C.P. Div.] KEITH AND ANOTHER v. BURROWS AND ANOTHER. fendants to H. Jump and Sons, who thereupon paid the balance thereon appearing of 9511l. 16s. 7d., in pursuance of their contract. The cargo was subsequently resold by Jump and Sons to Ross F. Smyth and Co., of Liverpool. 23. On the 6th March 1875, the plaintiffs duly registered their mortgages. 24. On the 13th April 1875, the Stonehouse arrived at Falmouth for orders. She was then taken possession of by Mr. Harrold and the plaintiffs, as first and second mortgagees respectively. Mr. Harrold's debt being more than secured by the ship he had no claim to the freight. The Stonehouse proceeded in the possession of Harrold and the plaintiffs to Liverpool, where she arrived on the 19th April 1875, on which day Messrs. Lowless and Co., on behalf of the defendants, wrote a letter to the plaintiff's attorney, Messrs. Freshfields and Williams, as follows: Dear Sirs, We have a telegram that this vessel (Stonehouse) is now off the port, and that the market is a falling one. Should there, therefore, be any difficuity in obtaining delivery, the purchasers may repudiate their bargain, and a loss of 1000l. might easily be sustained, in addition to the charges for landing and warehousing. Will you, therefore, please let us have your determination instantly. We are obliged to give you notice that our clients will seek to recover all damages sustained from Messrs. Wyllie and Co., and we have given you special notice of the circumstances, in order that our clients may be entitled to recover. We hope, however, that there will be no necessity for this.-LOWLESS & Co. 25. The plaintiffs refused to allow Messrs. Ross F. Smythe and Co. to take delivery of the cargo, except on payment of freight at 558. per ton, and were prepared to protect themselves in the manner in the Merchant Shipping Amendment Act 1862; but to avoid such detention of the cargo, and the deterioration and expenses which would have been the result of it, the following agreement was made between the plaintiff and the defendants through their respective attorneys. It is hereby agreed between Messrs. Freshfields and Williams, as representing Messrs. James Wyllie and Co., and Messrs. Lowless and Co., as representing Messrs. Burrows and Perks, that 3500l., being the amount of freight on the cargo of the ship Stonehouse, claimed by Messrs. James Wyllie and Co, as second mortgagees in possession of the Stonehouse, shall be paid into the Lon don and Westminster Bank in the joint names of Messrs. Freshfields and Williams and Messrs. Lowless and Co. to abide the result of an action to be brought by Messrs. James Wyllie and Co. against Messrs. Burrows and Perks, who hereby admit, for the purposes of the action, that they are the owners of the cargo under the bill of lading thereof, and liable to pay whatever freight may be due thereon. The action to be commenced within thirty days from this date, and duly prosecuted. In the event of no action being brought within the time aforesaid, or of Messrs. James Wyllie and Co. not obtaining a verdict in the said action, the amount so deposited, with any interest thereon, is to be paid to Messrs. Burrows and Perks or order; and, in the event of Messrs. James Wyllie and Co. recovering a verdict for the said sum of 3500l., or any part thereof, the amount of such verdict is to be paid to them or order out of the sum deposited, and the balance (if any) to Messrs. Burrows and Perks or order. It is admitted, for the purposes of the said action, that the amount of freight specified in the bill or bills of lading has been tendered, Messrs. James Wyllie and Co. to withdraw any stop which they may have put upon the goods on the money being deposited, Messrs. Burrows and Perks to have the same right of recovering interest on the sum to be deposited as if the money had been paid at the proper time into a wharfinger's hands under the provisions of the Merchant Shipping Amendment Act. Dated 19th April 1875. FRESHFIELDS AND WILLIAMS. [C.P. DIV. 26. It was subsequently found that freight at 558. per ton amounted to 35771. 58. 7d., and upon the execution of the agreement and the payment of the 35771. 58. 7d. as subsequently agreed, instead of 3500l., into the London and Westminster Bank, the plaintiffs gave delivery of the cargo. The question for the opinion of the court (who were to have liberty to draw all inferences of fact, was, whether the plaintiffs were entitled to refuse delivery except on payment of freight at the rate of 558. per ton, or whether any freight was due on the said cargo beyond freight at the rate of 18. per ton. If the opinion of the court on either point should be in the affirmative, judgment was to be entered for the plaintiffs for 35771. 