under pressure in each section involved and at least one man on duty for the purpose of operating the same, and to provide chemical fire extinguishers in ample quantity and sand boxes and other approved oil fire extinguishers to supplement the hose protection.

In answer to sundry of the interrogatories, it nowhere appears that this obligation was discharged. Certainly it may be reasonably assumed that none of these preventives of fire was in the stateroom in which the fire began, because it is fair to assume that, if so, they would not purposely have been omitted in answer to the interrogatories from the list of things which were shown to have been there.

There is, therefore, in this case not only a failure on the part of the respondent to discharge the obligation, if I am correct in thinking that such was its duty, of showing that the fire was not caused by its negligence, but there is in the admissions in the answers to the interrogatories enough, without explanation, to satisfy me that the fire should not have occurred except by the negligent use of fire by its employees, Atlas Powder Company v. Benson, 287 Fed. 797 (3 C.C.A.), and there is coupled and added to all of this failure on the part of the shipyard to have at hand the particular fire-fighting apparatus which it had specifically agreed it would maintain.

I am therefore constrained to hold that while ordinarily the use of an open furnace in vessel repair work and ordinarily the occurrence of a fire on board a ship would not in themselves create, as against the workman engaged in making repairs, a presumption of negligence, when, as in the case here, the use of the one and the happening of the other are shown to follow in immediate sequence in a part of the vessel under respondent's exclusive charge and there is super-added to this the further fact that the walls, where the work was in progress, were inflammable from the use of paint, it is enough, I think, to impose upon the person in charge the duty of explanation to escape liability.

On the other hand, if it be said that there is nothing in the evidence to justify a conclusion that the use of the furnace was under the circumstances inherently dangerous but that its use was necessary and proper and in the exercise of ordinary care altogether safe, then it follows just as certainly that the happening of the fire, in the circumstances, imposed a duty of explanation without which a presumption of failure to use due care may arise.

Respondent, however, insists that whatever may be the opinion of the Court on the subject of the origin of the fire and the liability ordinarily incident thereto, the question is academic and the discussion of it bootless because in this case the United States assumed the risk of damage by fire to the hull of the vessel to the full amount of such damage. The basis of this contention is the bracketed proviso in Art. 10 of the contract as follows :

That the United States Lines will continue the present hull, machinery and equipment insurance upon the vessel during the period the vessel is at the contractor's yard, but the contractor shall, at its own expense, protect the United States Lines through a builder's risk insurance, for the amount of this contract, and for such of the United States Lines' material removed from the vessel, or as may be placed in storage at the contractor's plant.

This provision, it is claimed by respondent, meant that the United States would look to this insurance rather than to the contractor and would hold the latter free from liability for its negligence-that it was in effect a bargain between the parties as to how the risk should be divided. Evidence was introduced by respondent to explain the circumstances under which this language happens to be found in the contract. It was objected to by the United States as immaterial and as tending to vary and contradict the written contract. It was admitted by the Court pending consideration of the entire case.

So far as it related to the negotiations prior to the making of the contract and is explanatory rather than contradictory, it is admissible-so far as any witness undertook to make his own interpretation of the contract, it is inadmissible. Without attempting to be specific in this regard, it is enough to say that under the heading last mentioned, much of the testimony of the witness Bunker, in relation to his own views of the scope of the insurance clause, ought not to be considered.

Such evidence as is admissible shows that at some time prior to the actual contract invitations were sent to various shipyards to bid on work which the United States desired done on the America. Respondent's bid was low, and on Dec. 8, 1905, its vicepresident, Mr. Palen, called at the office of Mr. Rossbottom, the general manager of the United States Lines, acting for the Shipping Board and the United States, to close the contract. He was informed that the bids were all too high and the work to be done would be curtailed and new bids invited.

During the progress of the discussion, Mr. Rossbottom called the attention of Mr. Palen to a provision in the bid submitted by his company to the effect that his company would not be liable beyond "its legal liability," and that the contract should be upon its standard form, and inquired what this provision meant. Mr. Palen replied: "We intend to limit our liability to our legal liability."

The conversation then continued: "I (Rossbottom) said: What in blazes does that mean?' He (Palen) said: For instance, suppose we have an earthquake, we wouldn't be legally liable for that.' I said: Then suppose you are careless and something happens to the ship because of your carelessness, would you be responsible for that under this clause?' He then said:

Well, if we are legally liable for that, we would be liable, but if we are not legally liable for it, we wouldn't be liable.' I then turned to Mr. Petersen and said: 'It looks to me as if this kind of a clause doesn't give us any protection whatever. It is much better for us to continue the present marine insurance that we have through the Shipping Board, because that will give us some protection. At least, it will give a protection that is satisfactory to the owner, but this gives us no protection whatever. If these bids are rejected and we invite new specifications, we might just as well include in the new specifications a clause to the effect that we will continue the present marine insurance because the contractors do not offer to give us any protection whatever.'"

