be making towards the barque, and as the only means of avoiding a collision, or lessening the effect thereof, the helm of the barque was put hard a-port; but almost immediately afterwards the steamer having shut in her red and opened her green light, ran stem on into the barque," &c. And the contention of the plts., the owners of the barque, was, that the collision was attributable solely to the carelessness, negligence, and want of skill of those on board and in charge of the said steamship, more especially in their having omitted, either from want of a good look-out or otherwise, to take within sufficient time the proper measures to keep clear of the barque. The defence on the part of the steamer raised the following case :-"The barque was first seen at the distance of about three quarters of a mile from, and being from two to three points on the starboard bow of, the steamer, and with no light then visible on board the latter. The steamer starboarded by order of the pilot, and her head went off to port, and she kept out of the way of the barque; but the latter improperly deviated from her course, under a porthelm, and exhibited a red light to those on board the steamer, and caused danger of collision; whereupon, by order of the pilot, the steamer hard a-starboarded and stopped her engines; but the barque nevertheless ran into, and with her port bow before the fore rigging struck the steamer on her stem and starboard bow." And the contention of the defts. was that the collision was caused by the negligent and improper navigation of the barque. Another and distinct ground of defence was, that if the collision was in any way occasioned by anybody on board the steamer, it was occasioned solely by the licensed pilot, whose orders in respect of her navigation were promptly and implicitly obeyed by her master and crew. In the circumstances stated it was the duty of the steamer to keep out of the way of the sailing vessel; and provided she did so effectually, she was at liberty to do it either by starboarding or by porting her helm. On the other hand, it was the duty of the barque to keep her course, and she could be excused for deviating from it only by showing that it was necessary to do so in order to avoid immediate danger. The learned Judge of the High Court of Admiralty, after considering the evidence, with the aid of the Trinity Masters, came to the conclusion that no blame attached to the barque; that the whole blame attached to the steamer; that blame attached to the pilot; but that blame also attached to the crew, by reason of the want of a good look-out. At the close of the argument for the apps. their Lordships intimated their opinion that no ground had been made for disturbing this judgment in so far as it found that as between the colliding vessels the steamer was solely in fault. The conclusions which they drew from the evidence were: that the

[PRIV. CO. vessels were meeting port side to port side; that the steamer took no steps to avoid the barque until the vessels were very near each other; and that in these circumstances the barque was justified in porting her helm when she did port it; whilst, on the other hand, the starboarding of the helm of the steamer when it took place was a dangerous and improper manoeuvre, and the immediate cause of the collision. Upon the question whether the court below was justified in holding that blame attached to the crew as well as to the pilot, their Lordships having heard both sides, reserved their judgment; and it is that question alone which we have now to determine. It has been established by a long course of decisions, both in the High Court of Admiralty and at this board, "that to entitle the owners of a ship which is under the charge of a licensed pilot to the benefit of the provision in the Act which exempts them from liability where the collision has been occasioned by the fault of the pilot, it lies upon them to prove that it was caused solely by his fault." To show to what extent this general burden lies upon the owners, it is sufficient to cite the case of the Schwalbe, 14 Moore, 241. There the cause of collision was an improper starboarding of the helm; an act of navigation presumably attributable to an order from the pilot. Yet the owners were held liable because they had failed to prove expressly that the order to starboard was given by the pilot. Lord Chelmsford, in delivering the judgment of this committee, said: "The owners therefore fail in the evidence necessary to transfer the responsibility from themselves; and without considering whether there was any negligent act or omission on the part of the crew of the Schwalbe, their Lordships think it sufficient to say that the owners have not succeeded in establishing that the collision is to be attributed solely (if at all) to the fault of the pilot." Again, the cases have clearly established that if, for any act or omission which contributed to the accident, the master or crew is too blame, then, although the pilot is also to blame, the owners are not exempted from liability. One of the strongest cases of this kind is that of the Christiana, 7 Moore, 160, for there every act of omission (and there were several of them) which contributed to the accident was an act for which the pilot was to blame; yet, inasmuch as for one of them, viz., the omission to strike and haul down certain yards and masts, the master was held to be also in fault, the owners were not exonerated from liability. On the other hand, such cases as the George, 4 Notes of Cases, 161, and the Atlas, 5 Notes of Cases, 50, seem to show, that if it be proved on the part of the owners that the pilot was in fault, and there is no sufficient proof that the master or crew were also in fault in any particular which contributed, or may have contributed, to the accident, the owners will have relieved themselves of the burden of proof which the law casts upon them. If, however, the evidence shows that there were acts of negligence on the part of the master and crew which may have contributed to the accident, as well as fault on the part of the pilot, the duty of showing that the former did not contribute in part to the accident seems to be involved in the obligation of the owners to prove that the cause causans of the collision was exclusively the fault of the pilot. The Iona, 4 Moo. N. S. 336, one of the most recent cases decided by this committee, seems to go the full length of this proposition. We have now to apply these principles to the present case. What are the facts deposed to by the pilot and crew of the Velasquez, who alone can speak to what passed on board that vessel? The pilot (p. 20) says that he was on the forepart of the bridge; that he first saw a sail on his starboard bow when the barque was about three-quarters of a mile off; that

