H. OF L.]

Did they, by undertaking it, impliedly agree with the vendors that, if the rice was destroyed after any part had been shipped on board the Sunbeam, the loss should be theirs? Did this act change the nature of the contract, the stipulations of which, enabling the vendors to take the bill of lading in their own name and to send it forward with the draught, were primâ facie, though not conclusive, evidence of the interest and property remaining in them? What was the nature of the risk which the plaintiffs were supposed to have undertaken ? In the words of Blackburn, J., in Castle v. Playford, it was, "If the property perishes by danger of the seas, I shall take the risk of having lost the property, whether it be mine or not.' If this was really their undertaking, every bag of rice shipped on board the Sunbeam was at their risk, and the loss of it must have fallen upon them. But the Court of Common Pleas held that, as the plaintiffs would not, if the ship had sailed and arrived with what was on board of her when she sank, have been obliged to accept what was on board, they were not bound to pay for the rice which was on board and lost when the ship sank; from which it would seem to follow that the plaintiffs were not exposed to any risk of loss before a complete cargo had been shipped on board the Sunbeam.

There being, therefore, conflicting evidence of intention as to the interest in the rice passing to the purchasers or remaining in the vendors, the effect of the written contract being that the interest was to continue in the vendors until the completion of the cargo, and the consent of the purchasers to insure not shifting the property during the loading and before the cargo was complete, and it being at the utmost an indication of intention to assume the risk, I think your Lordships should not look out of the con. tract, but determine the rights and the liabili ties of the parties by it alone. It was not disputed that by the terms of the contract the plaintiffs were not bound to take less than a complete cargo of rice, and that they had an option either to accept or reject a part cargo. If they had exercised this option by accepting what was board before the Sunbeam sank as a fulfilment of the contract on the part of the vendors, they would have had an insurable interest in the rice at the time of the loss.

on

The Court of Common Pleas thought the property had not passed out of the vendors at this time, but they were of opinion "that there was such an appropriation of the rice on board to the contract as to prevent the sellers from withdrawing that rice without the consent of the buyer;" thus apparently fixing the buyer with the risk of the rice, from time to time, as it was put on board. Upon this, Blackburn, J., in his judgment in the Exchequer Chamber, observed, "If we could see anything to indicate an intention that as each bag was shipped it should be at the buyers' risk, we should think it indicated an intention that it should not be taken out without his consent; but we cannot find anything to this effect."

Now, an intention that each bag of rice shipped should be at the risk of the purchasers was necessary to be established as a foundation for the argument maintained by the learned counsel for the appellants, that, if part of the rice had been shipped and had been damaged while on board, the vendors might,

[H. of L.

without removing it, have gone on loading the rice until a full cargo had been put on board, and have delivered it to the purchasers, who would have had no option, but must have accepted it as a faithful performance of the contract. Sir H. James went further than that, and argued that, even if part of the cargo shipped had been totally destroyed by fire, and the vendors had come with a further quantity of rice to be shipped, the master must have taken it in, and if the Sunbeam had afterwards arrived with a quantity of rice which, together with that destroyed, would have amounted to a full cargo, the purchasers could not have refused to accept it. This rather bold proposition requires for its support that it should first be established that each bag of rice as it was shipped on board was appropriated to the purchasers and was at their risk. Assuming that the rice was not the purchasers' property, nor at their risk, as Bramwell, B. thought, I cannot agree that in the circumstances supposed there could be a performance of the contract. The purchasers were entitled to a full cargo of merchantable rice, and were not bound to accept less than a full cargo. The learned counsel for the appellants argued that after the Sunbeam sank with a deficient cargo the purchasers had a right to exercise their option, and to accept the rice at the bottom of the river in fulfilment of the contract. As between the purchasers and the vendors there was nothing to prevent the purchasers, if they chose to do so extraordinary a thing, from taking the perished rice and paying the invoiced price for it. But the case was between the purchasers and the underwriters. The purchasers were entitled to a cargo of rice shipped on board the Sunbeam; the option which they wero entitled to exercise related to a cargo of rice on board that ship, and no other. Both vessel and cargo were utterly lost, and therefore what subject was in existence upon which an option could be exercised? After the loss, the purchasers were not bound to pay for the rice, and the vendors could not insist upon payment. If there had been no insurance it could not be supposed that the purchasers would have taken to and paid for the rice at the bottom of the river. The payment was entirely voluntary, and, instead of being the exercise of a bona fide option by the purchasers, was only made by them and accepted by the vendors with the view of relieving themselves and throwing the loss upon the underwriters..

