Burden of proving inevi Where a collision is the result of inevitable accident the table accident. burden of proving that it was so does not in the first instance attach to the ship alleging it. But where a primá facie case of negligence is made out, then it lies on the ship alleging inevitable accident to prove it (0). Vessel infringing the Regulations It seems that a vessel in default for not having lights, or for not complying with the Regulations, cannot, at least cannot plead where such non-compliance by possibility might have inevitable accident. Disabled ship. contributed to the collision, successfully plead inevitable accident (p). But such a defence may be good where the circumstances of the case made a departure from the Regulations necessary, or where her inability to take the proper measures was caused by no fault of her own. A collision may be an inevitable accident so far as the ship sued is concerned, although it was caused by fault elsewhere; as in the case of a ship which is thrown against another by the swell of a passing steam-ship, or by a third ship coming foul of her (q). Where a ship is unable to take the proper measures to avoid a collision owing to her being disabled, or for some reason for which she is not responsible, it is the duty of the other ship to avoid her if she can. But a collision occurring in consequence of her disabled state will be held to be an inevitable accident, if the other vessel was ignorant of it, and was not in fault for not being aware of it, or for not keeping out of the way (r). The Aimo, close-hauled on the starboard tack, saw the red light of The Amelia, a vessel closed-hauled on the port tack, a little on her port bow. The Aimo kept her course. The Amelia, having lost her head-sails in a previous collision, was unable to and see The Merrimac, 14 Wall. 199, (o) The Bolina, 3 Not. of Cas. 208; (p) 36 & 37 Vict. c. 85, s. 17; see supra, p. 14, seq. (q) See 1 Parsons on Ship. (ed. 1869), 533; The Sisters, 1 P. D. 117; The Hibernia, 4 Jur. N. S. 1244. (r) The John Buddle, 5 Not. of Cas. 387. bear up, inevitable In the following cases the Courts have held that the Instances of collisions occurred without fault in either ship, and that accident. they were the result of inevitable accident. A steamer rounding-to in the Thames on a dark night against a strong flood-tide under a starboard helm, with her head to the southward, was seen by a brig coming down. Notwithstanding that all that could be done was done by both vessels, a collision occurred. It was held to be a case of inevitable accident. The Court said that if the steamer had put her helm to starboard with a view to bring up after seeing the brig she would have been to blame (t). A ship, which had made fast by order of the port authority to a private buoy, was held not to be in fault for a collision caused by the parting of the band round the buoy (u); and a collision caused by the parting of the band was held to be an inevitable accident. In the absence of evidence of negligence on the part of the crew, the jamming of the cable round the windlass, when the anchor was let go, was held to be an inevitable accident (x). The parting of a cable in a gale of wind (y), and of moorings in calm weather (z), has been held to be an inevitable accident. But if there is negligence in not letting go an anchor, or in not having an anchor ready to let go when the vessel is adrift, she cannot sustain the defence of inevitable accident (a). Where a collision occurred in consequence of the break (s) The Aimo and The Amelia, 2 Asp. Mar. Law Cas. 96; and see The Venus, 1 Pritch. Ad. Dig. 129. As to a vessel disabled by her own fault, see supra, p. 8. (t) The Shannon, 1 W. Rob. 463. (u) The William Lindsay, L. R. 5 P. C. 338. (x) The William Lindsay, supra; The Peerless, Lush. 30. (y) The London, 1 Mar. Law Cas. O. S. 398. (z) The Ambassador, Ad. Ct., Feb. 12th, 1875, cited in The Pladda, 2 P. D. 34, 37. (a) The Pladda, 2 P. D. 34; The Kepler, ibid. 40. As to such a plea by a ship which has given another a foul berth, see The Secret, infra, p. 220. ing of part of the steering gear, there being a latent defect in the metal, it was held to be an inevitable accident (b). But if the gear is manifestly insufficient or weak, the defence of inevitable accident cannot be sustained (c). Where a ship, A., at anchor in the Thames, was run into by another, B., and was, without fault on her own part, driven by B. against a third ship, C., it was held that, so far as A. was concerned, the collision between her and C. was an inevitable accident (d). A ship which had been ashore on a sand, was driving over it and came into collision with another brought up in deep water to leeward of the sand. To have let go her anchor before she was clear of the sand would have been dangerous to herself, and without letting go while on the sand she could not keep clear of the