The plaintiff must therefore make out at least a primâ Burden of proof. facie case. The burden of proof lies on him so far (p). But it does not follow that it lies on him throughout the whole case. Having made out a primâ facie case of negligence on the part of the defendant, the burden of proof is shifted, and the defendant will be liable unless he proves that his negligence in no way contributed to the loss (q). "Where certain inferences of fact have been established by numerous cases, they become to a great extent very nearly of the same authority as if they were propositions of law" (r). This is notably the case in collision actions. Ship at In the common case of a collision between a ship under way and another at anchor in a proper place, and (if at night) with her light burning, the burden (s) is upon the other ship to show that she was not in fault (t). When a vessel under steam runs down a ship at her moorings in broad daylight, that fact is by itself primâ facie evidence of fault (). A ship was, in America, held in fault for unnecessarily running into an anchorage ground in a gale of wind and damaging a ship at anchor, although the latter had no riding light (c). And the rule seems to be the same in the case of a ship ashore (y), a fishing boat (p) The Bolina, 3 Not. of Cas. 208, 210; The Carron, 1 Sp. E. & A. 91; The London, 11 Moo. P. C. C. 307; The Marpesia, L. R. 4 P. C. 212; The Benmore, L. R. 4 A. & E. 132; The Abraham, 28 L. T. N. S. 775; The Albert Edward, 44 L. J. Ad. 49. (a) The Ligo, 2 Hag. Ad. 356, 360; The Sisters, 1 P. D. 117; The City of Antwerp and The Friedrich, L. R. 2 P. C. 25; Cayzer v. Carron Co. (The Margaret), 9 App. Cas. 873. See Daniel v. Metropolitan Rail., L. R. 3 C. P. 216; ibid. 591, as to what is sufficient evidence of negligence; S. C. ibid. 5 H. L. 45. (r) Per Mellish, L.J., L. R. 9 Ch. 713 (as to proof of damage in actions to restrain nuisances). (s) See The Indus, 12 P. D. 46, as to how this burden may be discharged. (t) The Bothnia, Lush. 52; The Telegraph, Valentine v. Clough,_1 Sp. E. & A. 427; The Otter, L. R. 4 A. & E. 203; The Annot Lyle, 11 P. D. 114; The Henri IV., 13 Quebec L. R. 379; The Beaver, 2 Bened. 118; The Baltic, 2 Bened. 452; The D. 8. Miller, 76 Fed. Rep. 877; The Meanatchy, (1897) A. C. 351. (u) Per Lord Watson, The City of Peking, 14 App. Cas. 40, 43. Cp. The Indus, supra; The Merchant Prince, (1892) P. 179. (x) The Drew, 35 Fed. Rep. 789. (y) The F. & P. M. (No. 1), 45 Fed. Rep. 703. anchor. How to discharge it. Proof of absence of contributory fast to her nets (z), a ship in stays, hove to (a), lying dead in the water (b), or otherwise not under command, and, without negligence on her own part, unable to keep out of the way. It has been pointed out in America by the Supreme Court that a ship in tow in collision with another tow is in a wholly different position, as regards the burden of proof of negligence in one or both tugs, from that of a ship at anchor suing another under way (c). A vessel's steam steering gear jammed, and, in broad daylight, she ran into a ship at anchor. There was no proof as to why it jammed; and there was hand gear, which was not used. It was proved that the owners had been careful to provide good steering gear. Butt, J., held that the defendants, the owners, had discharged the burden, which was upon them, of proving that the collision was inevitable. This decision was reversed upon appeal, Fry, L. J., saying that to sustain the defence of inevitable accident, the defendants must "either show what was the cause of the accident, and show that the result of that cause was inevitable; or they must show all the possible causes, one or other of which produced the effect, and must further show with regard to every one of those possible causes that the result could not have been avoided” (d). In common law actions for negligence, there has of late been much discussion whether it is necessary for a plaintiff negligence in to give evidence of absence of contributory negligence (e). the plaintiff. (2) The Columbus, Pritch. Ad. (a) The Eleanor and The Alma, (b) The James T. Easton, 27 Fed. Rep. 464. A tug lying in the track of a ferry boat, that refused to move when whistled to do so, was, in America, held in fault; The Roslyn, 22 Fed. Rep. 687. (c) The L. P. Dayton, 13 Dav. 337. (d) The Merchant Prince, (1892) P. 179, 189; and see The Indus, 12 P. D. 46, as to discharging the burden of proof. (e) See Smith v. South Eastern Rail. Co., (1896) 1 Q. B. 178; Wakelin v. London and South Western Rail. Co., ibid. 189, n.; Dublin, Wicklow and Wexford Rail. Co. v. Slattery, 3 App. Cas. 1155. In an action, whether at common law or in Admiralty, for collision between ships, it seems to be clear that no such evidence is necessary to justify a verdict or judgment of "both to blame." And in an ordinary "day" collision between a ship under way and a ship at anchor, it would seem that the fact of the collision raises a presumption of negligence in the ship under way, which, unless rebutted by proof of negligence in the ship at anchor, must result in a judgment for full damages. The matter is not, however, free from doubt, for even in such a case it has been said that evidence of absence of negligence in the plaintiff is necessary to enable him to recover (f). When the point arises for final decision it will probably be found that the opinion of Kay, L. J., in Smith v. South Eastern Rail. Co. (g) is correct, and that, in