he saw no light; that he ordered the helm to be starboarded; that the Velasquez obeyed her helm, and that shortly after he had given this order he saw the red light of the barque open. The look-out man (a Spaniard) says (p. 28), that he first saw the barque on the starboard bow, and distant about a mile, more or less; that he too saw no light; and that he reported the sale to the mate (also a Spaniard). And the mate who was on the bridge with the pilot says (at p. 25), that when the lookout man sang out in Spanish "A vessel on starboard" he looked towards the pilot, who was then looking to starboard with his glasses; that he (the witness) looking in the same direction, saw the barque about three-quarters of a mile off; that, thereupon, the pilot gave the signal for going to port; and after that was done he (the witness) saw the red light of the barque, having previously seen no light. Upon this evidence it is no doubt proved that the helm was starboarded by the order of the pilot given on his own observation of the barque, and not upon any communication to him of its position. On the other hand, it is to be observed that this evidence, if strictly true and correct, would raise some inference of a negligent lookout. For nothing is seen of the barque until she is within a mile of the steamer, and nothing even then is seen of her lights, although there is evidence in the cause, believed by the court below, that her lights were burning well; and the pilot admits that on that particular night (p. 24) a good light might have been seen three miles off. The evidence, however, cannot be taken to be wholly true or correct. For all these witnesses concur in representing the barque as on the starboard bow of the steamer; whereas their Lordships have found, upon the other evidence in the cause, that the vessels were approaching each other port side to port side. If the crew and the pilot have combined consciously to put forward a false case, all that can be said is that the owners have failed to show by trustworthy evidence that the fault was exclusively the fault of the pilot. But if it be assumed, as their Lordships would willingly assume, that the witnesses honestly mistook the position of the barque, the natural inference from that is, that if there had been a proper look-out, not only would the barque have been descried at a greater distance, but her true position would have been known. That it is the duty of the crew, by means of a sufficient look-out, to give to the pilot the earliest possible information of an approaching vessel, and accurately to describe her position, was the principle enforced in the case of the Iona; and in the present case it may reasonably be inferred that if the pilot had received earlier information of the barque, or had been told that she was on the port side of his own vessel, he would not have given the order to starboard at all, or would have given it at a time when on a starboard helm he could have gone clear of the barque. Their Lordships are therefore unable to say that there is error in the finding of the very learned judge of the Court of Admiralty, that blame attached to the crew as well as to the pilot of the Velasquez, and they will humbly recommend to Her Majesty that this appeal be dismissed with costs.

Decree affirmed with costs.
Apps.' proctors, Clarkson, Son, and Cooper.
Resps.' proctors, Deacon, Son, and Rogers.

[Ex.

COURT OF EXCHEQUER. Reported by H. LEIGH and E. LUMLEY, Esqrs., Barristersat-Law.

May 30 and June 4, 1867.

BURTON V. PINKERTON.

Ship and shipping-Contract of service as seaman on board-Ordinary voyage-Breach of contract by change of character of vessel-Illegal voyage—Action for breach-Remoteness of damage.

