into danger, yet if the defendant could by reasonable care
have avoided the collision, the plaintiff could recover.
AVhere one ship, A., was in fault tor 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 (f/). 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). Tlie effect of these enactmeuts, so far as
they abrogated the Admiralty rule of division of loss, was
probably not apprehended by the legislature (,/').
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 Eegulations was enabled to
recover in the Admiralty Court (as she could previously to
14 & 15 Yict. 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 w^as guilty of negligence contributing to the collision
had still to be tried in every case {//).
The application of the doctrine in Tu//^' v. Warman
prevented the above statutes from having the effect desired
See also The Juliana, Sw. 20 ; The
Faini, 1 Sp. E. & A. 298 ; The
Wansfell, 1 tip. E. & A. 271
[d)
(/;
110.
The Aurora^ Lush. 327.
2he Milan, Lush. 388.
'The ^tvaiiland, 2 Sp. E. & A.
' If in auy case of collision
it a|. pears to the Court before
which tlie case is tried that such
collision was occasioned by ihe nou-
obhci vance of any Kegulatiou ninde
by or in pursuance oi this Act. the
ship by w hicii such Regulation has
been infringed shall be deemed to
be in fault, unless it is shown to the
satisfaction of the Court that the
cii'cunistances of the case made a
departure from the rule necessary."
The wording of this section stems
to h&\ e beeij suggested l^y a passage
in the judgnieut of Cockburu, C. J.,
in Tiijf V. II ani/a/i, iibt su/rra.
[h] Under this Aci the following
ca~es wt-re decided : 'The Tenhatn,
L. K. 3 P. C. 212 ; The Boii(iai..iille,
L. E. 5 P. C. 3U); 'Ike Falestine, 13
W. R. Ill; The Tyrus and The
timalcs, Holt, 4U ; 'The Tmnsyhania,
infra, p. 64.
HISTORY OF LEGISLATION.
by those who framed them. Attention appears to have
heen called to the subject by the decision in The Fcnham [i) ;
and 36 & 37 Vict. c. 85, s. 17, the enactment now in force,
was passed in consequence. The change in the language
of this enactment was made with the iollowiug objects: —
I'irst, to take away the ratio decidendi in T({ff' v. Warmnn;
secondly, to render it unnecessary to have resort to an
artificial rule as to the inference to be drawn from evi-
dence (/.•) ; thirdly, to enable the courts to adjudicate upon
collision cases without the necessity of detemiining upon
conflicting evidence the question of fact, (oft. n a nice one,)
whether or no an infringement of a Statutory !{• gulation,
applicable to the case, and that might by possibility have
contributed to the collision, did, in fact, contribute to the
collision (/) ; and, lastly, to increase the stringency of the
Regulations {in). The statute, therefore, imposes on a
vessel that has infringed a Regulation which is prima facie
applicable to the case, the bm-den of proving, not only that
such infringement did not, but that it could not, by possi-
bility, have contributed to the collision (>/), and it is the
(i) See per Lord Blackburn in lowed that of England. 31 Vict.
The Khedive, 5 App Cus. STti, S92; c. 58, s. 6 (Canada) was to the same
and perhaps by The Jlour/ainiille effect as 17 &; 18 Vict. c. 104, s, 'it'S,
and 'The J. C. Stevenson, L. E,. 5 and in The Eliza A'et/h and The
P. C. 316 (1872, 1873). Langshair, 3 Quebec. L. R. H3, it
{k) As in The Fexham, L. E.. 3 was held that a ship that had in-
P. C. 212. These two reasons for fringed the Canadian statutory
the alteration in the law are given rules could recover nothing, though
by Lord Blackburn in The Khedive, the other ship was also in fault ;
5 App. Cas. 8'J3. but that the cargo-owner could
[l] The Fanny M. CarvUI, 13 App. recover half his loss; cf. TIteMtlan,
Cas. 455, note ; 2 Asp. Mar. Law ubi supra. See also the following
Cas. 565 ; in Court b> low, ii. 478; Canadian cases: — The Aurora, 2
L. R. 4 A. & E. 417, 422; cited by Stuart's V. Ad. Rep. 52; The
Lord Blackburn in The Jihedive, 5 Arabian, ib. 73 ; The Germany, ib.