order to raise a presumption of negligence in the defendant, it is not necessary for the plaintiff, in the first instance, to prove absence of negligence on his own part. In Admiralty actions the defendant's preliminary act will often assist in raising the presumption of negligence against himself. The rule that the mere fact of a daylight collision between a craft under way and another at anchor is primâ facie evidence of negligence in the latter, is not without exceptions. A derrick or wreck-raising craft moored in a strong and narrow tideway over or alongside a wreck, although not in an improper position or unlawfully obstructing the fairway, nevertheless presents such an obstruction to other vessels that it would not be reasonable (f) In The Clara, 12 Otto, 200, it was said that "the plaintiff, in order to recover entire damages, must prove both care on his part and want of it on the part of the defendant"; and Parsons on Ship., I. 529, is to the same effect. Cf. The Michigan, 52 Fed. Rep. 501; the libellant to prove his light was burning and could be seen ; Middlesex Quarry Co. v. The Albert Mason, 2 Fed. Rep. 821. The R. R. Kirkland, 48 Fed. Rep. 760, seems opposed to this. (g) (1896) 1 Q. B. 178, 189. The cases as to the defence of compulsory pilotage, infra, p. 260, are to the same effect. to presume that the latter are negligent merely because they foul the former. The difficulties of the craft under way are still greater, if they are sailing vessels and the weather is boisterous, or if they are tugs with a heavy train of barges in tow, and the obstruction is come upon suddenly and unexpectedly (h). In a difficult position, the ship at anchor may have duties to perform with reference to the other ship in the way of sheering with her helm, or paying out chain, so as to drop astern (i). And where the anchored vessel is lying in a fairway or frequented waters, out of ordinary anchorage ground, and the collision is at night or in a fog, and the questions whether she was in a proper place and exhibited proper lights, or sounded proper fog signals, and maintained a watch, are raised by the pleadings, the burden would seem to be on her to prove that she was not in fault in any of these matters (k). Where, in New York harbour, a ship was lying at a wharf with her bowsprit projecting into a slip, contrary to the harbour rules, and a ferry boat entering the slip struck the bowsprit, it was held that both were in fault, the one for being moored in an improper position, the other for not keeping clear of her (1). And so where the moored ship at night had not stowed her boom, which was left outboard over the rail (m). So where the loss is not immediate, and other possible causes intervene (as where the vessel is lying in driving ice), the burden of proof may be on the ship at anchor to show that the loss was caused by the collision (n). (h) In an American case of this nature, the craft under way were held to be free from fault; The Chauncey M. Depew, 59 Fed. Rep. 791; cf. The J. R. P. Moore, 45 Fed. Rep. 267; The Bridgeport, 35 Fed. Rep. 159; The Passaic, 76 Fed. Rep. 460. (i) See Wells v. Armstrong, 29 Fed. Rep. 216; and cases infra, p. 199. (k) This opinion has been expressed in American cases; The Armonia, 67 Fed. Rep. 363. (1) The Fort Lee, 31 Fed. Rep. 570; The Margaret J. Sanford, 30 Fed. Rep. 714; 37 Fed. Rep. 148. (m) The Industrie, 27 Fed. Rep. (n) The Maryland, 14 Fed. Rep. 767. 367. required to keep out of the way. Where two ships are approaching each other so as to Where one involve risk of collision, the law (o) usually requires one of ship is by law them to keep out of the way and the other to keep her course. If a collision occurs between two such ships, there is, it is submitted, no presumption that the ship required to keep out of the way is in fault (p); for the duty of the other ship to keep her course is no less stringent than that of the former ship, and until she proves that she did keep her course the fact of the collision is no evidence of negligence in the ship required to keep out of the way. upon such proof being given, a presumption of fault in the ship required to keep out of the way arises, and unless she proves circumstances rebutting this presumption she will be held in fault without proof of any specific act of negligence on her part (9). But Though in clear weather and under ordinary circumstances the presumption is that a steamship is able to keep out of the way of a sailing ship, it may happen that by no fault of her own she is not able to do so. In such a case (0) See the regulations for preventing collisions at sea, Arts. 17, seq., infra, p. 447. (P) See per Westbury, C., The City of Antwerp, L. R. 2 P. C. 25; infra, p. 470; The Florence P. Hall, 14 Fed. Rep. 408. (9) See the following American cases: The Carroll, 8 Wall. 302, 304; The Scotia, 14 Wall. 170, 181; New York, &c. Mail Co. v. Rumball, 21 How. 372, 385. In some cases, however, the burden has been thrown in the first instance прo the steamship to prove that the sailing ship altered her course; The Seneca, 47 Fed. Rep. 87; The J. D. Peters, 42 Fed. Rep. 269; The Gypsum Prince, 67 Fed. Rep. 612; per Brown, J., The City of Truro, 35 Fed. Rep. 317: "Where, upon the whole case, there is no decisive evidence of fault on the part of the sailing vessel, the steamer must answer for the colli sion, where no circumstances appear as between a free and a close-hauled By the Maritime Code of Riga, the note. |