ADM.]

statute law, and the counsel for the plaintiff have mainly I might almost say exclusively-relied upon certain recent statutes as having conferred this jurisdiction upon the court. It becomes necessary, therefore, to examine these statutes. In the year 1846, the statute 9 & 10 Vict c. 93, commonly called Lord Campbell's Act, entitled "An Act for compensating the Families of Persons killed by Accidents," was passed. That statute recited that "No action at law is now maintainable against a person who, by his wrongful act, neglect, or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrongdoer in such case should be answerable in damages for the injury so caused by him," and it proceeds further to enact, That whensoever the death of a person shall be caused by any wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued), have entitled the party to maintain an action, and to recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." The effect of this statute, then, was to give a new right previously unknown to the common law, according to which all suits founded on a personal injury or tort died with the person. The statute proceeds to specify the person for whom and the manner in which the action shall be brought, and the remedy which shall be applied for the injury, as follows: (Sect. 2) "That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damage as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties in such shares as the jury by their verdict shall find and direct." This statute, though it effected the material alteration in the common law that I have mentioned, conferred no jurisdiction upon the Admiralty Court. The next statute I have to consider is the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), s. 514, which enacted as follows:-"In cases where any liability has been, or is alleged to have been incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats, or goods, and several claims are made or apprehended in respect of such liability, then, subject to the right herein before given to the Board of Trade of recovering damages in the United Kingdom in respect of loss of life or personal injury, it shall be lawful in England or Ireland for the High Court of Chancery, and in Scotland for the Court of Session, and in any British possession for any competent court, to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability subject as aforesaid, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject matter; and any proceeding entertained by any such Court of Chancery, or Court of Session, or other competent court, may be conducted in such manner and subject to such regulations as to making any persons interested parties to the same and as to the exclusion of any claimants who do not come in within a certain time, and as to requiring security from the owner and as

66

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to payment of costs as the court thinks just." The Admiralty Court Act 1861 (24 Vict. c. 10), by sect. 13, conferred upon the High Court of Admiralty the same jurisdiction which the Court of Chancery possessed under the former statute. It is clear, therefore, that if in this very case of damage there had been several claimants, including the present plaintiff, and if the defendant had instituted a suit in this court for the purpose of limiting the amount of his liability and for the distribution of such amount rateably amongst the claimants, it would have been the duty of the court to have entertained the suit. And it follows from this proposition that the intervention of a jury would not be a necessary or only means of enforcing the remedy against a wrongdoer under Lord Campbell's Act. The Admiralty Court Act 1861, enacts, by sect. 7," that the High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship." Following the precedent set me by my learned predecessor, I have already ruled that the words of this section embrace the case of damage inflicted by a vessel upon other property than ships and upon persons: (The Sylph, 11 L. T. Rep. N. S. 521; 37 L. J. 14 Adm.; L. Rep. 2 Adm. 24.) It is true that Lord Campbell's Act contemplates only an action against the person, but then sect. 35 of the Admiralty Court Act 1861 enacts as follows: "The jurisdiction conferred by this Act upon the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam." And it was admitted by the counsel for the defendant that the argument to be derived from Lord Campbell's Act, was as strong against the jurisdiction of this court in rem as in personam. In the much considered case of Taylor v. Dewar, 5 B. & S. 58; 10 L. T. Rep. N. S. 267; 23 L. J. 141, Q. B., I find the following passage: The vessel insured under this policy, the Rouen, having come into collision with and run down another ship, called the Magyar, and the master and five of the crew of the latter having been drowned, the owners of the Rouen have, by the judgment of the Court of Admiralty, been condemned to pay damages to the personal representatives of the deceased, and such damages have been paid accordingly." The jurisdiction of the Admiralty Court appears, from the report of the argument, to have undergone some discussion; but it seems to have been assumed that this court did possess and had rightfully exercised such jurisdiction. I referred to this decision in the previous case of the Sylph (ubi supra), but I had not then caused any inquiry to be made into the history of the cause in the Admiralty Court. But since the institution of this suit I have caused such inquiry to be made, and the result is very remarkable. No trace can be found that either the court itself or the registrar acting on behalf of the court, came to any decision upon the question of the payment of damages to the personal representatives of the deceased; nor indeed, as far as I can find, entertained the question at all, perhaps is was an arrangement made out of court; certainly the declaration assumed the fact that the Court of Admirnity had decided on the case. This case, therefore does not furnish the assistance to the court which the passage in the judgment, to which I have referred, would at first sight appear to afford. The question is by no means free from difficulty; but upon the whole I have arrived at the conclusion that I ought to pronounce for the jurisdiction of this court, and accordingly, though not without doubt and hesitation, I do so. But I will give leave to the defendant to appeal from this decision, should such be his desire."