5s. 7d. with costs; if in the negative, for the defendants. Feb. 10. The case was argued by Herschell, Q.C. (C. Bowen with him, for the plaintiffs, and by Webster (Thesiger, Q.C. with him), for the defendants. The court took time to consider, but afterwards desired that the case should be reargued on the point whether any equity was created as between the plaintiffs and the defendants by the fact that the defendants had searched the register, and had found no incumbrance. Feb. 21.-The case was accordingly reargued. The following are the authorities which were referred to in the course of the arguments: Mercantile and Exchange Bank v. Gladstone, 18 Liverpool Marine Credit Company v. Wilson, ante, Brown v. North, 8 Ex. 1; 22 L. J. 49, Ex. ; Brown v. Tanner, 18 L. T. Rep. N. S. 621; L. Rep. 8 & 9 Vict. c. 89, s. 37 (the former Merchant Ship- Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), Cur. adv. vult. June 14.-The judgment of the court (Brett, Archibald, and Lindley, JJ.) was delivered by LINDLEY, J.-The material facts are these :1st Dec. 1874, mortgage by Morison to the plaintiffs of a ship for 7500l. and further advances. 4th Jan. 1875, defendants advanced Morison 30001. on security of cargo, without notice of the plaintiffs' mortgage. 2nd Feb. 1875, Morison again mortgaged the ship to the plaintiffs for 4000l. and further advances. 19th Feb. 1875, sale of cargo by defendants and Morison to Jump and Co. on terms of freight, being paid at 558. per ton. 22nd Feb. 1875, further advance by the defendants of 9000l. 26th Feb. 1875, assignment to them of the freight at 558. per ton, as security for their advances. 2nd March 1875, Morison mortgages the ship to Harrold. 3rd March 1875, Harrold's mortgage was registered. 6th March 1875, the plaintiffs registered their mortgage, 13th April 1875, the ship arrived, and Harrold and the plaintiffs took possession; Harrold being satisfied with his security on the ship did not claim the freight; an arrangement was come to by which the defendants acquired Jump and Co.'s rights. Consider, first, how the case would have stood C.P. Div.] KEITH AND ANOTHER v. BURROWS AND ANOTHER. if there had been no mortgage to Harrold. Two questions would then have arisen, viz., (1), would the freight payable to the plaintiffs as first mortgagees in possession have been 558. per ton or only 18. (2), would the plaintiffs have been entitled to this freight as against the defendants. (1.) With respect to the first of these questions, it is to be observed that although a nominal freight of 1s. was made payable by the bills of lading, the cargo being bought for the owner of the ship, in the contract with Jump and Co., the freight payable is agreed to be 55s. per ton, and the freight assigned to the defendants is likewise freight at 55s. per ton. The defendants, therefore, whether they claim through Jump and Co. or under the assignment to themselves are not in a position to deny that the sum payable as and for freight was to be 55s. per ton. It is true that this sum was not made payable when the cargo was put on board, nor when the defendants made their first advances on the cargo, and that it was made payable by an agreement entered into by the shipowner and the defendants and the purchasers of the cargo, after the date of the plaintiffs' mortgage. But there is no reason why the benefit of this agreement should not accrue to the mortgagee of the ship on his taking possession of her, on taking such possession he is entitled to all freight payable under charter-parties or bills of lading; and there is no difference material to the present case between freight payable under such documents and money payable as and for freight under such an agreement as that which is here to be considered. No authority on this point was referred to on either side, and, on principle, 55s. having been fixed by all parties interested in the cargo to be the freight, must be so treated for the purposes of the case. (2.) The question whether the plaintiffs as mortgagees of the ship, or the defendants as assignees of the freight, would have had the better title to it but for the mortgage to Harrold turns on the true nature of a mortgage of a ship and on the effect of the omission of the plaintiffs to register their mortgage before the freight was assigned to the defendants. The mortgage to the plaintiffs was in the statutory form, and by it the ship was mortgaged to them. The word mortgage is a well known word and signifies a transfer of property by way of secu rity: See 2 Black. Com. 158; Termes de la Ley Mortgage.) A mortgage is a transfer of all the mortgagor's interest in the thing mortgaged, but such a transfer is not absolute; it is made only by way of security, or in other words it is subject to redemption. Unless, therefore, there