App. Cas 876, 81*3 ; approved and 158 ; The Quebec and The Charles
followed by the Privy Council in Chaloner, It) Low. Canada Jurir-t,
The Lapu-iny,! Ai^Y>. Cas. bl2; 'The 197. The subsequei't Canadian
Mtbernia, 2 Asp. Mar. Law Cas. statute 43 Vict. c. 29 (following
454. the English Act 25 & 26 Vict. c. 63) ,
(«() Per Lord Watson, The Khe- restores the Admiralty rule as to
dive, 5 App. Cas. 876, 901. division of loss where the statutory
(/() In Cauada the course of legis- rules are infringed,
lation upon this subject has fol-
41
42 STATUTORY PRESUMPTION OF FAULT.
duty of the Coiu-t to inquire into the facts, in ord^^r to
ascertain whether the iufringemeut could possibly have
contributed to the collision (o).
Cases decided In the following case it was held that the infringement
^^he^i^gUsii- ^^ ^ Regulation clearly applicable to the case did not, und^r
»»««. sect. 17, prevent the vessel guilty of the infringement from
recovering, because the infringement could not by possi-
bility have contributed to the collision. VEtoUe was a
French trawler, close-hauled on the port tack, ju4 going
to shoot her nets, and going two or three knots. The night
being fairly clear. The Englishmrtn, an English sailing
vessel, was seen coming towards her with the wind free.
VEtoilc had a bright light at her masthead. Her side
lights were waved by hand on deck, but failed to attract
the other ship's notice. The Englishman came on and
struck V EtoUc on the port side. On the part of The Eng-
lishman it was alleged that nothing was seen or heard of
VEtoUc until she struck her. It was held by the Admi-
ralt}' Court that there was no look-out on board The
Englishman, and that the absence of lights on board
VEtoile could not have contributed to the collision ; that
sect. 17, therefore, did not apply, and The Englishman was
solely in fault (;;).
The Fanny M. Carvill was before the Court in The
Englishman, and the decision in the latter case was expressly
stated by the Court to be in conformity with that of the
Privy Council. It appears to have been considered by the
Court that the admission by The Englishman that nothing
was seen of L'Etoile until the moment of the collision was
equivalent to an admissitm that the absence of side-lights
on board the latter could not, by possibility, have contri-
buted to the accident.
In The Lapiving [q) , a steamship under way was held in
(o) The T)i'kc of Bucdengh, 1.5 P. (;j) Thfi Eiiglkhman, 3 P. D. IS ;
D. 6G ; The. Uennod, G2 L. T. N. S. see The (Jhuxan, o Asp. M. C. 476.
070. {q) 7 App. Cas. 512.
INSTANCKS OF ITS APPLICATION. 48
fault imder .sect. 17 for liaving, some foui- minutes or more
before the collision, hauled down her masthead light,
althougli her side light was seen by the other vessel for
some time before the collision.
In The Iinhro (r), a sailing ship lying becalmed, and
nearly broadside on to a steamship coming up channel, was
held in fault, under sect. 17, because she had a white light
lashed to her taffrail, and visible to an approaching steam-
ship.
In The Main (s) a sailing ship was held in fault under
the same section for not exhibiting a stern light to an
overtaking steamship.
In The Tolled {t) a schooner was held in fault under the
same section because, being at anchor with her mainsail
scandalized (half lowered), her riding light might possibly
have been hidden from the steamship that fouled her.
Where a Regulation which is material to the case is
proved to have been infringed, as, for example, where one
of the lights of the ship sued, which was open to the other
ship, is proved to have been insufficient to satisfy the
statute («/), the onus is on the ship carrying the improper
light to show, if she can, that the departure from the
Regidations was necessary [x). In the absence of such
proof she will be held to be within the penalty of
sect. 17 (//). If she alleges the other ship to be also in
fault, it lies on her to prove, if she can, that it was not her
fault alone that caused the collision {z).