Mr. Palen was examined as a witness and testified as to the conversation between the parties at the conference of Dec. 8. His recollection of the language there used was more or less vague, though he stated that the impression upon his mind of the purport of the conversation was perfectly clear and it was in effect that the discussion related to the various items which formed a part of the cost of the work under the first specification and that the effort was to eliminate as many of these as possible in order to bring the cost within the Shipping Board's limit and that among these items was 5000 dols. as the cost of insurance on the hull while the vessel was at the shipyard and that it was understood this would be eliminated and the owner continue the then-existing insurance through the Shipping Board, and that as a result of all this, when he made his second bid on the revised specifications, he eliminated the 5000 dols. item for insurance because he understood that the contractor would not be required to carry insurance or to furnish that form of protection, since it was proposed that the then-existing insurance on the vessel's hull, &c., would be continued.

Rossbottom, in his testimony, denied that this conversation had occurred or that he ever suggested to Palen the elimination of the 5000 dols. item on account of insurance or that anything was said which would justify the suggestion that the United States was going to assume the risk of the vessel while she was at the repair yard, but insisted that the whole conversation on the subject of insurance grew out of the proviso in the shipyard's bid with regard to its liability, because of which, by reason of his inability to interpret satisfactorily, he felt it desirable that the company should continue its then-existing insurance.

All of the witnesses were men of character and of reputation for ability and doubtless also for veracity; and it is not at all remarkable that in a general discussion having for its object the making of a contract many things should have been said which neither can now remember, or that things which now appear to have been said were probably never said at all. The evidence of precisely what did occur is for this reason

wholly unsatisfactory and is confusing rather than enlightening in furnishing the key to any obscurity in the challenged provision of the contract. There can be no doubt, I think, that a contract whereby the United States agreed to assume all liability for damage to its vessel while at the yard would be valid. (Santa Fe, &c., Railway v. Grant Bros., 228 U.S. 177.)

I think it is equally true that a contract might have been made whereby the United States would agree to give the shipyard the benefit of its insurance (St. Louis, sup.). The question, however, obviously is not whether such a contract might be made but is whether it was in fact made.

When the bid of the Newport News Company was received for the work included in the amended specifications, that is to say, its second bid, it was in precisely the same form as its previous bid and contained the same proviso, viz. :

All the foregoing is submitted with the understanding that general clauses variously referred to shall not be held to impose on the contractor any liabilities beyond his legal liability, and that in lieu of the form of contract attached to the specifications, the work, if awarded to this company, will be executed under a contract substantially similar to this company's standard form of contract for merchant work.

Notwithstanding which, it abandoned its insistence upon its standard form and signed the contract as prepared by the United States; and its rights must be determined by the terms of that contract. If there is ambiguity in the contract, it is proper to explain it by evidence showing as nearly as possible the intention of the parties when it was written, but evidence to this effect should be clear and satisfactory. Mr. Palen's evidence does not measure up to this standard and the evidence of Mr. Rossbottom emphatically negatives such a conclusion as is now contended for.

Mr. Petersen, who was also present at the conferences, likewise denies that at any time there was any statement made by anybody that the United States would be responsible for the vessel while at the yard; and in my opinion it is immaterial what impression might have been made on the mind of Mr. Bunker as to the purpose of the insertion in the contract of the provision in relation to insurance, unless the impression was shown to be the result of apt words on which to base it.

It may indeed be asked why was the clause in question included-what purpose did it serve?-and the answer to this is not as clear as it might be; but, given all possible effect, I think it can be taken to mean no more than an undertaking on the part of the owner to carry its own insurance and to that extent to protect itself in addition to but not in exclusion of such protection as was afforded by the other provisions of the contract, and that it probably arose out of the uncertainty in the

muddled mind of the owner's representative as to the extent to which the latter went. Whether, in the event of loss through fire, the yard would be subrogated to the rights of the beneficiary under the policy, is a question which need not be discussed, for in this particular case there were neither policies nor insurance, but the whole matter was nothing more or less than a bookkeeping arrangement whereby the United States insured itself.

To hold, as the respondent would have me hold, that there was an understanding or meeting of minds whereby the United States agreed that the contractor need not carry any insurance either for their protection or its own would be to write into the contract something that is not there. To hold that the United States agreed to discharge the contractor from all liability for negligence and to be content with the insurance would be to deny to the other provisions of the contract to the contrary all effect, and to give to the vague and uncertain language of the conference an importance wholly unjustified by anything that has been made to appear.