In these circumstances I think that the judgment of the Exchequer Chamber was right and ought to be affirmed.

Lord HATHERLEY.-Although the question in this case is one of considerable difficulty, the contract itself is easy to construe. It clearly appears to have been within the contemplation of the parties that the property in the rice should not pass to the buyers, at least until the vendors could attach the drafts; but I do not think the question of risk depends entirely upon the question of the passing of the property. The proper test appears to me to be this-what was at the plaintiffs' risk at the time when they effected the policy of insurance? Now it is clear that nothing could be at their risk, except what they had purchased, namely, the cargo of the Sunbeam, and no property could pass until such cargo was actually in existence. They were under no obligation to accept a half cargo, or any smaller portion, and as

H. OF L.]

there was never a cargo of merchantable rice in existence it is difficult to understand how there could be any cargo at the buyer's risk. Then it is said that they were entitled to exercise an option as to the acceptance of the rice which had been actually shipped; but I know of no authority which would warrant us in holding that such an option may be exercised as against the insurer after the actual loss of the partial cargo. I feel an equal difficulty in holding that there could have been two separate risks, one of the vendors and the other for the vendees, in operation at the same moment. I therefore concur with my noble and learned friend who has already addressed your Lordships, in thinking that the judgment appealed against ought to be affirmed.

Lord O'HAGAN.—I deliver my opinion upon this case with considerable diffidence, because it is opposed to the views of the two noble and learned Lords who have already addressed this house; but I cannot arrive at any other conclusion than that the property in the rice actually shipped had passed to the plaintiffs before the loss of the vessel. The case of Appleby v. Myers (L. Rep. 7 C. P. 651) does not appear to me to be in point, for the decision then turned almost entirely upon the terms of the contract. I rather prefer to base my decision upon Aldridge v. Johnson (7 E. & B. 855) and Langton v. Higgins (4 H. & N. 402), which seem to establish that each bag of rice, as soon as it was shipped, was so far appropriated to the plaintiffs that the contents became their property. Under these circumstances I adopt the view of the Court of Common Pleas, that the purchasers had an insurable interest in the rice which was lost, and I farther think that the whole conduct of the parties leads to the inference that each part of the cargo when shipped, was intended to be at the plaintiffs' risk. The law on this subject was well stated by Willes, J., in Joyce v. Swann (17 C.B., N.S.,84), and liability to insure goods must always be strong evidence of a liability to the risk of their loss. I think the judgment appealed against ought to be reversed.

Lord SELBORNE.-My Lords, it is my misfortune to differ from two of your Lordships, as well as from the majority of the court below, my opinion being that the case was placed upon its proper ground by the dissentient judgment of Quain, J., in the Exchequer Chamber.

It is on all hands admitted that, if by the contract between the parties the rice was to be at the risk of the buyer while in course of shipment at Rangoon, the plaintiffs (the appellants bere) are entitled to recover. I do not consider it necessary that the intention should have been expressed in the bought note. It was sufficient if it appeared by evidence proper to be considered by a jury that the parties did in fact so agree. But I cannot read the terms of the bought note without drawing from them the inference, which there was certainly nothing in the rest of the evidence to repel, that the intention of the parties was that the goods should be insured by the buyer. The majority of the judges of the Exchequer Chamber were of opinion that, as the time when the sellers under the terms of the contract would be entitled to draw upon the buyers for the price of the goods, and when the buyers would be bound to accept the goods in fulfilment of their contract, would not arrive until a full cargo had been pat on board, the risk, against which the buyer was

[H. OF L.

intended to insure, would commence at the same time and not earlier. I am unable to agree in that opinion because the evidence satisfies me that this was not the actual understanding or intention of the parties.