A vessel {a) sailing from Dieppe some days before the
Regulations of 16»0 came into force was, under sect. 17,
(;•) 14 P. D. 73. Tmn-ti v. Clchrro, 9 App. Cas. 1.S6;
(,s) 11 P. D. 13J. The Vera Cruz, 9 P. D. 88, iufra,
(t) Ad. Div. Uth Doc. 1S86. p. 4t ; and in/ra, pp. 44—46, as to
(«) The JJiikc of Bitcclcuyh, 15 P. ships in fault, under sect. 17, for
D- 86. improper lisjhts. The Fenham,'L.'R.
(j) The Memtion, 59 L. T. N. S. 3 P. C. 212, is a similar case under
2S9 ; 62 ib. 84 ; see esp. per Lord 25 & 26 Vict. c. 63, s. 29.
Herschell, at p. 85, i>i/ni, p. 5i. (z) The Arklow, 9 App. Cas. 136.
[ij) See /'/((■Uibcriii'i, 2 Asp. («) Tne JfunsewUz, seinble, a
Mar. Law Cas. 454 ; The Arklow, foreign ship.
Buccleuyh.
^4 STATUTOKY PRESUMPTION OF FAULT.
held in fault for a collision, because she was not sounding
and was not provided with a mechanical fog-horn. There
"was no proof that a mechimical horn could not have been
procured at the port from which she sailed ilj). But where
a foreign ship canie into the Mersej without having on
board a second riding light, as required by the Mersey
Rules (ej, and a collision occurred before the master, who
had gone ashore to get one, had returnt d to the ship, it
was held that the cii-cumstances made a df-paiture from
tliH Rngulations necessary within the meaning of 8^ & 37
Viet. c. -So, s. 17 {<l).
The Duke of The Vondalia, a full rigged ship, close hauled upon
the starboard ta<-k, and heading E. | S., was run into
on her port side in the English Channel by The Duke of
Buccleugh steamship, outward bound. The poit light of
The VanilaUa was so fixed as to be partially obscured by
her foresail to an observer right ahtad, but so as not to be
obscured at all to an observer one-and-a-half points on her
port bow. Butt, J., considering that the Finmy M. Cdrrill
precluded him from going into nice questions of fact, held,
without deciding anything as to the relative positions of
the two ships before the collision, that The VartdaJia was in
fault under s. 17. The Couit of Appeal reversed this
decision, holding that the Court must decide whether the
admitted infringement of Art. 6 could possibly have con-
tributed to the collision ; and that The Btike of BuccleiKjh
never was a-head of The Vioidallu, or in such a position
that Tlic VondaluCii light could have been in any way
obscured to her. Lord E&her, M.E,., pointed out that The
Fanuij 31. Carvill did not jjreclude the Court from going
into the question of fact as to the relative courses and
positions of the ships before the collision ; the efPect of that
case was merely to throw upon the shij), by which the
ib) The Love Bird, 6 P. D. 80. {d) The Calypso and The Mkm-
ic) See p. 570, below. xippi, Ad. Ct. 7th, 8tli, and 9th
March, 1878 ; Mitch. Mar. Reg.
INSTANCES OF ITS APPLICATION'. 45
Reo'iilations wore infringed, the burden of proving tliat the
infringement eould not have contributed to. the collision.
That burden, in the case before them, The Vandalia dis-
charged [(â– ).
In Till' Bvcdalhane (_/') a brig was being overtaken by a
full-rigged ship. The brig did not show astern either a
white light, or a flare, in compliance with Art 11, but her
binnacle light was visible over her stern. It was held by
Sir R. Phillimore that the infringement of Art. 11 could
not by possibility have contributed to the collision, and
that the brig was not in fault under sect. 17. There is
some difhcalty in reconciling this decision with the cases
above cited. The collision appears to have been partly
caused by the crippled condition of the ship ow-ng to some
of her canvas being carried away ; perhaps for that reason
the absence of the stern light may have been considered
immaterial.
