amongst the most frequent instances of negligence causing collision. The cases dealing with specific acts of negli gence, both infringement of the regulations for preventing collisions at sea, and neglect of the ordinary practice of seamen, are considered in a subsequent Chapter (Chapter XIV.); the cases as to the ordinary practice of seamen being collected under Art. 24, which expressly refers to the necessity of observing such rules of seamanship.

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CHAPTER II.

STATUTORY PRESUMPTION OF FAULT.

Ir has been already stated that under certain circumstances an arbitrary rule of law requires the Courts to hold a ship in fault for a collision, although no negligence on her part contributing to the collision is proved. And it will be seen below that this rule applies, not only where negligence is not proved, but where it did not exist, and where those in charge of the ship were, as regards negligence, absolutely free from blame. The circumstances which bring this stringent, not to say harsh, enactment into operation, are as follows:-First, where, on the part of the ship sued, there has been an infringement of any of the statutory regulations for preventing collisions at sea, which might by possibility have contributed to the collision; and, secondly, where the ship sued did not stand by to assist the other with which she had been in collision. The decisions upon the first of these enactments are so much more numerous and important than those illustrating the second, that it will be convenient to reverse the order in which they occur in the statute (36 & 37 Vict. c. 85, ss. 16, 17), and to consider the section of the Act (sect. 17) relating to infringement of the regulations before that (sect. 16) which deals with failure to stand by.

By 57 & 58 Vict. c. 60, s. 419 (4), it is enacted as follows:

66

'Where, in a case of collision, it is proved to the Court before which the case is tried that any of the collision regulations have been infringed, the ship by which the regulation has been infringed

shall be deemed to be in fault, unless it is shown to the satisfaction of the Court that the circumstances of the case made departure from the regulation necessary."

navigation.

To understand the effect of this enactment it will be History of legislation necessary to refer to previous legislation upon the subject. upon the By 14 & 15 Vict. c. 79, s. 28, and afterwards by 17 & 18 subject of infringement Vict. c. 104, s. 298, it was enacted, in effect, that if a of statutory collision was occasioned by the non-observance of any of rules of the rules as to lights or navigation contained in or made under those Acts, the owner of the ship by which the rule was infringed should recover no damages for injury to his ship, unless it was proved that the departure from the rule was necessary (a). The effect of these enactments was to abrogate the rule of the Admiralty, that a wrong-doing vessel shall recover half her loss if the other ship is also in fault, in the case of a vessel which had unnecessarily infringed the statutory rules. In each case the question had to be tried whether the infringement was negligence contributing to the collision. In Tuff v. Warman (b) and other cases (c) it was held, upon the construction of these

"If

(a) The sections ran as follows: 14 & 15 Vict. c. 79, s. 28: in any case of collision between two or more vessels it appear that such collision was occasioned by the non-observance of either of the foregoing rules with respect to the passing of steamers, or (the rules as to ships' lights made under the powers of the Act) "the

owner of the vessel by which any such rule has been infringed, shall not be entitled to recover any recompense whatever for any damage sustained by such vessel in such collision, unless it appears to the Court before which the case is tried that the circumstances of the case were such as to justify a departure from the rule," &c. The subsequent Act, 17 & 18 Vict. c. 104, 8. 298, was as follows:-" If in any case of collision it appears to the Court before which the case is

tried that such collision was occa-
sioned by the non-observance of
any rule, &c. . . the owner of
the ship by which such rule has
been infringed shall not be entitled
to recover any recompense what-
ever for any damage sustained by
such ship in such collision, unless
it is shown to the satisfaction of
the Court that the circumstances
of the case made a departure from
the rule necessary." Under the
latter Act, The Juliana, Sw. 20,
was decided.

(b) 2 C. B. N. S. 740; 5 C. B.
N. S. 573.

(c) Morrison v. General Steam Navigation Co., 8 Ex. 733; The Vivid, 10 Moo. P. C. C. 472; The Aliwal, 1 Sp. 96; The Telegraph, ibid. 427. See also The Juliana, Sw. 20; The Fairy, 1 Sp. E. & A. 298; The Wansfell, Sp. E. & A.

