J.C. Smith v. The Bank of New South Wales, etc. 1872 given bail. Their Lordships find that that is not the rule in Solicitors for the Appellant: Westall & Roberts. (1) 1 Swa., 264. THE OWNERS OF THE BARQUE OR VESSEL AMERICA AND HER CARGO, Respondents. THE MARPESIA. [Law Reports, 4 Privy Conncil Cases, 212.] ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Collision Inevitable accident, definition of — Onus of proof — Pleadings — Costs. Inevitable accident is that which the party charged with the damage could not possibly prevent by the exercise of ordinary care, caution, and maritime skill: The Virgil (') followed and approved. Held, affirming the principles laid down in The Bolina (2), that where in a cause of collision the defence of inevitable accident is raised, the onus of proof lies, in the first instance, on those who bring the suit against the vessel and seek to be indemnified for damage sustained; and does not attach to the vessel proceeded against until a prima facie case of negligence and want of due seamanship is shown. If a Plaintiff in a collision suit intends to rely upon a particular act of negli gence by the Defendant, he is bound specifically to allege that act in his pleadings, and it is not sufficient that the act may be included generally in an allegation in 213] the pleadings, which do not clearly state such particular *act; as it is likely to mislead the Defendant, and prevent his being prepared to meet that particular case. Two sailing vessels approaching stem on in such a manner as that, under the sailing rules, each would be bound to port, being in a dense fog, only sighted each other at a distance of about two hundred yards. The defendants' vessel, having been close hauted on the port tack, was then preparing to go about, and had eased off her head sheets. Both vessels immediately ported, but came into collision. Only one minute elapsed between the time of sighting and the collision. The Plaintiffs' petition alleged, that the defendants' vessel neglected to port, and it was stated, in answer to a question by the Judge of the Admiralty Court, that the head sheets of the Defendants' vessel were not again hauled aft. On this evidence that vessel was held to blame by the Admiralty Court, on the ground that she had not executed all the proper manoeuvres which she might have executed after sighting the other vessel : Held (reversing the decision of the Admiralty Court), that the collision was the result of an inevitable accident, the defendants' vessel having done all that could be effected by ordinary care, caution, or maritime skill in the short space of time that elapsed; and that the Plaintiffs, if they meant to rely upon the fact that the head sheets had not been again hauled back, ought to have alleged that fact in their petition as the cause of the collision; the allegation of neglect to port not sufficiently indicating the nature of such omission. It is a rule in the Admiralty Court, in cases where a collision is found to be the result of inevitable accident, to make no order as to costs, unless it can be shown that the suit was brought unreasonably and without sufficient prima facie grounds. This rule followed by the Appellate Court: The London (†) approved. *Present:- SIR JAMES WILLIAM COLVILLE, SIR MONTAGUE EDWARD SMITH, and SIR ROBERT PORRETT COLLIER. (1) 2 W. Rob., 205. (*) 3 Notes of Cases, 210. () Br. & L., 82. J.C. The Marpesia. 1872 This was an appeal from a decree of the Court of Admiralty, in a cause of damage civil and maritime, brought by the respondents the owners of the barque America, and the owners of her cargo, against the ship Marpesia, belonging to the appellants, for the recovery of damages in respect of a collision which happened between the two vessels. The collision took place at about 10 a.m. on the 21st of May, 1870, in the St. George's Channel, near the Saltees Light Ship. The Marpesia was prosecuting a voyage from Liverpool to Melbourne, South Australia, laden with a general cargo. She was a ship of 1,443 tons register, and was 237 feet in length. The wind was about S.W., and until just before the collision the Marpesia was sailing by the wind on the port tack, heading about from W. by N., to W.N.W., her speed being about five knots. The America was bound from Queenstown to Glasgow with a cargo of sugar, and was proceeding under all square sail, with a free wind heading about E. by S. *From the evidence, it appeared that a dense fog pre- [214 vailed at the time of the collision, the utmost distance at which it was possible to see a ship being, according to the evidence. of the master of the America, about from one hundred to one hundred and fifty yards, and in his deposition before the Receiver of wrecks he admitted, that there was no time to alter sail on either vessel. It was proved on the part of the Marpesia, that her helm had been put to starboard for the purpose of putting her from the port on to the starboard tack, and that she was under the influence of her starboard helm, and that her head sheets had been eased off when the head sails of the America were seen ahead emerging through the fog, and that the helm of the Marpesia was immediately put hard aport, but that the collision nevertheless occurred, the jibboom of the Marpesia passing over the America, and the stem of the Marpesia taking the port side of the America. The defence relied on by the appellants was that the collision was the result of inevitable accident. The judge of the court below (The Right Hon. Sir Robert Phillimore) held that the Marpesia was solely to blame, as she ought to have hauled aft her head sheets and let go all the