Proctors for plaintiff, Pritchard and Sons.
Proctors for defendants, Toller and Sons.

ADM.]

[ADM.

Reported by OLIVER J. BURKE, Esq., Barrister-at-Law.

Jan. 11 and 12.

(Before TOWNSEND, J., assisted by Captains Warren and Cosby, Nautical Assessors).

THE GENERAL LEE, OF DUBLIN.

ceeding to sail her more in shore and out of the perceived the helm of the said steamer (which was rapidly approaching the Leinster) was starboarded and that the starboard light of the steamer became visible on board the cutter. When the said starboard light became visible as aforesaid the master of the Leinster perceiving that the steamer, which was then close to the cutter, was endeavouring to

course to avoid steam ship.

Shortly after midnight on the 21st Aug. 1868, the night being dark and hazy, the pilot cutter L., laying to on the port tack with her head to the S. W., off Howth Head, sighted the bright and red lights of the steamer G. L., about two miles off, then steering N.E. Thereupon the cutter filled her sails and stood on, still on the port tack, to keep still farther from the steamer's course. The steamer, which had seen the cutter's light, and mistaken it for the green light of a vessel on the starboard tack, had starboarded to pass to the westward of it, and was rapidly approaching. At half-a-mile distance the mistake was discovered, and the steamer's helm ported. The L. hove round on the starboard tack to get out of the way of the steamer, which, however, struck the L., she having previously sighted the lights of the L. on the port bow, and the L. sank a few minutes after:

Held, that the L. sailing ship was bound to keep her course under the 18th sailing rule of 1863, and not having justified her departure there from under the 19th rule, she must be visited with the consequences of such departure:

Held, also, that it was the duty of the steamer to have kept out of the way of the sailing vessel, and that the captain of the steamship should have slowed his speed and stopped his engines, until he had been able to ascertain the L.'s position so as to take timely measures to avoid her:

Held, also, that inasmuch as both vessels were to blame the damages must be equally divided, each party to bear their own costs.

This was a cause of damage instituted on behalf of John Good, the owner of the pilot cutter Leinster, on behalf of the master and crew thereof, for their money, clothes, and private effects, against the screw steamer General Lee, Charles Millar, master.

The petition stated that the Leinster was a cutter of 4136 tons register, and was, at the time of the collision hereinafter mentioned, manned by a crew of six hands, and under the command of one James Doyle, an experienced and skilful master. That said cutter was at the time aforesaid employed as a pilot cutter for the port of Dublin, and the said master and crew were all duly licensed pilots for the said port. The said cutter was built at the port of Dublin in the year 1862, and at the time of the said collision was in thorough repair. That shortly before the hour of one o'clock a.m. of the 22nd Aug. 1868 the Leinster, employed as such cutter as aforesaid on the east station, was lying hove to in the channel N.E. of the nose of Howth, with her head to S.W., and she had her regulation light properly placed on her mast head, and burning brightly. That the night was dark and hazy with rain, and the wind was blowing a fresh breeze from S. by W. That, about the said hour of one o'clock, a.m., the mast-head light and port lights of a steamer were sighted about two miles off broad on the port bow of the Leinster. That when the lights of said steamer were so discovered the master of the Leinster ordered the bowline, by which the foresail was kept to windward, to be let go and the sheets got down to star board, which was done, and he put the helm to port and thus got command of the cutter, and was pro