On the day after the contract, when there could be no object in shifting any burden from the right to the wrong party, the buyers did actually insure in terms which covered every bag of rice put on board from the first commencement of the loading of the vessel. The fact that such an insurance had been made seemed not to have then been communicated to the sellers. But they made no insurance, and on the 6th March 1872, when the vessel was in the Rangoon river, exactly three days before she began to take in her cargɔ, they advised the buyers by telegram that she was there, and called their attention to insurance." I can only understand that as meaning that the time was then close at hand at which, by the commencement of the loading of the cargo, the risk intended to be insured against by the buyer would begin. Nor does it appear to me to be reasonable, or according to the probable and ordinary course of mercantile usage, that when a cargo was to be loaded at a given place on board a particular ship for a particular adventure, and when the duty of insurance was undertaken by the buyer, the parties should be supposed to mean to divide the risk, so that the buyer should insure after the cargo was complete, and the seller (though nothing was said about it) until that time. When we have once got so far as the direct evidence leads us in this case, the presumption appears to me to be against such a distinction, and the burden of proof to lie upon those who affirmed it. Mr. Baron Bramwell, whose opinion I always hold in the highest respect, considered it a sufficient answer that there might be a risk while the goods were on their way to and not yet on board the ship, against which it would certainly not be for the buyers to insure, and that the line must always be drawn somewhere. I am not satisfied with that argument. The line in this case appears to be clearly drawn by the contract. Whatever was within the scope of the contract is on one side of that line, and whatever was not is on the other. The parties, had, of course, in their contemplation the cargo of the ship, and that only, and goods neither placed on board the ship as part of that cargo nor subject to any maritime risks of that particular ship as hired for that particular adventure would be altogether outside of this contract, and entirely unaffected by its provisions. But surely it is otherwise with regard to goods put on board as part of the cargo and subject to the maritime risks of the ship as hired for the particular adventure. The subject of the contract was "the cargo," not specific goods nor a defined quantity of goods. Nothing can be less likely than that when the buyers undertook to insure, an insurance was meant which would not cover the whole risk of the adventure from its commencement as to every part of the cargo; or that they should have thought of such a refinement as that goods put on board for the purpose of the adventure were not to be regarded as cargo" for the purpose of insurance, until the whole lading was completed.

As I understand that the purchasers were to insure, I hold that fact is sufficient for the decision of the case. Mr. Justice Blackburu, in the case of Allison v. The Bristol Insurance Company (ante

p. 178; L. Rep. 1 App. Cas. 209; 34 L. T. Rep. N. S. 809), said," According to my experience merchants attach very great weight to a stipulation as to who is to insure as showing who is to bear the risk of loss." I agree entirely in that remark, which is supported by several authorities. It appears to me that the case resembles Castle v. Playford (3 Mar. Law Cas. O. S. 407; ante, vol. 1, p. 255), in that it was contemplated that the buyer should bear the risk, and that the case of Gilmour v. Supple (11 Moore, P. C. C. 557) is also an authority in point. On the other hand, the cases cited on behalf of the defendants do not appear to throw any light on the question. It appears to me that enough rice had been shipped on board at the time of the loss for the cargo to be at the purchaser's risk. I think, therefore, that it was intended that the buyer was to bear the risk of loss in this case.

In my opinion the judgment of the Court of Exchequer Chamber ought to be reversed, and I confess I very much regret the decision which will pass in the name of your Lordships' house as being a failure of what seems to me to be substantial justice.

Lord CHELMSFORD.-There is a cross appeal by the defendant, and the sole question is, whether there was evidence for the jury of a loss by the perils insured against. It is needless for me to go through the facts set out in the case. I will only say that since there was evidence of seaworthiness there was evidence which justified the jury in finding that there was a loss by the perils insured against. I therefore move your Lordships that the judgment of the Court of Exchequer Chamber upon this point be affirmed with costs. Lords HATHERLEY, O'HAGAN, and SELBORNE Concurred. Judgment affirmed with costs. Solicitors, Parker and Clarke; Hollams, Son, and Coward.

Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT LINCOLN'S INN. Reported by H. PEAT, JAMES P. ASPINALL, and F. W. RAIKES, Esqs., Barristers-at-Law. Tuesday, July 18, 1876.

(Before JAMES and MELLISH, L.J.J., and BAGGALLAY, J.A.)

BARING v. STANTON.

Principal and agent-General agent-Discount on insurances-Commission.

A shipowner had for several years employed merchants as his general agents at a remuneration, and they had effected insurances on his ships. In their accounts they charged him with the full insurance premiums, although they were allowed by the underwriters to retain out of the premiums 5 per cent. brokerage, and 10 per cent. discount for ready money, in accordance with the custom of the trade.

Held, that as these allowances were usually made

and as the shipowner had for years assented to them, he could not now object to allow them to retain these allowances on taking the accounts in a suit with regard to a mortgage on certain ships of his,

[CT. OF APP.

Decision of Bacon, V.C., affirmed. Turnbull v. Garden (20 L. T. Rep. N. S. 218), distinguished.

THIS was an appeal from a decision of Bacon, V.C. The hearing in the court below is reported ante, p. 246, where the facts of the case are fully stated.