is any statutory enactment to the contrary, the plaintiffs in this case acquired by their mortgage the whole of the mortgagor's interest in the ship, or in other words the legal title to the ship as security. Such is prima facie the effect of the instrument of mortgage. But the statutes relating to ships must be examined with a view to determine what the consequences of registration or non-registration may be. Under the older statutes relating to merchant shipping all transfers and mortgages were made by a bill of sale, and such bill of sale had no effect whatever either at law or in equity until registration (See the cases collected in The Liverpool Borough Bank v. Turner, 1 J. & H. 159; 2 De : [C.P. DIV. G. J. & J. 592; Maclachlan, on Shipping, p. 39, 2nd edit.) (a) The Merchant Shipping Acts now in force, however, make a marked distinction between transfers of ships otherwise than by way of security and mortgages, and there are different groups of sections with distinct headings applicable to these two different subjects: (See 17 & 18 Vict. c. 104, ss. 55-65, which relate to transfers and transmissions, and ss. 66-75, which relate to mortgages.) Amongst other distinctions between these two modes of dealing with ships the following are the most noteworthy: A transfer (otherwise than by way of mortgage) must be by a bill of sale (sect. 55), and must be produced to the registrar for registration (sect. 57), and the transferee, if not a corporation, must make a declaration that he is a natural born British subject: (sect. 56, and schedule Form F.) On the other hand a mortgage must be by a different kind of instrument (sect. 66), and there is no enactment requiring such instrument to be produced to the registrar (compare sect. 66 with sect. 57), and the mortgagee is not required to make any declaration as to his nationality. It is true that in The Liverpool Borough Bank v. Turner (ubi sup.), Wood, V.C., and Lord Campbell, held that an unregistered equitable mortgage of a ship could not be enforced. But in consequence of this decision, 25 & 26 Vict. c. 63, s. 3, was passed, and the validity of an unregistered mortgage as against all persons except registered transferees or mortgagees (see sects. 43 and 69 of the Merchant Shipping Act 1854.) can hardly now be disputed: (See Stapleton v. Haymen, 2 H. & C. 918.) It appears from the Merchant Shipping Act 1854 itself, that a mortgagee has an interest in the ship capable of transmission by bankruptcy, death, or marriage (sect. 74); and on payment off of the debt secured by a registered mortgage and entry of the payment in the registry, the estate, if any, which passed to the mortgagee vests in the person in whom the same would have vested if the mortgage had not been made (sect. 68). The mortgagee, however, is not to be deemed the owner of the ship, except so far as may be necessary for making her a security for the mortgage debt (sect. 70). This section was inserted for his protection against liability which might have attachedto him by reason of his interest in the ship (see Dickinson v. Kitchen, 8 E. & B. 789); and would have been quite unnecessary if the mortgage transferred no interest in the sense of ownership in her to him; or in other words if it created a mere charge on her in his favour, Sect. 72, which protects registered mortgagees of ships from the operation of the reputed ownership clauses of the Bankruptcy Acts would also be unnecessary if a mortgagee had not such an interest in the ship as might render him her true owner within the meaning of those clauses. Again, the right of a first registered mortgagee to take possession of the ship is too well settled (a) Mortgages are still effected in the United States by bill of sale, and by the U. S. Statute of 1850, sect. 1; "No bill of sale, mortgage, hypothecation, or convey. ance of any vessel, or part of any vessel of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons mortgage, hypothecation, or conveyance be recorded in having actual notice thereof, unless such bills of sale, the office of the Controller of Customs where such vessel is registered or enrolled."-ED. C.P. Div.] KEITH AND ANOTHER v. BURROWS AND ANOTHER. to be capable of dispute; but the statute confers no such right in express terms, and it only exists by reason of the ownership transferred to the mortgagee by the mortgage itself; a mere charge would confer no such right. (See Fisher on Mortgages, p. 197.) But as a mortgagee, unless in possession, would have no power of sale if it were not expressly conferred upon him; and as the mortgage contains no such power, the statute itself expressly confere it on registered mortgagees (8. 