was making for the harbour of Howth, ordered the jib-sheet of the cutter to be let go, and put her helm hard down, in order to go about on the starboard tack and get out of the steamer's way. That after the jib-sheet had been let go and the helm put down, as aforesaid, but before the cutter had been filled on the starboard tack, the master of the Leinster observed the steamer suddenly port her helm and close very fast on the cutter. Those on board the Leinster shouted and hailed to those on board the steamer, and did everything they could to avoid the collision which was then inevi table; but the steamer, under full steam, came stem on and struck the Leinster on the starboard bow, and cut her down below the water's edge. The bowsprit of the steamer passed outside the forestay of the Leinster, and the cutter having filled almost immediately with water, she hung by her fore-stay on the bowsprit of the steamer till the bowsprit broke, when the Leinster immediately sank and has become totally lost. The petition then stated that after great peril the crew of the Leinster got on that the said steamer was the General Lee, the defenboard the General Lee, and it was then ascertained dant herein, and that she was on her voyage from Dublin to Belfast, with a general cargo. That had the General Lee been kept in her proper course, she would not have come within two miles of the place of the collision, and the said collision was solely caused by the said steamer being out of her proper course, and by the carelessness, neglect, default, and bad seamanship of those on board the General Lee, and no blame is attributable to the Leinster or those on board of her. That after the master of the Leinster had ascertained that all his crew were safe on board the steamer, he went to the bridge of the General Lee and asked the captain to land him and his crew at Howth, but he refused to do so, and brought them to Belfast, whence they had to return to Dublin by train the following day. After the said captain had refused to land the cutter's crew, and as an excuse for not landing them, he stated to the said master (James Doyle) that it was a disgraceful thing to send the steamer to sea with such a crew, as many of them were drunk and incapable to work the vessel, and he expressed his intention to bring the crew before the police authorities for their offences and general misconduct. At the time of said collision the value of the cutter was 1450, and her owner has suffered consequential loss amounting to 60%, making toge ther the sum of 1510, all which has been lost to the owner by said collision. The master and crew also claimed damages 2007.

To the above petition the defendants answered as follows: that the steamer was 437 tons register tonnage; was built of iron in 1864, is rigged as a schooner, and classed at Lloyds for 9 years, and her crew consists of 21 hands. That at the time of the occurrence hereinafter mentioned, the steamer was on a voyage from Cadiz to Dublin, Belfast, and Glasgow, and she was under the command of Charles Millar, a skilful and experienced master, and she had her usual crew on board, being competent to work her, and in every way fitted for the said voyage. That the said steamer in the prosecution of her said voyage, having arrived at Dublin, and discharged part of her cargo, left Dublin for

Belfast on Friday evening, the 21st Aug., at or about 10 o'clock, p.m. That on the same night, it being then midnight, the said steamer was off the Bayley light, about N.E. of it, and distant about two miles, the tide being about high water, the weather hazy, stormy and wet, and the wind southerly-a stiff breeze. That the steamer had her lights in their places, and burning brightly in accordance with the regulations made in pursuance of the Merchants Shipping Amendment Act of 1862, and a sharp look out was kept, and a proper watch set in charge of the deck- the master being on the bridge. That at the time aforesaid the look-out on board the said steamer reported a light nearly ahead to the master, and in the then state of the weather and haze the said light appeared to the master to be a green light of a vessel on an easterly course, and he accordingly starboarded the helm of the said steamer, in order to go astern and keep clear of the said vessel. That shortly after so doing the light cleared, and the master discovered the said light to be the mast head light of a pilot cutter, and discovered that she was on the port tack, with her head to the westward, and thereupon he at once put the helm of the said steamer hard-a-port, so as to keep clear of the said cutter, and at the same time eased his engines. That after the said steamer was under the influence of her port helm, and on a course which would have kept her completely clear of said cutter, the said cutter suddenly went about in stays from the port tack on which she had been, and came across the bows of the said steamer, and thus came into collision with the said steamer, the starboard side of the cutter meeting the bows of the steamer near the main rigging of the former vessel. That when the master of the said steamer saw the cutter going about in stays he at once stopped his engines and reversed full speed, but notwithstanding the two vessels came into collision as aforesaid, when the cutter was lost. That the said collision was caused by the negligence, recklessness, mismanagement, and unseamanlike conduct of those in charge of the Leinster, in not keeping the said cutter on her course, and also inasmuch as the said Leinster did not show the proper lights, or observe the regulations for preventing collision at sea, issued in pursuance of the Merchant Shipping Act Amendment Act 1862, and alsoinasmuch as the said Leinster did not keep any sufficient look-out, and the said coltision was not occasioned by anything done or left undone, or by any default committed by those in charge of the said steamer. That none of the crew in charge of the steamer were drunk, but the

said crew were each and all of them sober and com

petent to work the steamer, and that the alleged conversation between Doyle, the master of the cutter, and the captain of the steamer, as to the unfitness of the crew, never took place. That the cutter was worth 8007. and no more, and there no consequential damages as alleged by the petitioner, and the loss sustained by the crew did not as alleged amount to 2002.

were

Dr. Todd, Q.C., with Exham, Q.C., and Dr. Walter Boyd, for the plaintiffs. It was the duty of the steamer to have kept out of the way of the Leinster, and the Leinster was justified in altering her course, which she was bound to keep unless in cases of danger of immediate collision under the 19th article: (The Velasquez, L. Rep. 1 P. C. 494.; 16 L. T. Rep. N. S. 777.) There a steamer was sighted by a sailing vessel; the steamer took no steps until the vessels were very near each other, when she starboarded her helm, and the sailing vessel ported her helm to avoid collision, which notwithstanding took place. It was there held that the steamer alone was to blame, as it

[ADM.

was the duty of a steamer to keep out of the way of a sailing vessel provided she could do it by either starboarding or porting her helm; and that on the other hand it was the duty of the sailing vessel to keep her course, and that she could be only excused from deviating from it by showing that it was necessary to do so in order to avoid immediate danger: (The Una v. Thomas Lee, 14 L. T. Rep. N. S. 834.) The Leinster was bound to get out of her course to avoid collision, and in so deviating therefrom she complied with the provisions of the 19th article.