Regulations in force in the Mersey sea channels {(j)
require two riding lights to be exhibited, the forward, or
bow light, not more than 20 feet above the ship's hull,
and the after one at double the height of the former. A
vest-el was held in fault under sect. 17 because her after
light was, at most, 18 feet above the deck, whilst the
forward light was 12 feet above the deck, and another
vessel because both her lights were nearly the same height,
about 20 to 22 feet above the de -k (//).
The ca-es above cited show that the words of sect. 17, The Eo.^nla-
" any of the Regulations," are not to be construed literally ; |nf'i'ii?<reti ^^
that it is not an infiingement of any Rt gulation that wid ""'^t l)o one
bring the section into operation, but only an infringement the caJe.
of a Regulation " which was in the circumstauces appliu-
{e) The Duke of Buccleugh, 15 (//) The Vera Cruz {Tiio.\),dV.Tf .
P. D. 8ti. 88. This catse waw re ersed uj on
(f) 7 P. D. 186. a. other point, 9 P. D. 1)6; The
{(/) Lndcr 37 & 38 Vict. c. 52. llenuod, 6:^ L. T. N. S. C70.
46 STATUTORY PRESUMPTION OF FAULT.
able"(/). In The Fannij M. Carvill {supra) it was held
that TJie Peru was not in fault under sect. 17 because her
screens were seven inches short of the statutory length
(three feet) , it being clear that her lights were not in fact
seen across her bow.
A Eegulation such as Art. 1.^, of which the object is not
only to prevent collision but to minimise its effects [k),
may, it seems, be infringed after the collision becomes
inevitable, or where it is from the first inevitable. For
such an infringement the ship would probably be " deemed
to be in fault " under sect. 17, though ex Jujpothesi it could
not have contributed to the collision.
Infring'ement, A more difficult question is — What is such an infringe-
wiU brin^ a^ meut of a Regulation as will bring a ship within the
ship within penalty of sect. 17':^ In a case under 17 & 18 Yict,
8. 17. c. 10 i, it was doubted whether the dit^abling or penal
section (sect. 298) of that Act applied where the helm was
ported a little, but not sufiiuiently to avert collision (/).
Under the present ena^^tment it could scarcely be con-
tended that an insufficient alteration of the helm, or an
infringement, even to the smallest extent, of one of the
steering rules which was applicable to the case could not,
by possibility, have contributed to the collision [m). In
such a case sect. 17 would, as pointed out by Lord Black-
burn in The Voorwaarts and The Ivhedlve (?v), exclude
the application of the well-known doctrine of Davies v.
Mann (o), which was applied in Tujf\. Warmnn (p).
A Regulation But a Regulation is not infringed within the meaning of
fringeil until sect. 17 if those in charge of the vessel did not in fact
there IS an know, and could not, without more than ordinary skill,
opportunity j j
(t) Per Lord WatHon, The Voor- App. Cas. 37, 41 ; see infra, p. 54.
waarU and The Khedive, 6 App. («) 5 App Cas. 876, 892.
Cas. 876, 901. (o) 10 M. & W. 546.
[k) See per Lord Watson, 5 App. {p) Ubi supra. See, however,
Cas. 903, 904. per Butt, J., in The Vera Cruz, 9
[l] The Bothnia, Lush. 32. P. D. h8, 94, as to the application
[m) See The Arraluon Apcar, 15 of l>aui,es v. Maun.