The shipowner appealed.

Kay, QC. and Caldecott, for the appellant.-The Great Western Insurance Company v. Cunliffe (ante vol. 2, pp. 219, 298; 30 L. T. Rep. N. S. 661; L. Rep. 9 Ch. 525), on which the Vice-Chancellor based his judgment, does not apply to this case at all. The distinction is that the defendant in that case was employed as an insurance broker and nothing else, while here the plaintiffs are general agents as merchants and not simply insurance brokers. They are general agents on terms of special remuneration, which does not include the right to charge specially as insurance brokers. The five per cent. brokerage is sufficient remunera-tion, and they have no right to retain the ten per cent. discount. As agents, they should, in their accounts, have disclosed all the allowances made to them, and the defendant was not bound to make any inquiry. They must pay over the discount totheir principal:

Turnbull v. Garden, 20 L. T. Rep. N. S. 218; 38 L. J.
331, Ch. ;

Queen of Spain v. Parr, 21 L. T. Rep. N. S. 555; 39
L. J. 73, Ch. ;

Palmer v. Butcher, 10 B. & C. 329.

Cotton, Q.C. and J. Kaye, for the respondents, were not called upon.

JAMES, L.J.-I am of opinion that the order of the Vice-Chancellor in this case ought to be affirmed.

The question is, whether this case is governed by the decisions pronounced by me as ViceChancellor in the Queen of Spain v. Parr, and in Turnbull v. Garden, or by the case of The Great Western Insurance Company v. Cunliffe. It appears to me that that last case really governs the present case. In that case Mellish, L.J., observed (ante, vol. 2, p. 290; 30 L. T. Rep. N. S. 664-5; L. Rep. 9 Ch. 539): "Then it is quite obvious that they must have known, and they do not deny that they did know, that Messrs. Pickersgill were to be remunerated by receiving a certain allowance on discount from the underwriters with whom they made the bargains. It was easy to ascertain by inquiry what was the usual and ordinary charge which agents who effect reinsurances are entitled to make. If a person employs another, whom he knows carries on a large business, to do certain work for him as his agent with other persons, and does not choose to ask him what his charge will be, and in fact knows that he is to be remunerated, not by him but by the other persons, which is very common in mercantile business, and does not choose to take the trouble of inquiring what the amount is, he must allow the ordinary amount which agents are in the habit of charging." That really seems to me to govern this case.

It is quite clear that it was known to everybody connected with insurances that the insurance offices were in the habit of making allowances, by way of brokerage and otherwise, of 12 per cent. of the profits, or 10 per cent. discount, and also 5 per cent. brokerage, so much so, that some of the documents produced actually contain those terms printed as a common form. It is quite obvious

that this is a recognised practice of the insurance offices. That being so, it is very difficult to believe that Mr. Stanton did not know that Messrs. Baring were receiving from the insurance offices such allowances as the offices were in the habit of making. Their dealings go on for years. Mr. Stanton never takes the trouble to make inquiries, but settles all the accounts, and deals with Messrs. Baring on that footing; and it is not unimportant in this case to observe that when he filed a billit is true, for another object, namely, to have a declaration that the conveyance of the ships was by way of mortgage only-and asked that, upon the footing of that mortgage, the accounts might be taken, he actually accepted the course of business between the two firms including the very thing which is now the subject of this discussion. After that, as between himself and Messrs. Baring, it seems to me impossible to allow him to re-open an account which has gone on from the year 1861 to the year 1872.

I am, therefore, of opinion that the order of the Vice-Chancellor ought to be affirmed, and the appeal dismissed with costs.

MELLISH, L.J.-I am of the same opinion.

I think that this case cannot in principle be distinguished from the case of The Great Western Insurance Company v. Cunliffe. It appears that there are two ordinary modes in which agents employ underwriters-the cash system and the credit system. According to the credit system the accounts are made out at the end of the year; all the premiums which the particular merchant or agent has brought to the underwriter are put on one side, and all the losses are put on the other side, and then, if there is a profit, the underwriter allows the merchant 12 per cent. on that profit. We held that the merchant or agent who brought the business was entitled to keep that profit. The cash system, which was adopted in the present case, is this: Some underwriters, particularly new insurance companies, object to a long credit system, and prefer a system by which they get their premiums paid at once. They are willing to make a sacrifice for the purpose of obtaining prompt payment, and on payment, instead of the 12 per cent. on the net profits, if the premium is paid within a fixed number of days after the insurance is effected, they make an allowance of 10 per cent., the customers being charged with the premiums just as before. If that is generally known and acquiesced in, I cannot conceive that it is a fraud upon anybody.