71). But this affords no argument against the view that the mortgage itself confers on the mortgagee an interest in the sense of ownership in the ship herself. The conclusion, then, to be drawn from the mortgage and the statute is that the mortgagee of a ship, like the mortgagee of any other property, acquires an ownership in the ship, viz., such ownership as the mortgagor bas to give. A first mortgagee will thus acquire the whole ownership in the ship, but only of course as a security for his money. Second and other mortgagees will only acquire the interest left in the mortgagor, or in other words, his right to redeem. That right will be legal or equitable, according as the time for paying off the first mortgage has not yet arrived or has passed. That this is the true nature of a mortgage of a ship appears not only from the above observations, but also from the following decisions : Dickenson v. Kitchen (8 E. & B. 789); and Liverpool Marine Credit Co. v. Wilson (ante vol. 1, p. 323; L. Rep. 7 Ch. 507). The plaintiffs in this case having acquired by their mortgage the ownership of the ship, and that title being prior in point of date to the equitable assignment of the freight to the defendants, such title must prevail against them unless there be some sufficient reason to the contrary (see Rice v. Rice; 23 L. J. 289, Ch.). The only reason alleged is the non-registration of the plaintiffs' mortgage before the date of the assignment to defendants. If an unregistered mortgage of a ship were null and void, or if it had no legal effect before the time of registration, then the title of the plaintiffs would have accrued after that of the defendants, and would have to be postponed to theirs (see Lindsay v. Gibbs, 22 Beav. 522). But the present Merchant Shipping Acts contain no enactment to this effect, and, as already observed, an unregistered mortgage is not now void; moreover sect. 69 of the Act of 1854 enacts in effect that if there is more than one registered mortgage the mortgagees shall be entitled in priority one over the other according to the dates of registration. So far, therefore, as the Act itself is concerned, the only consequence of not registering a mortgage is to postpone it to a subsequent mortgage or a transfer, (see sect. 43), which is registered before it. But it was contended that upon general principles of equity, and apart from any statutory enactment, the plaintiffs had lost their priority by reason of their own negligence in omitting to register the mortgage. The case states that the defendants searched the register before they advanced their money on the freight, and they were therefore really misled by the non-registration of the plaintiffs' security, and it is contended that this is one of those cases which ought to be decided according to the rule that whenever one of two innocent parties must suffer by the acts of a third, the one who has [C.P. DIV. enabled such third person to occasion the loss must sustain it. This rule is a well known rule both at law and in equity; but it is by no means easy of application, owing to the ambiguity of the word enabled. The plaintiffs did not register their mortgage, but they were not themselves party or privy to any fraud on the defendants. The plaintiffs did not know that money was being obtained on the security of the freight, and in truth there is nothing save the mere omission to register which can be urged against them. But the mere omission by a person to do something, which it is not his duty to do, but which if done would have prevented loss to another, is not sufficient to render such person liable for such loss nor to deprive him of any rights which be would otherwise have had against that other. There are decisions to this effect both at law and in equity; one at law, Arnold v. The Cheque Bank (L. Rep. 1 C. P. Div. 578; 45 L. J. 562, C. P.; 34 L. T. Rep. N. S. 729), decided by this court during last sittings, where the cases at law are fully considered. In equity it is settled now that the mere omission by a first mortgagee to obtain the title deeds from the mortgagor is not sufficient to postpone the first mortgage in favour of a subsequent mortgagee who bona fide advances his money in the belief that the property is unencumbered, and who obtains the deeds, see Evans v. Bicknell (6 Ves. 173, 183); Hewitt v. Loose more 9 Hare, 449). To postpone the first mortgage in such cases there must be either fraud or such gross and wilful negligence as is equivalent to it. In the present case but for Harrold's mortgage the plaintiffs would have had a clear prior legal title to the freight as against the defendants; and although if the plaintiffs had registered their mortgage when it was made the defendants would not have been misled, there was neither fraud nor such gross and wilful negligence imputable to the