INTRlXOEMEN'r 01' THE REGULATIONS. 47
care, and neive, have kno^\'n, that the Rofjulation had ^^ c-omjAying
with it.
come into oj)eration. If by a wrong mana?u\Te one vessel
suddenly causes ris-k of collision to anotlicr, the latter will
not be held in fault under sect. 17 unless there is time for
those in charge of her, being seamen of ordinary care,
skill, and nerve to appreciate the situation, and unless also
there is opportunity for them to comply with the Eegida-
tion. " When a sudden change of circumstances takes
place, which brings a Regulation into operation, though
the tiling prescribed by the Kegulation is not done by the
person in charge, yet the Regulation can hardly be said to
be infringed by him, till he knows, or ought io have
known, and but for his negligence would have known, of
the change of circumstances" (^). 8o in T/ie Theo<lorc
II. Rand[r), it was held that sect. 17 did not apply where
the fact of a particular Regulation being applicable could
not with ordinary care have been known.
But this doctrine must be applied with caution, for in
the same case in which the above dictum of Lord Black-
burn occurs, the House of Lords held that there may be an
infringement of the Regulations within the meaning of
sect. 17, although those in charge of the ship do all that
could be expected of seamen of ordinary skill and nerve,
and although they have been guilty of no act uhich at
common law, and apart from sect. 17, would amoimt to
negligence.
The circumstances in this case, TJie Vooncaarffi and T//e ^^'^ ^'<""'-
KJiodive [fi), were as follows: — The two vessels, ocean The Kfudae.
steamships of 3,000 and 8,740 tons respectively, were ap-
proaching each other at night without risk of collision
on nearly opposite and parallel courses, the green light of
{q) Per Lord Blackburn, T/w 1887, was decided by Sir J. Han-
Toori(anrlsni\d The Khedive, 5 App. nen in accordance with these cases.
Cas. 876, 894; The T.nnny Baase, {r) 12 App. Cas. 247. See also
9 P. D. 81. Cf. per Brett, M. R., per T.ord Ilerschcll in The Memnon,
in The Beryl, 9 P. D. 1:^7. The G2 L. T. N. S. 84, 85.
Elphinstmie, Ad. Div. 27th May, («) 5 App. Cas. 876.
48 STATUTORY PRESUMPTION OF FAULT.
Tlie Voor- gacli being visible to tlie otlier on her starboard bow. At
«•««)•/« and ,^ • ,• ^ i^ ^ • ph i -rrrt
The Khtdive. tliis time both ves^sels were going at full speed. When
the vessels were somewhat less than a mile apart The
Voorivaarts ported and showed her red light to T/ic KJicdive.
This was a wrong manoeuvre, and caused risk of collision.
Thereupon the captain of The Khedive, without easing his
engines, put his helm hard-a-starboard, and at the same
moment gave the order to stand by the engines. One
minute and a half afterwards be put his engines full speed
astern. The collision occurred a minute and a half alter
this. The engines at the moment of the collision were
going full speed astern. They ought to have been
stopped and reversed as soon as the red light of The
Vooncaarfs appeared, at the moment when the order to
put The Khedice's helm hard-a-starboard was given. The
absolutely right manoeuvre was therefore not adopted by
The lOiedive, and it was held by the House of Lords
(Lords Blackburn, Watson, and Hatherley) that Art. 16
(of the Regulations of 18t)-'j) having been infringed with-
out necessity, The Khedive was in fault under sect. 17. In
the Court of Appeal it had been held that though the
captain of The Khedive was wrong in not stopping and
reversing at the moment when The Voonraarts' red light
was seen, yet that his error did not prove him to be defi-
cient in ordinary care, skill, or nerve, and that, therefore,
the collision not having been caused by negligence of
those ou board The Khedive, the owners of The Voortvaarts
were alone liable. In the House of Lords it was held that,
The Khedive having bc' n within the operation of Art. 16,
and not within the exceptions of Art. 19, or within the
exception of the concluding words of sect. 17, she was by
the words of that section to be deemed to be in fault, and
that the question whether or no her captain had been in
fact guilty of negligence was immaterial. The Voorwaarts,
whi':h by porting had brought about risk of collision in the
first instance, and had kept her engines going at full speed
INFRINGEMENT OF THE REGUI.A 1 ION'S. 49
up to the raomeut of collision, was lidd in fault both in
the Court of Appeal and in the House of Lords.