Dr. Elrington, Q.C. (with Gibbon and Dr. Corrigan) for defendants. By the 15th article (Holt's Rule of the Road, 165), if two ships, one of which is proceeding in such directions as to involve risks of a sailing vessel and the other a steam vessel, are collision the steam ship shall keep out of the way of the sailing vessel; and by the 18th article, while the steam ship was so keeping out of the way the sailing That being so, the ship should keep her course. the path of the General Lee, which was bound on Leinster ought to have kept her course, and not crossed her own responsibility to take whatever course she might think fit. It was said in the petition and in the answer that the night was hazy, however there has been no charge made against us under the 10th article. Had the cutter kept her course and not gone about no accident would have happened. 16 L. T. Rep. N. S. 755; The Spring, L. Rep. 1 Ad. (The Agra and Elizabeth Jenkins, L. Rep. 1 P. C. 501; 99.) It is not now open to the plaintiffs to rely on the absolute necessity of departing from the 15th and 18th rules, inasmuch as such a case is not made in the petition.

TOWNSEND, J.-This cause was instituted by the owner, master and crew of the Leinster, to recover damages for the total loss of that vessel in a collision which occurred on the 22nd Aug. last. The Leinster was one of the pilot vessels of the port of Dublin. The General Lee was an iron-built screw steamer; she left Dublin about ten o'clock at a voyage night, on Friday the 21st Aug., on to Belfast and Glasgow. It appears that she was steering N.E. The sea watch had been changed at midnight; the look-out was on the forecastle, and the captain on the bridge. The steamer's regulation lights were properly placed, and she was going at full speed, her head being N.E.. The look-out man, Campbell, reported "light a-head." The captain had seen the light just before. The wind was then S. by W. In about two minutes afterwards, the look-out man called out "a light right a-head." When the light was first seen, it was a little on the first saw this light, he did not take it for a green starboard bow of the steamer. When the look-out light though Capt. Miller mistook it for a green light. Supposing it to be the light of a vessel standing to the eastward, or as he now says, he thought it might have been the light of a trawler,

the steamer's helm was starboarded and then steadied, and she continued her course for about ten minutes, at the end of which time the captain clearly perceived the cutter's light to be a bright white light, and saw her mainsail to the eastward of it. The mate of the cutter says, and he was not contradicted, that he had shown a flash light six times that night, and immediately before he went below, which was about ten minutes before the collision. Some attempt was made to throw on the cutter the blame of not showing the flash light; but I think she at all events complied, in that respect, with the regulations. I am also clearly of opinion that there was no want of vigilance on the part of the cutter, and that she had a sufficient look-out. It has been contended by the defendant's counsel that the manoeuvre of the Leinster was a

Reed contended that from the examination of the debtor it was clear that the deed had been assented to by relatives of the debtor for the debtor's benefit, as the assets would pay more than 2s. 6d. in the pound, and the debtor had also assigned all his interest under his father's will very shortly before the date of the deed of composition, and that among the list of assenting creditors was one James Riley, the brother-in-law of the debtor for 270%, whereas no amount was mentioned in the assent, and, according to the debtor's statement, Riley was not aware of more than 50%., being due at the time he signed the assent.

Mr. Commissioner BACON said: At first I felt some hesitation in regard to the jurisdiction of the Court of Bankruptcy to order the registration of a deed to be cancelled; but on reflection I think the court has jurisdiction to recall any orders that may have been improperly obtained. In this case it has been proved the assent of one of the creditors, the brother-in-law of the debtor, was obtained by a concealment from him of the existence of the greater part of the debt in respect of which he was desired to assent, and by a suppression of the facts connected with the contraction of the debt which, if disclosed, would in all probability have induced him to withhold his assent. Such an assent would certainly not bind a creditor who had given it, and still less could it be held to bind other creditors by force of the statute. I am of opinion therefore, that the deed was not duly assented to by the necessary majority of the creditors. With respect to the other objection, as to the reasonablenesss of the proposal made to the creditors, there is ample evi- | dence to my mind to show that the debtor's estate would have produced a much larger sum than that offered to the creditors, and, reviewing the facts, I think there is such an absence of bona fides on the part of the debtor 'and some of the creditors who assisted him in carrying out the proposition of 2s. 6d. in the pound, as to bring the case directly within the principle laid down in Ex parte Cowen, Ex parte Deacon, and Hart v. Smith. I therefore order the registration to be cancelled, and that the debtor pay all the applicant's costs of and occasioned by the application.