plaintiffs as is sufficient to deprive them of their prior legal rights. It remains to consider the effect of Harrold's mortgage. This although subsequent in point of date to the plaintiffs' mortgage was registered before it, and by sect. 69 of 17 and 18 Vict. c. 104, became entitled to priority over it. By reason of this statutory priority Harrold became first mortgagee of the ship and became entitled to take possession of her and to receive her freight. Having paid himself he would hold any surplus for the benefit of the subsequent incumbrancers according to their priorities, In point of fact Harrold was content to look to the ship only, and he laid no claim to the freight. But the plaintiffs had also taken possession of the ship, and they claim freight as second mortgagees. The priority gained by Harrold cannot affect the rights of the plaintiffs as against the defendants, and Harrold's claim being satisfied, his mortgage may, for all present purposes, be disregarded. The mortgage of the plaintiffs became as between them and Harrold a second mortgage instead of a first mortgage, but the plaintiffs' mortgage continued to be, as it always was, prior in point of date to the assignment of the defendants. Even therefore if the plaintiffs' mortgage became for all purposes and as against all persons an equitable as distinguished from a legal mortgage, its priority in point of date remained unaffected. It was, indeed, contended that by reason of Harrold's mortgage and its priority over the plaintiff's mortgage, this last could only be regarded as an equitable mortgage, dating from the time of registration. But this contention is based upon the erroneous supposition that an unregistered mortgage has no validity until it is registered. It was further contended that the plaintiffs having became second mortgagees had no right to take possession of the ship, and that their right to freight was, therefore, never perfected. But although a second mortgagee has no legal as distinguished froin equitable right to possession, and although he cannot take possession as against a first mortgagee, yet as against all other persons he has a right to take possession, and can enforce such right if necessary by obtaining the appointment of a receiver, see Liverpool Marine Credit Company v. Wilson, ante vol. 1, p. 323; L. Rep. 7 Ch. 507; 26 L. T. Rep. N. S. 717, where the rights of a second mortgagee of a ship are pointed out. In this particular case the plaintiffs took possession, and it was, therefore, unnecessary to apply for a receiver; if they had neither taken possession nor applied for a receiver, still as the first mortgagee did take possession, it was probably unnecessary for the plaintiffs to do more than give him notice of their claim, for he would, after paying himself, hold all surplus monies received by him in trust for the persons beneficially interested in them according to their priorities. For these reasons our judgment is for the plaintiffs. Judgment for the plaintiffs. Solicitors for plaintiffs, Freshfield and Williams. Solicitors for the defendants, Lowless and Co. ADMIRALTY DIVISION. Reported by J. P. ASPINALL and F. W. RAIKES, Esqrs., Barristers-at-Law. Nov. 6, 11, and 17, 1876. Damage-Inevitable accident-Inherent defect in machine-Costs. The owners of a vessel are not liable for damage caused to another vessel in a collision occasioned by the sudden breaking down of an apparatus in which there was an inherent latent defect, in the absence of any negligence in the user of the apparatus. The William Lindsay (ante, vol. 2. p. 118; L. Rep. 5 P. C. 338; 29 L. T. Rep. N. S. 355) followed. Where the defence of inevitable accident is sustained, the plaintiff will not be ordered to pay the costs, unless he might have known that there was, apart from the merits, a good legal defence. THIS was a cause arising out of a collision which took place in the River Thames at 10 a.m. on 17th June 1876, between the schooner Gem, which was lying at anchor, and the screw steamship Virgo, which was steaming down the river. There was no material difference between the parties as to the weather, which was described as fine and clear. The Virgo struck the Gem, which was lying across the river, and head to wind, nearly amidships, with such violence that she sank, and her cargo of ice floated out. It was alleged in the statement of claim, on behalf of the Gem, that the collision and damage were caused by, and [ADM. were wholly attributable to, the neglect, default, or mismanagement of the Virgo, or of those on board her, and that no blame in respect of the said collision or damage was attributable to the Gem, or to any of those on board her. The General Steam Navigation Company, owners of the Virgo, in their statement of