The decision in The Vooncaarts and The Khedive was,
shortly, this : that where A. is approaching B. so as to
involve risk of collision, and a collision may be avoided if
A. stops and reverses, and not otherwise, if A., having time
to do so, does not stop and reverse, she is in fault under
sect. 17. It may be that the case is not an authority for
any wider proposition than this ; but it is clear that the
ratio decidendi and certain dicta in the case point to a more
extended operation of sect. 17. The learned lords appear
to have considered that the policy of the legislature, as
shown by the enactment of sect. 17, was to substitute a
rigid adherence to the Regulations for the discretion as to
complying with the Regulations which a seaman was, under
the previous law, at liberty to exercise. It seems to have
been thought that a justification for the harshness of the
new enactment was to be found in the number of collisions
wliich would be avoided if a rigid and almost mechanical
adherence to the Regulations was substituted for the un-
certainty which is inseparable from an application dej)end-
ing upon the discretion of seamen (/).
Such appears to have been the view taken by the House
of Lords of the effect of sect. 17 ; and such clearly was the
ratio decidendi in The Vooncaarts and The Khedice. But,
as stated above, the facts of that case did not call for a
decision as to the effect of sect. 17, where the infringement
of the Regulations was, though unsuccessful as regards
averting collision, not only not negligent, but the only or
the best chance of escaping collision.
In The Benares (a) the Coui-t of Appeal was called upon The JBenares.
to decide what in such a case is the effect of sect. 17 as
(t) Whether it is desirable, or Seeper'Lindley,Ij.J.,iiiT/icMi'in-
possible, by Act of rurliaraent to iiou, 59 L. T. N. S. at p. 291.
fetter the exorcise of a soamuii'a {it) 9 P. D. 16, followed iu The
discretion iu the throes of a colli- Sapphire aud The Girdleness, Ad.
siou seems more than doubtful. Ct. Feb. 27th, 1884.
M. E
50
STATUTOKY PRESUMPTION OF FAULT.
The Benares, applied to tlie coiTesponding articles (Arts. 18 and 23) of
the Kegulations of 1880. The Court held, that The Voor-
waarts and The Khedive did not apply, and that a ship will
not he held in fault under sect. 17 heeause her captain does
not comply with the letter of the Regulations, if such non-
compliance is the only chance of escaping collision. In
such a case the Court held that departure from the rules
is " necessary in order to avoid immediate danger " within
the meaning of Art. 23, and that therefore sect. 17 does
not apply. The facts in The Bewares were peculiar, the
collision having been caused mainly by The Benares not
having a red light exhibited on her port side, and having
very shortly before the collision exhibited a green light on
that side. The following passage is from the judgment of
Brett, M.R.:—
" When The Benares' green light, and the green light
alone, was seen. The Gerarda did no wrong by starboard-
ing, for it was impossible, as it was then disclosed, for her
to see how immediate was the then danger of collision.
The vessels, however, eventually came so close to each
other that the actual position of things was discovered,
the port side of TJie Benares without a red light becoming
visible to those on The Gerarda. Under these circum-
stances what was the master of The Gerarda to do ? By
Art. 18, if there was nothing else in the circumstances, he
ought to have stopped and reversed. But the rules of
navigation are contained, not in one article, but in all the
articles, and Art. 23 is as much to be observed as Art. 18.
The navigation of vessels is to be conducted with a regard
to both of them. As I understand one part of TJie Khedive,
if The Benares had put The Gerardah officer in such a
position that every reasonable man would have done what
the officer of Tlie Gerarda did, yet if the Court could not
come to the conclusion that the case was brought within
Art. 23, The Gerarda would be held likewise to blame.
But in this case the question is whether it is brought
INFRINGEMENT OF THE KEGUJ.ATIONS. 51
â– witliin Art. 2'-^ and taken out of Art. 18? Was the The Benares.
necessity of the case such, and were the circumstances so
special, that they rendered a departure from Art. 18