Registration to be cancelled accordingly. Solicitors for the debtor, Jay and Pilgrim, Norwich.

Solicitor for the dissenting creditors, William Sadd, jun., Norwich.

[PRIV. CO.

respect to the other not such a material fact as is necessary to be stated upon the issue raised between the parties, and therefore an objection to the pleadings on this ground failed. In such cases the material question is, which of the vessels drifted on the other.

These were appeals from a judgment of the Court of Admiralty, pronounced by Sir R. J. Phillimore on Nov. 11, 1867.

the owners of the brigs Alice and Rosita respectively, These were cross causes of damage, promoted by to recover damages for a collision that occurred between the vessels in Margate Roads on Feb. 6,

1867.

Both vessels were, before the collision, lying at anchor in the roads. In a heavy gale from the westnorth-west, one or both of the vessels dragged their anchors, and a collision took place. The principal question at issue was, which of the vessels drove upon the other.

The learned judge of the court below, acting mainly upon the advice of the Trinity Masters, held (in both causes) that the Alice was alone to blame. The owners of the Alice appealed against this decision, for the following reasons:-(1) Because the evidence showed that the wind was much stronger than the tide, and that the Alice, on the morning of the collision, was to the south-east or leeward of the Rosita, and that therefore the Alice would have drifted, if at all, before the wind, and away from the Rosita. (2) Because the position of the Rosita's anchors, the mode of the collision, the nature and extent of the damage, and the fact that no injury was done either to the rigging of the Alice, or the jib-boom of the Rosita, support the conclusion that the Rosita drove, and not the Alice. (3) Because the case of the respondents, as pleaded in the petition in their action, does not correspond with their case as proved.

It will be seen that this last reason in support of the appeal, viz., the alleged variance between the circumstances proved and the allegations in the pleadings on behalf of the Rosita, is considered fully in the judgment of the Court of Appeal.

Other material facts, and the substance of the arguments, are sufficiently stated in the judgment. Milward, Q. C. and Dr. Pritchard appeared for the appellants.

Dr. Deane, Q. C. and Vernon Lushington, Q. C. were for the respondents.

Judgment was delivered, on Nov. 27 and 28, 1868, by Lord CHELMSFORD.-Their Lordships have been placed in some little difficulty in this case, and they

Reported by Douglas Kingsford, Esq., Barrister-at-Law.

Nov. 27 and 28, 1868.

(Present: The Right Hon. Lord CHELMSFORD, Sir JAMES W. COLVILE, Sir E. V. WILLIAMS, Lords Justices PAGE WOOD and SELWYN.)

THE ALICE AND THE ROSITA. Collision-Vessels at anchor-Material factsVariance between pleadings and evidence. The court is extremely anxious to adhere to the rule that a party seeking redress for an injury can only recover secundum allegata et probata. But where a collision took place between two vessels (both at anchor) in consequence of one of them dragging her anchor, and the pleading alleged that one vessel was riding to the south-west of the other, whereas the evidence proved that it was south-east:

Held, that in the case of a collision between two vessels originally at anchor, the bearing of the one vessel with

suit, upon this ground, that the cause of injury is not properly alleged in the pleadings. There have been recent decisions (see The Haswell, Br. & Lush. 247; The Amalia, Id. 314; 10 L. T. Rep. N. S. 826), in which their Lordships have held it to be necessary that a party seeking redress for an injury can only recover secundum allegata et probata. In a case (Malcolmson v. Clayton, The Ann, 13 Moo. P. C. Ca. 198; Lush. 55) in which the circumstances proved did not establish the allegations in the pleadings, although upon the true state of facts the comlearned judge of the Court of Admiralty having plainant would have been entitled to recover, the considered to be an erroneous ground, yet they felt decided against him, upon what their Lordships themselves bound to declare that the judgment ought to be affirmed, not upon the ground on which it was pronounced, but because the case set up by the appellants had not been proved by the evidence. In the present case, in the third allegation in the answer of the Rosita, it is alleged that the brig Alice had been riding about half a mile to the south-west