The plt. shipped as a seaman, at a certain rate of wages per month, on board the deft.'s vessel at London, under articles for a commercial voyage not to exceed twelve calendar months to Rio de Janeiro, and different ports in the Atlantic and Pacific, and to terminate by the plt.'s being brought back to some port in the United Kingdom or continent of Europe between the Elbe and Brest. On arriving at Rio, the deft. proposed to employ his vessel as a ship of war in the service of the Peruvian Government in the hostilities then being carried on between Peru and Spain. The plt. thereupon refused to proceed any farther with the voyage, on the ground that it was illegal, and exposed him to risks and dangers not contemplated by his agreement with the deft., and he accordingly left the ship, without leave, and went on shore at Rio, where he was arrested by the Peruvian authorities as a deserter from a Peruvian vessel of war, and committed to prison, where he remained some eight or ten days. Upon coming out of prison he found that the vessel had sailed away, and that his clothes and other articles belonging to him, which he had left on board, were gone. In an action to recover damages from the deft. for the breach of contract, the jury, by the direction of the learned Lord Chief Baron, found a verdict for the plt., and assessed the damages resulting from such breach under three heads, namely, first, 12. 10s. for the loss of wages which the plt. would have earned under the contract had it been continued; and secondly, 201. for the loss of the clothes, &c.; and thirdly, 301. for general damages for the imprisonment and otherwise by reason of the deft.'s breach of contract:

Held, by Martin, Bramwell, and Channell, BB. (dissentiente Kelly, C.B), that the damages given under the second and third heads, viz., for the clothes and the imprisonment, were too remote to be made the subject of an action.

(See Burton v. Pinkerton, ante, p. 494; L. Rep., 2 Ex. 343; 36 L. J. 137, Ex.)

This was an action brought by the plt., a mariner in the merchant service, against the deft., the captain or master of a steam-vessel called the Thames, for a breach of contract. The declaration contained several counts. The first count set out the agreement between the parties, whereby the deft. agreed to employ the plt., and the latter agreed to serve on board the Thames as one of the crew, for the voyage from London to Rio de Janeiro or any port or ports in North and South America, and other countries and places specified in the agreement and set forth in the declaration, backwards and forwards if required, for a period not to exceed twelve months, and back to a final port of discharge in the United Kingdom or continent of Europe between the Elbe and Brest, at certain wages per calendar month. Alleging as breach that the deft. did not employ the plt. to serve on board, &c., according to the said agreement, whereby the plt. lost the opportunity of earning wages, and was left at Rio and was arrested and imprisoned there, and deprived of his clothes, &c., and was impeded in obtaining employment. The second count was similar, but alleged as breach that deft. did not employ plt. according to the said

agreement, but prevented him serving on board the said ship during a part of the voyage, by sailing and departing with her from Rio without the plt. The third count, for inducing the plt. to enter into the said agreement by a false representation of the intended voyage. Fourth and fifth counts in trespass and trover for taking away and conversion of the plt.'s clothes and tools.

The deft. pleaded 1 and 2 to the first count denying the promise and the breach. 3. To the second count denying the promise. 4. To the second count deft. was always ready and willing to employ the plt., but the latter absented himself from the said ship, and did not at any time offer to perform his duties, &c., but wholly refused so to do or to be employed as agreed. 5. To the second count, misconduct of the plt. before breach by remaining absent from the ship and going on shore without leave and neglecting his duties, whereupon deft. discharged him from his service, &c., which was the alleged breach. 6. To the second count, desertion by plt. before breach and rescission of the agreement and discharge of the plt. by the deft. thereupon. 7, 8, and 11. To the third, fourth, and fifth counts respectively, not guilty. 9. To the fourth count, leave and licence. 10 and 12. To the fourth and fifth counts, not possessed. Upon all which pleas issue was joined.

At the trial before Kelly, C.B., at Guildhall, on the 20th and 21st Feb., it appeared that the owners of the Thames by charter-party, dated 20th Jan. 1866, agreed to let her to Thomson, Bonar, and Co. for all lawful service and employment as per margin, such service not to exceed twelve calendar months, and the charter provided (inter alia) that the ship was to proceed to such ports as might be directed by the charterers or their agent on board; and also that the said steamer being intended for the service of the Peruvian Government, if she should be burnt, captured, sunk, damaged, or driven on shore by any enemy of that Government, the charterers should pay her value (agreed at 45,000%) to the owners, or make good such damages. The plt. engaged himself to deft. as one of the crew on the 26th Jan. 1866, and signed articles, the terms of which are set out in the declaration. He went on board in the Victoria Docks, and sailed in her to Rio, where he discovered that the deft. was about to employ the Thames as a vessel of war in the service of the Peruvian Government, in the hostilities which were being then carried on between Peru and Spain. Thereupon plt. declined to proceed farther with the vessel, on the ground that the voyage had become illegal, and would expose him to risks not contemplated by his agreement, and he accordingly left her and went on shore at Rio as a deserter from a Peruvian ship of war, and was committed to prison, where he remained some eight or ten days. Upon coming out of prison he found that the deft. had sailed with the Thames to Callao, and that all his clothes and other articles which he had left on board were gone. On at length reaching England he brought this action against the deft.