271.

enactments, that though the plaintiff had infringed the regulations, and by his negligence had brought the ships into danger, yet if the defendant could by reasonable care have avoided the collision, the plaintiff could recover. Where one ship, A., was in fault for not keeping a look out, and the other, B., was in fault for infringing the statutory rule, it was held that A. could recover half her. loss, and that B. could recover nothing (d). But it was held that sect. 298 did not prevent the owner of cargo on board a ship infringing the statutory rule from recovering half his loss (e). The effect of these enactments, so far as they abrogated the Admiralty rule of division of loss, was probably not apprehended by the legislature (ƒ).

The next alteration in the law was made by 25 & 26 Vict. c. 63, s. 29 (g). The effect of this enactment was to restore the Admiralty rule as to the division of damages where both ships are in fault, and a vessel guilty of an infringement of the statutory regulations was enabled to recover in the Admiralty Court (as she could previously to 14 & 15 Vict. c. 79) half her loss against a defendant vessel which was also in fault. The question whether a ship which had infringed a regulation applicable to the case was guilty of negligence contributing to the collision had still to be tried in every case (h).

The application of the doctrine in Tuff v. Warman prevented the above statutes from having the effect desired

by those who framed them. Attention appears to have been called to the subject by the decision in The Fenham (i); and 36 & 37 Vict. c. 85, s. 17, which, in effect, is identical with 57 & 58 Vict. c. 60, s. 419 (4), the enactment now in force, was passed in consequence. The change in the language of this enactment was made with the following objects:-First, to take away the ratio decidendi in Tuff v. Warman; secondly, to render it unnecessary to have resort to an artificial rule as to the inference to be drawn from evidence (); thirdly, to enable the Courts to adjudicate upon collision cases without the necessity of determining upon conflicting evidence the question of fact, (often a nice one,) whether or no an infringement of a statutory regulation, applicable to the case, and that might by possibility have contributed to the collision, did, in fact, contribute to the collision (1); and, lastly, to increase the stringency of the regulations (m). The statute, therefore, imposes on a vessel that has infringed a regulation which is primâ facie applicable to the case, the burden of proving, not only that such infringement did not, but that it could not, by possibility, have contributed to the collision (). It is therefore

(i) See per Lord Blackburn in The Khedive, 5 App. Cas. 876, 892; and perhaps by The Bougainville and The J. C. Stevenson, L. R. 5 P. C. 316 (1872, 1873).

(k) As in The Fenham, L. R. 3 P. C. 212. These two reasons for the alteration in the law are given by Lord Blackburn in The Khedive, 5 App. Cas. 893.

(1) The Fanny M. Carvill, 13 App. Cas. 455, n.; 2 Asp. Mar. Law Cas. 565; in Court below, ibid. 478; L. R. 4 A. & E. 417, 422; cited by Lord Blackburn in The Khedive, 5 App. Cas. 876, 893; approved and followed by the Privy Council in The Lapwing, 7 App. Cas. 512; The Hibernia, 2 Asp. Mar. Law Cas. 454. (m) Per Lord Watson, The Khedire, 5 App. Cas. 876, 901.

(n) In Canada the course of legislation upon this subject has fol

M.

lowed that of England. 31 Vict. c. 58, s. 6 (Canada) was to the same effect as 17 & 18 Vict. c. 104, s. 298, and in The Eliza Keith and The Langshaw, 3 Quebec, L. R. 143, it was held that a ship that had infringed the Canadian statutory rules could recover nothing, though the other ship was also in fault; but that the cargo-owner could recover half his loss; cf. The Milan, ubi supra. See also the following Canadian cases :-The Aurora, 2 Stuart's V. Ad. Rep. 52; The Arabian, ibid. 73; The Germany, ibid. 158; The Quebec and The Charles Chaloner, 19 Low. Canada Jurist, 197. The subsequent Canadian statute, 43 Vict. c. 29 (following the English Act, 25 & 26 Vict. c. 63), restores the Admiralty rule as to division of loss where the statutory rules are infringed.

E