If the United States had in mind to do what the respondent now claims, the innumerable provisions in the contract imposing liability upon the shipyard would have been wholly out of place; and if the shipyard had so understood the contract, it, of course, would never have signed it with these distinct pronouncements of liability for failure to perform its contract appearing again and again in the document.

The very paragraph in which the insurance clause appeared imposes upon the contractor the duty of adequate protection

to the vessel at all times. It imposes upon the contractor not only the duty of providing protection which it regarded as adequate but such additional protection as the representative of the United States might insist upon, and includes also a provision that such protection, that is to say, such as the yard itself regarded as adequate and such as was insisted upon by the representative of the United States, even when furnished, should not release the yard from any liability or responsibility it might be under for damages occurring through its negligence. All of this would be meaningless if the contract was what is now contended for.

At most, I think, it can be construed as nothing more than an undertaking on the part of the United States to protect itself by carrying its own insurance, without surrendering any right or claim which it might have against the contractor for the omission or failure to do the things specifically agreed or for negligence in their perform

ance.

Nothing in the language of the proviso and nothing in the evidence would justify the conclusion that the insurance was to be for the benefit of the shipyard-a valueless provision even if it were true, since the parties all knew that what is called insurance was not insurance at all-or that it was to stand in the place and stead of a claim against the shipyard for negligence. If this had been its purpose, then the whole of Art. 10, save that which imposed the obligation of insurance on betterments, might have been eliminated from the contract.

Judgment was entered for the shipowners.

VOL. 29. No. 2.]

ADMIRALTY DIVISION.

Oct. 13 and 14, 1927.

THE "PORT WELLINGTON." Before Mr. Justice HILL, sitting with Captain P. N. LAYTON and Captain H. C. BIRNIE, Elder Brethren of Trinity House.

Collision between steamships off the Would Light-vessel during dense fog-Dispute as to precise place of collision; as to whether plaintiff vessel was stationary or in motion-Finding of both to blame on grounds (1) that plaintiff vessel, being in motion, sounded misleading signals; (2) that defendant vessel took premature action.

In this action the owners of the steamship London claimed damages from the defendants, the owners of the steamship Port Wellington, arising out of a collision between the two vessels on the night of Feb. 12, 1927, in the vicinity of the Would Light-vessel during the prevalence of fog. Plaintiffs alleged that those in charge of defendants' ship were negligent. The defendants denied negligence, and counterclaimed for damages to their steamship, alleging negligence on the part of the plaintiffs' steamship.

Mr. E. Aylmer Digby, K.C., and Mr. Owen L. Bateson (instructed by Messrs. Thos. Cooper & Co.) appeared for the plaintiffs; Mr. G. P. Langton, K.C., and Mr. K. S. Carpmael (instructed by Messrs. William A. Crump & Son) represented the defendants.

According to the plaintiffs' case, shortly before 11 40 p.m. on Feb. 12, 1927, the London, a steel screw steamship of Dundee, 1205 tons gross and 499 tons net register, 250 ft. in length, 35 ft. in beam, fitted with triple expansion engines of 175 h.p. nom. and manned by a crew of 23 hands all told, on a voyage from London to Dundee with

[BY SUBSCRIPTION

a part cargo of general merchandise, was in the North Sea between the Newarp and the Would Light-vessels. The wind at the time was E.S.E., light airs, the weather dense fog and the tide ebb of a force of about two knots. The whistle of the London was being sounded for fog in accordance with the regulations, and with her engines working at " slow ahead" and "stop" she was making about three to four knots on a course of N.W. by N. mag. The regulation masthead and side lights with an additional optional masthead light and fixed stern light were being duly exhibited by the London and were burning brightly; and a good look-out was being kept on board

of her.

66

In these circumstances a long blast was heard from a steamship which proved to be the Port Wellington apparently on the starboard bow of the London. Thereupon the engines of the London were stopped and one long blast was sounded on her whistle. The Port Wellington again sounded one long blast on two further occasions, apparently broader on the starboard bow of the London, and on each occasion the London replied with one long blast. Shortly afterwards the London, having run off her way, sounded two long blasts on her whistle to indicate that she was stopped in the water. The Port Wellington, however, replied with one short blast; and thereupon two long blasts were again sounded on the whistle of the London; and when the Port Wellington again sounded one short blast the London once more replied with two long blasts. Almost immediately afterwards the masthead light and then the green light of the Port Wellington were observed distant about 200 ft. and bearing a little forward of the starboard beam of the London, and thereupon the engines of the London were put full speed ahead; but before the London got any way on her the Port Wellington with the bluff of her starboard bow struck the London on the starboard side well abaft amidships, causing damage. Although the stern of the London was driven bodily away by the force of the

blow, the Port Wellington continued to come ahead and again struck the London further aft, causing further damage.