defence, alleged that the Virgo was proceeding about six knots an hour, and that the Gem was seen at a distance of half a mile, and continued : 4. As the Virgo approached the Gem, proper measures were taken in due time by starboarding the helm of the Virgo, to steer the Virgo clear of the Gem without danger of collision; but as the helm of the Virgo was being starboarded, her steering gear broke, and she could not be made to answer a starboard helm, and although her engines were promptly stopped and reversed full speed, she with her stem came into contact with the starboard side of the Gem. 5. The said breaking of the steering gear of the Virgo happened without any neglect or breach of duty on the part of the defendants, or of those on board the Virgo, and the said collision was not occasioned by any neglect, default, or mismanagement on the part of those on board the Virgo, and the said collision was the result of inevit. able accident. On the defence issue was joined, and the case came on before the Judge and Trinity Masters, on the 6th Nov. 1876. It was proved that the Virgo had some short time previously to the accident ported to go ahead of a ketch which was working up the river, and had steaded again after doing so, and that the order was just given to "starboard” to clear the Gem, when it was reported to the master that something was wrong with the steering apparatus (a patent one), which would not move; the engines were at once stopped, and the master went aft, before he got aft it was reported to him that the wheel was all right, and thereupon the pilot started the engines on again as before. Almost immediately, when the engines had only made three revolutions, the master observed that the movement of the wheel produced no corresponding movement of the tiller and rudder, and he at once ordered the engines to be stopped, and reversed full speed, but before the way of the ship was stopped, the collision had happened. After hearing tho evidence and argument on the facts the Judge retired with the Trinity Masters and put the four following questions to them, which he afterwards stated in the course of his judgment: (1) Was the Virgo under the circumstances bound to keep her engines stopped ? (2) Was she bound to anchor ? (3) Was she wrong in crossing the bows of the ketch ? (4) Was she going too fast? All of which they answered in the negative. The argument of the point of law whether under these circumstances the Virgo was iiable for the damage was postponed till If Nov., 13, 1876.-Milward, QC. and Edward Pollock, for plaintiffs. It is for the defendants to prove inevitable accident, and they have not done so. The screw of the steering apparatus was not sufficient for its purpose, or it would not have broken with an ordinary strain. the strain was extraordinary there was negli gence on board the Virgo in putting her in a position when it became necessary to put on such a strain. There is no evidence to show how it was broken, and therefore negl gence of some sort must be presumed to have broken it. After it was broken the accident might have been avoided if the Virgo had reversed her engines at once, or anchored, or even con. tinued stopped, but notwithstanding distinct notice that something was wrong with the steering apparatus, the ship was allowed to proceed on a mere suggestion that it was all right again without any steps being taken to ascertain what had been wrong, and this in itself is negligence causing the collision. The cases where an inherent defect in a machine undiscoverable by ordinary means has been held to relieve the party using it from liability for damage done by it are cases of contract: Redhead v. Midland Railway Company (L. Rep. 4 Q. B. 379: 20 L. T. Rep. Ñ. S. 628). There the passenger carried could not make the carrier of passengers liable for anything outside of the contract, which was to use reasonable care; here there is no contract, it is a tort or trespass, and the defendant is liable for any damage he does. There is no reason why the plaintiff should suffer loss because the defendant uses a machine insufficient for its purpose. It has been laid down by the Privy Council that a plaintiff to avail himself of the defence of inevitable accident, "must take all such precautions as a man of ordinary prudence, and skill, exercising reasonable foresight, would use to avert danger: (The William Lindsay, ante, vol. 2. p. 118; L. Rep. 5 P. C. 338; 29 L. T. Rep. N. S. 355.) And in that case it was held that those conditions were satisfied; here it has not been shown that they were. Where a machine is under the management of a person, and an accident happens out of the ordinary course by means of the machine, it affords reasonable evidence of negligence in the person using it (Scott v. London and St. Katharine Docks Company, 3 H. & C. 596; 13 L. T. Rep. N. S. 148), and that is the present case. Butt, Q.C., Aston, Q.C., and E. C. Clarkson, for the defendants.