stitute such "fog" as to necessitate the use of these signals. It seems reasonable to suppose that, in a crowded roadstead or other situation where the risk of collision is greater than ordinary, a slighter degree of thickness of the air should bring the fog signals into use, than under other circumstances.

In the case of the Wild Rose, the ship Independence was lying at anchor in the river Mersey, and did not ring a bell during weather which was described by witnesses on one side as "misty, but not foggy," and on the other as "a dense fog." In giving judgment, Dr. Lushington said, "that, on the morning when the collision took place, there was that which any reasonable man would have termed a fog existing at some time or other in the river Mersey, there cannot be a doubt. You have the entries from three of the landing places, and you have the fact that the steamers which crossed backwards and forwards, all of them used the whistle; that I therefore assume to be a proved circumstance in this case" (a).

(a) Wild Rose, tried Nov. 16, 1865.

H

Definition.

CHAPTER VI.

INEVITABLE ACCIDENT.

ACCIDENTAL collisions, for which neither vessel is responsible to the other, ought, one should think, to be extremely rare; since, to constitute such a collision, it must appear that each vessel has done all that was requisite to give to the other timely warning of her approach, each must have kept a sufficient look-out, neither must have been moving at an improper speed, and each, on seeing the other, must have taken the proper steps in order to avert a collision. With such a combination of precautions, it is difficult to see how a collision should be possible. There are, however, one or two instances of collisions really accidental in this sense.

The following definitions of an accidental collision have been given in the Admiralty Court. In my apprehension," said Dr. Lushington, in the case of the Virgil," an inevitable accident in point of law is, that which the party charged with the offence could not possibly have prevented by the exercise of ordinary care, caution, and maritime skill" (a). In the subsequent case of the Lochlibo, the same

(a) 2 W. Rob. 205.

principle was laid down in almost the same words. "By inevitable accident, I must be understood as meaning, a collision which occurs when both parties have endeavoured by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident" (a). Again, in the case of the W. V. Moses, the same learned Judge defined inevitable accident to be "that accident, that calamity, which occurs without there being any practicable means of preventing its taking place; it is that accident which takes place when everything has been done which ordinary skill, care, and ability could do to prevent accident" (b).

Examples of such "inevitable accidents" are as follows:

When a steamer was rounding-to in order to come to an anchor, and the other vessel, either not seeing her lights or baffled by their change of position, and in consequence unable to make out her course, it being an extremely dark night, steered as if the steamer were coming towards her, the collision which ensued was held to be the result of inevitable accident (c).

Shifting of lights from

rounding-to,

to come to

anchor.

change of

position by a

The fact that a third vessel near the colliding Sudden ships has unexpectedly thrown herself in stays, so as to confuse and complicate the manoeuvring, and thus occasion the collision, may, it would

(a) 3 W. Rob. 318.

(b) 6 Mitch. 1553.

(c) Shannon, 1 W. Rob. 463.

vessel near.

Jamming of cable at moment of letting go.

Missing stays.

Fog suddenly coming on.

seem, cause the collision to be regarded as accidental (a).

The jamming of a cable in letting it go, whence a collision ensued, was held sufficient to excuse the ship on the ground of accident. It was considered, both in the Admiralty Court and in Privy Council on appeal, that there was no want of foresight or precaution on the part of the master in any particular, and that the jamming of the cable must be attributed to pure accident (b).

That there has been an accident, is not enough, if, notwithstanding it, there was time enough to have remedied its effects before the collision, had proper measures been taken. Thus, where a vessel had missed stays in a squall, this was held not to be a sufficient excuse for the collision which ensued, because it appeared that, after missing, there was time to have paid-off before the wind by squaring the mainyard (c).

An intense fog, suddenly coming on, or coming on under circumstances which justify the ships which collide in continuing their respective courses, may excuse both, if it is so dense that all due precautions are insufficient to prevent a collision. Thus in the case of the Itinerant, where that vessel was sailing in a dense fog with her studding-sails set, and urged in her excuse that she was obliged to carry a press of sail to make way against the tide

(a) See the Mobile, Swab. 73.

(b) Peerless, 1 Lush. 111.

(c) Kingston by-Sea, 3 W. Rob. 156.

and to avoid being run into by vessels in her wake, the Court were of opinion that it might have been prudent for her to have taken in her studding-sails, but that she was nevertheless not answerable in damages, because they were further of opinion that the collision was not occasioned by the omission of the Itinerant so to do, the weather being such that the accident would have occurred, even though this precaution had been adopted (a).

(a) Itinerant, 2 W. Rob. 243. See ante, 73.