ship at anchor. A collision which followed was held to be inevitable (e). A dumb barge in the Thames, driving with the tide, came into collision with a steamer going up against the ebb at the rate of two knots. There was evidence that the barge could not have been seen sooner than she was seen. In the absence of evidence of negligence on the part of the steamer, the collision was held to be an inevitable accident (ƒ). Where two ships, by no fault of their own, suddenly find themselves in a position in which a collision is imminent, and one of them omits to execute a manoeuvre which possibly might have averted the collision, she will not necessarily be held in fault for not having taken the measure suggested. Where two large sailing-ships, one in the act of going about, and the other going free, sighted each other in a dense fog at a distance of less than 300 (b) The Virgo, 3 Asp. Mar. Law Cas. 285. (c) The M. M. Caleb, 10 Blatchf. 467. (d) The Hibernia, 4 Jur. N. S. 1244. (e) The Thornley, 7 Jur. 659. (f) The Swallow, 3 Asp. Mar. Law Cas. 371 yards, and a collision occurred in less than a minute, it was held that the ship in stays was not in fault for not having hauled aft her head-sheets to assist her helm, although if she had done so the collision might have been averted. The collision was held to be a case of inevitable accident (g). In the following American cases the defence of inevitable American accident has been sustained. A vessel in the open sea overtook another at night, the darkness being so great that she could not see the vessel ahead in time to avoid her (h). A sailing-ship in a narrow channel being suddenly compelled to let go her anchor to save herself from going ashore, in consequence of the wind failing, a steam-ship close astern unavoidably ran into her (i). A large steamer was entering a harbour by a course that was not the usual one, but which was a course she had a right to go. As she was rounding the stern of a hulk she suddenly saw and ran into a schooner which the hulk had prevented her seeing before. The schooner, which had just cast off from her tug, was setting her sails and drifting with the tide in a helpless condition. The collision was held by the Supreme Court to have been inevitable (k). But where a schooner in a leaky condition, in order to avoid sinking in deep water, cast off from a wharf alongside which she was lying, and, before she was got under command, drove against another vessel, it was held that the collision was not an inevitable accident (1). A ship improperly attempting to pass another ashore in a narrow channel failed to sustain the defence of inevitable accident; and it was held that in attempting to pass clear of the ship ashore she did so at her own peril (m). In this country it cases. Parties liable. doer." was held recently that a ship driven from her moorings by another which came foul of her in a gale of wind could not escape liability to a third ship, against which she drove, on the ground of inevitable accident, because she omitted to let go another anchor (n). Where fault is established against a ship, a further "The wrong question frequently arises as to who is liable for damages. It is not in every case where a ship is injured in a collision caused by the negligence of those on board the other ship that damages can be recovered against the owners of the latter, either personally, or indirectly by proceedings in rem against the ship. In many cases there is difficulty in determining on whom the liability for damages falls, as well as who is the actual wrong-doer. This question is distinct from that already considered as to which ship is in fault. The custom of speaking of the ships themselves as being in fault, or wrong-doers, though convenient, is sometimes misleading. "In cases like the present, where damages are claimed for tortious collisions, a chattel, such as a ship or carriage, may be, and frequently is, spoken of as the wrong-doer; but it is obvious that although redress may be sometimes obtained by means of the seizure and sale of the ship or carriage, the chattel itself is only the instrument by the improper use of which the injury is inflicted by the real wrong-doer (o). Owners of the ship in fault are primâ facie liable. In most cases it is sought to make the owners of the wrong-doing ship liable, either personally in an action at law, or indirectly by Admiralty proceedings in rem against the ship herself. Prima facie the registered owners of a ship are liable for the negligence of those in charge of her. If the actual owner is a different person from the registered owner, or if it is shown that the latter is not the employer (n) The Pladda, 2 P. D. 34. (0) Per Selwyn, L.J., in The Halley, L. R. 2 P. C. 193, 201. And see The M. Moxham, 1 P. D. 107, 111; Simpson v. Thompson, 3 Ap. Cas. 279, as to the necessity of determining who is "the actual wrong-doer." |