-This case cannot be distinguished from The William Lindsay (ante, vol. 2, p. 118; L. Rep. 5 C. P. 338; 29 L. T. Rep. N. S. 355). That it was done by a jerk or undue strain is a new case entirely and cannot be raised now, it was a question for Trinity Masters: (The Marpesia, ante, vol. 1, p. 263.) We have satisfied the onus of proof by showing that we took reason. able care. To anchor would have been certainly dangerous and probably useless: (The C. M. Palmer, ante, vol. 2, p. 94; 29 L. T. Rep. N. S. 120.) The case is stronger than that of Readhead v. Midland Railway Company (L. Rep. 4 Q. B. 379; 20 L. T. Rep. N. S. 628). If a carrier of passengers has no liability in such a case to a person whom he has contracted to carry safely, à fortiori he has none to a third party. If we get judgment we are entitled to our costs; the plaintiffs knew our defence, and had every opportunity of ascertaining by inspection and otherwise its validity. The London, B. & L. 82; 9 L. T. Rep. N. S. 348; The Royal Charter, L. Rep. 2 Adm. 362; 20 L. T. Rep. The Marpesia, ante, vol. 1, p. 263; L. Rep. 4 P. C. 212. Nov. 17-Sir ROBERT PHILLIMORE.-In this case of collision, in which the plaintiffs are the I ADM. owners of the vessel Gem, and the defendants the owners of the vessel Virgo, the case for the plaintiffs is that on the morning of the 17th June 1876, the Gem, a small schooner, was riding at anchor in a proper place near the Deptford buoys in the Thames, that the Virgo, a large screw ship, ran into her and sunk her. The defence of the Virgo is that she was going up the river with a good look out, at the rate of six knots, that she saw the Gem about half a mile off, that having ported for a few barges, which she cleared, she then steadied and afterwards starboarded, which was the proper manœuvre to clear the Gem; that at this time there was no danger of collision, if she had answered her starboard helm, but the second mate came to the captain and told him there was something amiss with the wheel, and at the same time the man came from the wheel and reported to the captain that there was something wrong with the helm, the captain ascertained that the rudder and wheel were not acting together and gave, through the pilot, the order to stop and reverse appears that very shortly before this time, something wrong had been discovered, but the mate having reported "all right,” an unsuccessful attempt had been made to go on. That in consequence of this breaking of the steering gear the Virgo did not answer her starboard helm, and ran with her stem into the starboard side of the Gem. In these circumstances the contention is that the collision was the result of inevitable accident. It It was argued on the part of the Gem, first that the accident was not inevitable, and secondly that if inevitable the Virgo was still liable for the damages which she had inflicted on the Gem. On the part of the Virgo evidence of the most conclusive character was produced to show that the steering gear was thoroughly good in every respect when it was put up in the vessel in the proper manner; and that it had been surveyed from time to time, and reported to be in perfect condition; that the accident had happened in consequence of the piston breaking off under the nut; that on examination of the piece of iron, which was produced in court, two small flaws were discovered in the centre of it which had caused the iron to break, that these flaws were latent, not to be detected by any means, probably formed in the course of use by some severe straining of the helm. The grounds upon which the Gem contended that the accident was not inevitable were that it might have been avoided; first, by her stopping dead in the first instance, before the man came from the helm; secondly, by anchoring; thirdly, by having proceeded at a slower rate fourthly, by having gone astern of the barges, instead of crossing their bows. All these points I submitted to the Trinity Masters, and they advised me, upon a consideration of all the circumstances, that with respect to none of them was the Virgo to blame. The advice appeared to me to be sound, and I followed it. There then remained these questions of law: First, Whether the Virgo had discharged the burden of proof which lay upon her of showing that the accident was inevitable? I was of opinion that she had. Second, though the Virgo was guilty of no negligence, and the accident was inevitable, whether she was not still liable for the damage to the Gem? I am of opinion that on this point the case falls within the principle of law laid down by |