lee braces, and pronounced the Marpesia to blame for the collision. The appeal was from this decree. Mr. Butt, Q.C., and Mr. E. C. Clarkson, for the Appellants: Our contention is, that the evidence established the fact that the collision was the result of inevitable accident, and could not have been avoided by the exercise of ordinary care, caution, or 1872 The Marpesia. J.C. maritime skill by either vessel: The Virgil (1). There was no negligence on the part of the Marpesia. It was proved that, in the state of weather, the America was seen by us as soon as it was possible for those ou board the Marpesia to discern her, and that immediately proper measures were taken to avoid a collision, though the time proved insufficient to prevent it: The Lochlibo (2). Owing to the short distance at which the America was sighted, it was impossible for the head-sheets, of the Marpesia to have been hauled in time, or to haul her aft head-sheets, as this was a part of the manoeuvre of porting her helm, and 215] would have assisted the ship in more effectually answering her helm: and the ground on which the judgment of the judge of the admiralty proceeds is, that we did not do that which was not in our power to have done, to make our vessel answer her helm after porting, and so avoid the collision. Therefore, he erroneously concluded that we did not obey the steering and sailing rules, art. 11, by porting helm in time, for which negligence he held the defendants liable. This point, however, was not raised by the pleadings or insisted on in the argument, but alone was suggested by the court. If the plaintiff's intended to raise such a point, or to rely on it, they were bound to have stated it in their pleadings, so as to give the defendant an opportunity of meeting such an allegation by evidence. The court below was not entitled to give judgment on an issue not raised by the pleadings: The Ebenezer (3); The Speed (). The plaintiff's were bound to prove their case secundum allegata et probata: The North America (5); The Ann (6). Mr. Milward, Q. C., and Mr. A. Cohen, for the Respondent: First, it was proved by the evidence, that the America was not in any way to blame for the collision, and that the collision was not, as alleged, an inevitable accident by reason of the Marpesia being in stays, or otherwise. She was bound to have assisted her helm by hauling in her head-sheets and letting her lee braces go. It is alleged in the pleadings, that the Marpesia neglected to port her helm. That allegation refers not merely to the act of putting her helm to port, but includes all other measures which a seaman would, in the exercise of nautical skill, adopt for the purpose of throwing his ship's head to starboard, and so assisting his port helm. It was not necessary to allege in the pleadings in specific terms that the Marpesia neglected to do this, or to let her lee braces go. Secondly, with respect to the doctrine of inevitable accident: the rule at Common Law (1) 2 W. Rob., 201-205. (2) 3 W. Rob., 310–318. (3) 2 W. Rob., 296–209. (4) Ibid, 225-227. (5) 12 Moore's P. C. Cases, 331. J.C. The Marpesia. 1872 is, that a plaintiff is bound to give primâ facie proof that the defendant is guilty of negligence, even where the defence of inevitable accident is set up, and not until that fact is established is the onus of proof shifted to the defendant; but a different rule prevails in the Admiralty Court when inevitable accident is pleaded, it is the practice for the defendant to [216 begin, and the onus is, therefore, thrown upon them. The Appellants are bound, therefore, to satisfy the Court that they did all they could to avoid the accident, and we contend that they have failed to do so. Thirdly, with respect to the default of the appellants, we contend that the evidence shows that there was a want of ordinary care and nautical skill on the part of the Marpesia, in not taking the proper steps, as pointed out in the judgment of the Court below, to avoid the collision. Even if the decree of the Court below should be reversed, the respondents ought not to be condemned in costs, as they had good grounds for instituting the suit: The London (1); The Itinerant (2). Judgment was pronounced by SIR JAMES COLVILLE: This is a case of collision brought by the owners of the barque America against the owners of the ship Marpesia, the America having been run down by the Marpesia in St. George's Channel, on the 21st of May, 1870. The points raised by the appeal lie in an extremely narrow compass. It is admitted, on all hands, that the collision took place in daylight, about ten o'clock in the morning, but in a very thick fog, in which the vessels could only discern each other at a very short distance. It is found by the learned Judge of the Admiralty Court, that the distance at which they could have been visible to each other, was not more than from two hundred and fifty to three hundred yards. It is now admitted on the side of the Marpesia, that no blame is attributable to the America; and it would further appear that neither in the Court below, nor now, is it seriously contended, that the Marpesia was in fault in any of the particulars which are specially stated in the petition of the America, unless it be in one to be afterwards considered. It is no longer contended, that she was proceeding at an improper rate of speed considering the state of the weather; or that a good look-out was not kept on board that vessel; nor is it now contended, that her helm was improperly starboarded, or that she made default in not keeping out of the way of the America, as she was bound to do. (1) Br. & L., 82. () 2 W. Rob., 236. |