garet's light. The Margaret's people on the other hand MARGARET. say that they saw the Warburton suddenly, two, three, four and five minutes before the collision. They all say that as soon as it was seen the master ordered the Margaret's helm to be put hard a-port, the mainyard to be squared, and the mizzen-stay-sail to be hauled down; that these orders were obeyed, the helm being hard a-port, and the men being in the act of squaring the mainyard and hauling down the stay-sail when the collision took place. On the other hand, the master of the Warburton, on seeing the Margaret's light, ordered the man at the Warburton's helm to keep his luff. Both vessels therefore appear to have done exactly what they ought to have done after they saw each other; for the Warburton, being on the starboard tack, was entitled by the rule of navigation to hold on her course, which she did; and the Margaret was bound to give way, which she endeavoured to do, the orders given by her master being those best calculated to make her pay off. The only question is, whether these orders were given and obeyed as quickly as possible after the Warburton's light was seen, and I see no reason to doubt they were. The witnesses on board the Margaret swear positively that they were given and obeyed immediately the Warburton's light was seen; and their direct evidence on this point, in my opinion, overbalances that of the people of the Warburton, which can only be founded on their estimate of the time which elapsed between the time when they showed their binnacle light over the side of the vessel, and the time of the collision. The impossibility of forming any correct estimate of time in cases of this kind, amidst the hurry, excitement and confusion which necessarily prevail, is too well known to need comment. Whether the collision took place at five o'clock as stated by the Margaret's people, or at forty minutes after five as stated by those of the Warburton, it certainly took place MARGARET. before daylight. Both vessels appear to have done their best to comply with the regulations of the Admiralty then in force, which merely required that a sailing vessel should, between sunset and sunrise, on approaching any other vessel, show a bright light in such a position as could be best seen by such other vessel, and in sufficient time to avoid collision. The new Admiralty Regulations, which require constant lights, were not then in force, and therefore, we cannot say that the Warburton contravened any rule of navigation in taking in the bowsprit light for the purpose of trimming it, though it does appear very probable that if there had been, throughout the whole time the vessels were approaching each other, a constant light at the bowsprit end, the accident might not have occurred. The new regulations are evidently much better calculated to prevent accidents by collision than those for which they are substituted; and the mercantile world. may, I think, be congratulated upon the care and science of which the authorities of the Admiralty have given proof in their promulgation. As they were not in force, and the Warburton complied literally with the then existing regulation by showing a light on her quarter, as soon as possible after she saw the Margaret's light, she cannot be said to have been in fault; and I see no reason to regard the collision otherwise than as the result of inevitable accident. In such case the rule of law is, that the damage must be borne by the party on whom it happens to alight; the other not being responsible to him in any degree. Then, as to the costs incurred in the suit, the Court feels itself bound to follow the practice adopted by the High Court of Admiralty of England, which is, as stated by Dr. Lushington in the case of The Itinerant (a) not to (a) 2 W. Rob. p. 244. give costs on either side when a collision has occurred from inevitable accident. Pentland and Pentland, for the Warburton. Holt and Irvine, for the Margaret. NOTE.-On an appeal to Her Majesty in Her Privy Council this decision was affirmed on the 13th February, 1861, there being present Lord KINGSDOWN, Lord CHELMSFORD, Dr. LUSHINGTON, and Sir EDWARD RYAN, when Dr. LUSHINGTON pronounced the following judgment :Their Lordships do not think it necessary to trouble the Counsel on the other side to give an answer to the arguments which they have heard. Everything that could well have been said in support of the Appellant's case has been said, but it does not appear to satisfy their Lordships in any degree that the judgment of the Court below was erroneous. We do not deem it necessary to enter minutely into the evidence in the case, but it may be as well to state one or two points which have been useful in guiding their Lordships' judgment in affirming the decision of the Court below. It is manifestly clear that the owners of the Warburton, in order to prove their case, are bound to prove to the satisfaction of their Lordships that the Margaret was to blame. The onus probandi was upon them in the first instance, and that is greatly increased by the long discussion and evidence in the Court below, and the judgment there not being in their favour. Now one consideration is, what was the conduct of those on board the Warburton on this night the captain and crew. Looking at the whole of the evidence we think it must have been an exceedingly stormy night, and in the morning there had been successive showers of snow, and at times it was foggy,-though there is a conflict of evidence as to the exact state of the atmosphere at the time the collision took place, but there is evidence that MARGARET. MARGARET. the wind was blowing very strong, and that it was a dark morning. Now, under these circumstances, the Warburton very properly carried a light at the bowsprit end. It may be very true that, under ordinary circumstances, there was no law to compel the Warburton to carry a light at the bowsprit end,—and it would have satisfied the law and have been sufficient as the law then was, if she had had a bright light ready to show to a vessel, but on such a night as this we conceive it was the duty of those on board the Warburton to take every possible precaution, and that when the bowsprit light became dim, and it was requisite and necessary for them to remove it for the purpose of trimming it, they ought to have put another in its place to give every notice they could to those vessels that were in that locality. There, we are of opinion that the Warburton had failed. Now, with respect to the Margaret, it has been strongly insisted, and perhaps truly, that if at the moment this other vessel was descried, as soon as notice was given that the vessel was seen two points on the lee bow, the helm had been put to port, it is possible the collision might have been avoided. But we are of opinion that it is not prudent, or consistent with propriety, that the moment you descry a vessel you are to port your helm. Time must be allowed and opportunity given,though it ought to be done as quickly as possible,—to ascertain the direction of the vessel; because otherwise the consequence would be, if the vessel was going in the opposite direction to that in which she at first sight is supposed to be, and which cannot be ascertained at the moment when you see a single bright light—it is not as if you saw a coloured light-more especially on a dark night, the consequence, I say, would be certain destruction. Looking at the whole of the case, and considering that the onus probandi lies upon the Appellant, and that he has failed in discharging it, we must affirm the decision of the Court below with costs. Tuesday, 31st January, 1860. THE HAIDEE-KEMPTHORN. The Admiralty has jurisdiction, in cases of possession, to reinstate owners of ships who have been wrongfully displaced from their possession. When the Court has original cognizance of the principal matter, it has also cognizance of the incidents thereto. When a limited authority is given to justices of the peace, they cannot extend their jurisdiction to objects not within it, by finding as a fact that which is not a fact; and their warrant, in such case, will be no protection to the officer who acts under it. Under the 190th section of the Merchant Shipping Act, no seaman, engaged for a voyage or engagement to terminate in the United Kingdom, can sue in any court abroad for wages, unless he is discharged with such sanction as is required by the Act. Under the 526th section of that Act, a ship cannot be seized under an order made against a person who, at the time, is neither owner nor entrusted with the possession or control of her. A maritime lien is not indelible, but may be lost by delay to enforce it when the rights of other persons have intervened. This was a suit brought by Thomas Hobbs, of Liverpool, Merchant, to obtain possession of the British registered ship Haidee, alleging that he was the owner, and that possession thereof was wrongfully withheld from him by Richard Kinsley. The facts connected with the detention of the vessel are fully stated in the following judgment this day rendered in the cause :— JUDGMENT.-Hon. Henry Black. This is a case technically known as a "cause of possession," the object in which is to obtain the restoration to the alleged rightful owner of a vessel, of which he avers that he has been wrongfully dispossessed. The proceedings in this Court commenced on the 14th of September last, by the promoter, Thomas Hobbs, as the owner of the HAIDEE. |