The facts and evidence relating to the character of the voyage, and of the conduct of the plt. and deft., and the arrest and imprisonment of the plt., and the loss of his clothes, &c., are fully set out in the judgment of Kelly, C.B., in the case of Burton v. Pinkerton, ante, p. 494, and also in the judgments in the present case, so that it is unnecessary to recapitulate them here. The learned judge at the trial ruled that there was no defence to the action by reason of the voyage on which the deft. sought to employ the plt. having, through the breaking out of war, become, if not illegal, at all events of a different character from that contemplated by the agreement, and so that the deft. had committed a

[Ex.

breach of contract, and his Lordship therefore directed the jury to find for the plt. The damages claimed by the plt. by reason of the deft.'s breach of contract included a sum for the clothes and other things belonging to him, and left behind by him in the ship when he went on shore at Rio, and of which the fourth and fifth counts alleged a taking and conversion, and also consequential damages in respect of plt. having been arrested and imprisoned when ashore by the Peruvian authorities at Rio as a deserter from a Peruvian vessel of war; and the jury, by direction of the learned Chief Baron, assessed the damages resulting from the breach of contract under separate heads, namely, 127. 10s. in respect of the loss of wages which he would have earned under the contract had it been continued; 201. for the loss of the clothes, &c.; and 30% for general damages for the imprisonment, and otherwise by reason of the breach of contract.

Leave was reserved to the deft. to move to enter a nonsuit or a verdict for himself, on the ground that the facts did not show any breach of contract on his part, or to reduce the damages by one or both of the said sums of 207. and 30%, on the ground that the damages in respect of which these two sums were respectively given were too remote. A rule to that effect, and also for a new trial on the ground of misdirection, was accordingly moved for in Easter term, on the part of the deft., when the Court (Kelly, C. B., and Martin and Pigott, BB., dubitante Bramwell, B.), after taking time to consider, refused the rule on all the points moved except to reduce the damages (see report, Burton v. Pinkerton, ante, p. 494; L. Rep., 2 Ex.; 36 L. J. 137, Ex.) A rule nisi to reduce the damages by the above sums, or for a new trial on affidavits having been granted,

May 30.-E. James Q. C. (with him Watkin Williams), for plt., now showed cause against it, and contended that all the damages given by the jury under the above-mentioned three separate heads were the direct and immediate effect and consequence of the improper conduct of the deft. in endeavouring to retain the plt. in an illegal service, not within the terms or contemplation of the agreement entered into between them, and that plt. was justified in giving notice as he had done. The case came clearly within the rule in Hadley v. Baxendale, 9 Ex. 341.

The Solicitor-General (Sir J. B. Karslake, Q. C.), C. Pollock, Q. C., and Bompas, for the deft., contra, supported their rule, and maintained that the damages for the imprisonment and the loss of the clothes were too remote to be the subject of an action. They were not the natural result of the breach of contract. They cited

Vicars v. Wilcocks,8 East, 1, and notes thereon, in 2 Sm. L. Cas. 487, 6th edit.

Cur, adv. vult. June 4.-Their Lordships differing in opinion, the following judgments were now delivered :—

BRAMWELL, B.-In this case I am of opinion that there must be a new trial, and I am enabled to say that my brothers Martin and Channell are of the same opinion. It is not necessary to go over the whole facts of the case, but, in order to make what I am about to say intelligible, I may notice that the plt. was a sailor who had shipped on board the deft.'s vessel, under articles to the deft., for a voyage to different ports in the Atlantic and Pacific, but which voyage was not to exceed a year, and which was to terminate by the plt. being brought back to some port in the United Kingdom or continent of Europe between the Elbe and Brest. The Court has determined (see Burton v. Pinkerton, ante, p. 494) that the deft. broke that contract; for that, instead