Plaintiffs alleged that those in charge of the Port Wellington negligently and improperly failed to keep a good look-out; failed to stop her engines when hearing apparently forward of her beam the fog signal of a vessel whose position was not ascertained and then to navigate with caution; failed to navigate at a moderate speed; improperly and at an improper time put and kept her helm to port; improperly and at an improper time caused or allowed her head to fall to starboard; failed to ease, stop or reverse her engines in due time or at all; and failed to comply with Arts. 16, 27 and 29 of the Collision Regulations.

According to the defendants' case, shortly before 11 41 p.m. on Feb. 12, 1927, the Port Wellington, a steel twin screw steamship of London, of 7868 tons gross register, 470 ft. in length and 60 ft. in beam, fitted with triple expansion engines of 860 h.p. nom., was in the North Sea to the northward and westward of the Would Lightvessel on a voyage from Hull to Antwerp, laden with a cargo of about 4000 tons of general goods and manned by a crew of 85 hands all told. There was a dense fog, there was no wind and the tide was ebb setting to the northward and westward of a force of about one knot. The Port Wellington was on a course of 124 deg. true and with engines working at slow ahead was making between four and five knots. The regulation lights for a steamship under way including an additional optional masthead light and a fixed stern light were being duly exhibited on board the Port Wellington and were burning brightly. The whistle of the Port Wellington was being duly sounded prolonged blasts for fog at regulation intervals; and a good look-out was being kept on board of her.

In these circumstances a prolonged blast was heard from a steamship which proved to be the London apparently fine on the port bow of the Port Wellington. The engines of the Port Wellington were immediately stopped and her whistle was continued sounding for fog at regulation intervals. After an interval, during which no sound signal was heard, a signal of two long blasts was heard from the London. The engines of the Port Wellington were thereupon put slow ahead and her helm was put hard-a-port. Thereafter the London was heard to sound two long blasts on several occasions and upon each occasion the whistle of the Port Wellington was sounded one long blast in reply, save that after the third signal of two long blasts from the London the whistle of the Port Wellington was also sounded one short blast. After an interval the London came into view, apparently proceeding at considerable speed and shaping to cross the bows of the Port Wellington from port to starboard. The engines of the Port Wellington were immediately put full speed astern

and her helm was kept hard-a-port, but the London continued to come on with considerable headway, and with her starboard side about amidships struck the stem of the Port Wellington, causing damage to her.

Defendants said that a good look-out was not kept on board of the London; that she was improperly proceeding at an excessive speed in the weather conditions prevailing; that she, having heard apparently forward of her beam the fog signal of the Port Wellington the position of which was not ascertained, improperly failed to stop her engines and then to navigate with caution; that she improperly failed to sound her whistle for fog at regulation intervals; that she improperly sounded misleading whistle signals; that she improperly failed to remain stopped in the water in accordance with her whistle signals; that her helm was improperly and at an improper time put and kept to starboard; alternatively, that her head was improperly and at an improper time caused or allowed to fall to port; that she improperly failed to ease, stop or reverse her engines in due time or at all; and that those on board of her failed to comply with Arts. 15, 16, 27 and 29 of the Collision Regulations.

Wednesday, Oct. 26, 1927.

JUDGMENT.

Mr. Justice HILL, in giving judgment, said: The ships involved in this case were the London, of 1205 gross tons, 250 ft. long, nearly light, drawing 9 ft. 8 in. forward and 14 ft. 4 in. aft, and the Port Wellington, of 7868 gross tons, 470 ft. long, laden with part cargo, drawing 19 ft. 7 in. forward and 20 ft. 6 in. aft.

The collision happened at about 11 40 p.m. on Feb. 12, 1927, near the Would. The precise place is disputed. Plaintiffs say that at the time of the collision the London, being on a course N.W. by N., had the Would Light-vessel abeam on the starboard side. Defendants place the collision some miles further to the northward. The London was northward bound from London, keeping to the westward of the light-vessel. The Port Wellington was southward bound to Antwerp, intending to pass the Would hand her port and the Newarp on her starboard hand. They were in collision, the stem of the Port Wellington with the starboard side abaft the bridge of the London and, on a second contact, with the starboard quarter of the London. The second contact was about 50 ft. abaft the beginning of the first contact.

en

The weather at the time of collision was dense fog, visibility 200 to 300 ft., according to the evidence; the Port Wellington had been in thick fog for about three hours, from about the Haisbro, and the London had been in thick fog for 50 minutes from the neighbourhood of the