It may be a misfortune to Mr. Stanton that, being an American, he really did not know the usage in London. But if a person comes and trades in London, he must make himself acquainted with the usages in London, and when he employs the Messrs. Baring he must expect the Messrs. Baring to treat him in the same way as they treat all their other customers; and he cannot be entitled, because, after ten years' business transactions with them, he quarrels with them, to say that they should treat him in a different way from that in which they treat anyone else. According to the evidence of Messrs. Baring's clerk, this is the way in which they invariably charge their customers, and if Mr. Stanton had inquired before he employed Messrs. Baring what their charges were, they would have told him that these were their charges. But he had confidence in them, and he thought they would charge what

[CT. OF APP.

was right whether he asked them or not, and he cannot now be allowed to open the accounts. I think we do not at all overrule the case of Turnbull v. Garden, because, as I understand it, in that case the party from whom the discount was taken was not in the position of Messrs. Baring, but was an agent for somebody else. The real brokers were willing to allow a discount, and then the question was whether the next agent, could keep it in his own pocket, or was bound to give it to the principal, which was an entirely different question.

I am of opinion, therefore, that the judgment of the Vice-Chancellor in this case ought to be affirmed.

BAGGALLAY, J.A.-I am of opinion that this case is entirely governed by the decision in The Great Western Insurance Company v. Cunliffe, and that there is nothing whatever in that case which was antagonistic to the principle established in the cases of Turnbull v. Garden and Queen of Spain v. Parr. It appears to me that exactly as in The Great Western Insurance Company v. Cunliffe Messrs. Pickersgill were employed, in this case Messrs. Baring were employed to do a particular business, namely, that of insuring, and they were making certain profits incidental to the carrying on of that business. That certainly appears to have been the view of the case which was taken by Mr Stanton when he filed his bill against Messrs. Baring, the statements in which bill he verifies by affidavit in a form which implies that that was the ordinary and usual course of business, and that he had been aware of it throughAppeal dismissed with costs. Solicitors for the appellant, Shum, Crossman, and Crossman.

out.

Solicitors for the respondents, Markby, Tarry and Stewart.

Dec. 6 and 7, 1876.

(Before JAMES L.J., BAGGALLAY and BRETT, JJ.A.)

ON APPEAL FROM THE ADMIRALTY DIVISION.
THE FRANCONIA.

Collision-Steamships-Overtaking- CrossingSlackening speed-Regulations for preventing collisions at sea, Articles 14, 16, 17.

As a general rule wherever two steamships are on converging courses, the one abaft the beam of the other in such a position that the hinder ship cannot see the side lights of the leading ship, the former, if going at a greater speed than the latter, is to be considered as a vessel overtaking another vessel, within the meaning of Article 17 of the regulations for Preventing Collisions at Sea, and bound to keep out of the way; and they are not to be treated as crossing vessels under Article 14.

Where one steamship is overtaking another within the meaning of Article 17 of the Regulations, and there is risk of collision, the leading ship is not to be considered as approaching another ship so as to involve risk of collision within the meaning of Article 16, and is not bound to slacken speed, or stop and reverse.

Where two steamships are navigating open waters, such as the English Channel, some miles from land, one has no right to assume that the other will at a given time or place alter her course and take another course up or down channel, but

the former must, as the other ship approaches, take such measures as are required by the regula tions in reference to the course upon which such other ship actually is.

THIS was an appeal from a judgment of the High Court of Justice (Admiralty Division), in cross actions of collision respectively brought by the owners of the British steamship Strathclyde against the German steamship Franconia, and by the owners of the Franconia against the owners of the Strathclyde, to recover damages in respect of a collision between the two steamships which occurred off Dover, at about 4 p.m. on the 17th Feb. 1876.

The Strathclyde was a screw steamship of 1254 tons register, and 180 horse power nominal, was manned by a crew of forty-seven hands, had a number of passengers on board, and was bound upon a voyage from London to Bombay.

The Franconia was a screw steamship of 2111 tons register, and 360 nominal horse power, had a crew of seventy-three hands, and was bound upon a voyage from Hamburg to Havre, and thence to the West Indies. The Franconia had in the course of her voyage called at Grimsby, and was proceeding from that port to Havre.

