Evidence given in previous action. Interroga. tories. test (g) and a deposition made before a receiver of wreck (1) are not admissible as evidence for the ship on behalf of which they have been made, but may be used against the ship and in cross-examination to test a witness's accuracy. Copies of the official journals kept by the coastguard at lighthouses, and of the logs kept on board lightships, as to the state of the wind and weather, are usually admitted in Admiralty upon production of an affidavit by the proper officer (i). Statements by the master as to matters in issue are admitted to prove the facts stated against the owner (1⁄2), but not statements by other officers or by seamen (7), or by the pilot (m). Evidence in a previous action in Admiralty for the same collision is not admissible in a subsequent action except by consent (n). At one time there appears to have been doubt whether in a collision action interrogatories could be administered with respect to matters stated in the preliminary acts of the parties and other circumstances of the collision. It is now settled that such interrogatories are permissible (o). (g) Christian v. Coombe, 2 Esp. 489; The Ljndica, 23 L. T. N. S. 474; The Emma, 2 W. Rob. 315; The Hedwig, 1 Sp. E. & A. 19. As to the value of such evidence, see The Osmanli, 7 Not. of Cas. 507, 510. (h) The Little Lizzie, L. R. 3 A. & E. 56; Nothard v. Pepper, 17 C. B. N. S. 39. As to obtaining inspection of copies of these depositions furnished to the adverse party by the Board of Trade, see The Palermo, 9 P. D. 6. (i) An examined copy is sufficient, The Maria des Dores, B. & L. 27; The Catherina Maria, L. R. 1 A. & E. 53. (h) The Midlothian, 15 Jur. 806; The Manchester, 1 W. Rob. 63; The Europa, 13 Jur. 856; The Actaon, 1 Sp. E. & A. 176; and so in America, The Potomac, 8 Wall. 590; The Europa, ubi supra; The Midlothian, ubi supra. (1) The Lord Seaton, 2 W. Rob. 391, 403; The Foyle, Lush. 10; and see The Great Eastern, Holt, 169. (m) The Lord Seaton, 3 W. Rob. 391; The Schwalbe, Swab. Ad. 521, where, however, the pilot's statement was admitted as part of the res gesta. So statements of the crew at the time of the collision have been admitted as part of the res gesta; The Mellona, 10 Jur. 992. (n) The William Hutt, Lush. 25; The Demetrius, L. R. 3 A. & E. 523. (0) The Biola, 34 L. T. N. S. 135. Trinity The power given to any party in an Admiralty action Order for to apply for an order for inspection of any ship or other Masters or personal or real property, the inspection of which may be others to inspect. material to the issue of the cause (p), was exercised in The Magnet (q). The Trinity Masters, at the judge's request, inspected the lights of The Eugenie, one of the ships which had been in collision. They reported them to be deficient, and The Eugenie was in consequence held in fault under 36 & 37 Vict. c. 85, s. 17. In the Court of Appeal and in the Admiralty Division Matters of of the High Court of Justice nautical assessors advise the how proved. seamanship: Court upon questions of seamanship. In the Queen's Bench Division assessors are not usually, but may be (), called in. Elsewhere than in Admiralty the rules of seamanship may be proved by experts; in Admiralty it has frequently been held that such evidence is not admissible (s). In a recent case evidence directed to show what was the usual mode of navigating ships in a particular locality (the entrance to the Mersey) was held to be inadmissible in Admiralty (t). nautical assessors. The function of the assessors in Admiralty is not to Function of decide questions of fact arising in the case, but to advise the Court upon nautical matters. The decision of the case rests entirely with the judge. Even in purely nautical matters he is not bound by the opinion or advice of the assessors, if it is contrary to his own opinion (u). "Still," (p) 24 Vict. c. 10, s. 18. See 36 & 37 Vict. c. 66, s. 56. (t) The Kirby Hall, 8 P. D. 71; but see The Velocity, L. R. 3 P. C. 44, where such evidence appears to have been admitted; and The An dalusian, 2 P. D. 231, as to usual (u) See The Friends, 4 Moo. P. as was remarked by Brett, M.R., in a recent case, "it would be impertinent in a judge not to consider