The Strathclyde having a Thames pilot on board, stopped about half a mile east south east of Dover Pier, and landed the pilot.

After some little delay she went ahead full speed, steering a S.W. true course (S.W. by S. by the ship's compass) to get a good offing before straightening down on to the usual channel course, which is W.S.W. At this time the master of the Strathclyde sighted the Franconia, which was steering a W.S.W. course (W.S.W. S. by ship's compass) down channel, going full speed, and then bore about two points on the port quarter of the Strathclyde, and distant from two to three miles. The two vessels continued on their respective courses until within a quarter of a mile of one another, when the Franconia was overlapping the quarter of the Strathclyde by about one-third of her own length. At this time the Strathclyde ported half a point, and the two vessels continued their course until the two vessels were from two to three ships' length from one another, when the Franconia stopped and reversed her engines and ported her helm, and her master hailed the Strathclyde to port. The helm of the Strathclyde was accordingly ported, and her engines were kept going full speed ahead, but the Franconia with her stern struck the Strathclyde about sixty feet from the stern, and damaged her so seriously that she shortly afterwards sank. The relative positions and speed of the two ships were in dispute between the parties; the Franconia's crew had sighted the Strathclyde before she went into Dover Bay to land her pilot, and had watched her coming out again, and they alleged that when she began to come out again she bore about six points on the starboard bow of the Franconia, and that the Strathclyde must have been going much faster than the Franconia to have brought about the collision. The alleged speed of the two vessels was about the same, viz., about 8 knots an hour; but while that was the full speed of the Strathclyde the full speed of the Franconia was from 10 to 12 knots an hour, and she had been actually running her full speed up to noon on the day of the collision; it was alleged that the reduction in speed was owing to bad coals; the same had been

[CT. OF APP.

burnt on board the Franconia during the whole time since she left Hamburgh. On the other hand, it was alleged by the Strathclyde that the positions of the two vessels as she left Dover Bay were as given above in the account of the collision, and that the speed of the Franconia was greater than that of the Strathclyde (these were found to be the facts by the judgment). There was no dispute however as to the courses of the two vessels, and their positions at the time of the final porting before the collision.

After the collision the Franconia rendered no assistance to the passengers and crew of the Strathclyde, and a great many were drowned in consequence, and the neglect to do so was made a substantive charge against the Franconia under the provisions of the Merchant Shipping Act, 1873, sect. 17; the defence, however, was that the Franconia was so damaged that her master believed her to be in a sinking condition, and made for the shore to beach her.

The Franconia was further charged by the owner of the Strathclyde with omitting to keep out of the way of the latter vessel, as it was her duty to do, either under Art. 14 of the Regulalations for Preventing Collisions at Sea, which provides that "if two ships under steam are crossing so as to involve risk of collision, the ship which has the other on her own starboard hand shall keep out of the way of the other; " or under Art. 17, which provides "that every vessel overtaking any other vessel shall keep out of the way of the said last-mentioned vessel.'

The owners of the Franconia alleged that the Strathclyde by her conduct had deceived the officers of the Franconia, who had reason to expect that the Strathclyde, before approaching so near to the Franconia would have got on to her proper channel course, viz.: W.S.W., aud have then been parallel to the Franconia,and that it was the persistent holding on of the Strathclyde upon her S.W. course, which she ought to have changed sooner under the circumstances, that brought about the collision; and they charged the Strathclyde with im. properly neglecting or omitting to take in due time and keep her proper course down Channel,and with steering her across the hawse of the Franconia, and also with neglecting to comply with the provisions of art. 16 of the regulations, which provides that "every steamship, when approaching another ship so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse."

On April 27, 28, 29, and 30, and May 2 and 3, 1876, the case was heard before Sir R. Phillimore and Trinity Masters.

Butt Q.C. (Clarkson and Webster with him), for the Strathclyde, contended that under the Merchant Shipping Act 1873, s. 16, the master of the Franconia was bound to render assistance to the Strathclyde, and having neglected to do so the Franconia must be held to blame. Moreover whether the vessels were crossing or the Franconia were an overtaking ship it was equally her duty to keep out of the way of the Strathclyde. The Strathclyde had kept her course as she was bound to do, and the Franconia was alone to blame.

Benjamin, Q.C. (Cohen, Q C. and W. G. F. Phil limore with him), for the Franconia, admitted that the Franconia was to blame, but contended that the vessels must be treated as crossing vessels under art. 14, and that they were, therefore, approaching so as to involve risk of collision, and