as almost binding upon him the opinion of the nautical gentlemen who, having ten times his own skill, are called in to assist him" (x). It has in some cases been suggested that upon a question of mere nautical skill there is no appeal from the expressed opinion of the nautical assessors in the Admiralty Division. It is scarcely necessary to state that such a contention will not be upheld. (x) The Beryl, 9 P. D. 137, 141. CHAPTER II. STATUTORY PRESUMPTION OF FAULT. tions. Ir has been already stated that under certain circum- Statutory presumption stances an arbitrary rule of law requires the courts to hold of fault in a ship in fault for collision, although no negligence on her case of infringement of part contributing to the collision is proved. And it will the Regulabe seen below that this rule applies, not only where negligence is not proved, but where it did not exist, and where those in charge of the ship were, as regards negligence, absolutely free from blame. The circumstances which bring this stringent, not to say harsh, enactment into operation, are as follows:-First, where, on the part of the ship sued, there has been an infringement of any of the Statutory Regulations for Preventing Collisions at Sea, which might by possibility have contributed to the collision; and, secondly, where the ship sued did not stand by to assist the other with which she had been in collision. The decisions upon the first of these enactments are so much more numerous and important than those illustrating the second, that it will be convenient to reverse the order in which they occur in the statute (36 & 37 Vict. c. 85, Ss. 16, 17), and to consider the section of the Act (sect. 17) relating to infringement of the Regulations before that, (sect. 16), which deals with failure to stand by. By 36 & 37 Vict. c. 85, s. 17, it is enacted as follows:- 36 & 37 Vict. c. 85, s. 17. "If, in any case of collision, it is proved to the Court before which the case is tried that any of the Regulations for preventing collision contained in or made under the Merchant Shipping Acts, 1854 to 1873, has been infringed, the ship by which such Regulation has been infringed shall be deemed to be in fault, unless it is shown to the satisfaction of the History of legislation upon the subject of infringement of statutory rules of navigation. Court that the circumstances of the case made departure from the Regulation necessary." To understand the effect of this enactment it will be necessary to refer to previous legislation upon the subject. By 14 & 15 Vict. c. 79, s. 28, and afterwards by 17 & 18 Vict. c. 104, s. 298, it was enacted, in effect, that if a collision was occasioned by the non-observance of any of the rules as to lights or navigation contained in or made under those Acts, the owner of the ship by which the rule was infringed should recover no damages for injury to his ship, unless it was proved that the departure from the rule was necessary (a). The effect of these enactments was to abrogate the rule of the Admiralty, that a wrong-doing vessel shall recover half her loss if the other ship is also in fault, in those cases where the plaintiff vessel had unnecessarily infringed the statutory rules. In each case the question had to be tried whether the infringement was negligence contributing to the collision. In Tuff v. Warman (b) and other cases (c) it was held, upon the construction of these enactments, that though the plaintiff had infringed the Regulations, and by his negligence had (a) The sections ran as follows: any case of collision it appears to the Court before which the case is tried that such collision was occasioned by the non-observance of any rule, &c. .. the owner of the ship by which such rule has been infringed shall not be entitled to recover any recompense whatever for any damage sustained by such ship in such collision, unless it is shown to the satisfaction of the Court that the circumstances of the case made a departure from the rule necessary.' Under the latter Act, The Juliana, Sw. 20, was decided. (b) 2 C. B. N. S. 740; 5 C. B. N. S. 573. (c) Morrison v. General Steam Navigation Co. 8 Ex. 733; The Vivid, 10 Moo. P. C. C. 472; The Aliwal, 1 Sp. 963; The Telegraph, ib. 427. |