such last mentioned person, make such order as may be proper for having the question so determined." Under that rule the order complained of by the British Agricultural Association was made. Rule 18 provides the mode in which such notice is to be given; the leave of the court or a judge is required before issuing such notice, and it is to be served "according to the rules relating to the service of writs of summons," and it may be in the form given in the appendix. Form 1, Appendix B., is the form provided, and part of it is that if the third person wishes to dispute the plaintiff's claim he must cause an appearance to be entered within eight days. If the third party desires to appear he can do so, and by rule 20 if he appears, he must do so within eight days, and if he does not cause an appearance to be entered for him, he is bound by the judgment given in the action, but the rule provides that a further time for entering an appearance may be allowed by a judge. Then by rule 21, which is an important one, "If a person not a party to the action, served under these rules, appears pursuant to the notice, the party giving the notice may apply to the court or a judge for directions as to the mode of having the questions in the action determined; and the court or a judge, upon the hearing of such application, may, if it should appear desirable so to do, give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered, or such amendments in any pleading to be made, and generally may direct such proceeding to be taken, and give such directions as to the court or a judge shall appear proper for having the question most conveniently determined, and as to the mode or extent in or to which the person so served shall be bound or made liable by the decision of the question." So that a third party can by the aid of the court or a judge under this rule, limit the extent of the decision by which he is bound, and a judge may give directions as to the portion of costs to be borne by the third party, and make the actions distributive.

As to the service of a notice out of the jurisdiction, Rule 1 of Order XI. provides that by leave of the court or a judge, service of a writ may be made, or notice of a writ of summons may be served out of the jurisdiction whenever the contract was made, as was the case here, within the jurisdiction. Rule 4 of Order XI. provides that "any order giving leave to effect such service or give such notice, shall limit a time after such service or notice, within which such defendant is to enter an appearance, such time to depend on the place or country where or within which the writ is to be served or the notice given.

[CT. of App.

days, which is insufficient when the party served resides out of the jurisdiction and in a distant country, and the proviso, as to getting the time extended, would be inapplicable to the case of a person abroad, and, not intended to apply to persons out of the jurisdiction. No doubt when rule 20 was drawn this case of third person out of the jurisdiction was not in the mind of the draftsman. The answer is to be found in rule 4 of Order XI., where it is provided that the order giving leave to serve a notice out of the jurisdiction on the third parties, is to name a time within which a defendant living out of the jurisdiction is to enter an appearance, depending on the place or country where the writ is to be served; and if the number of days allowed for appearance is more than eight, then rule 20 of Order XVI. must be taken to be so far modified that an appearance within the time limited, though more than eight days, would be sufficient.

On the other ground, upon which the Queen's Bench Division seem to have mainly decided, it is said that the whole cause of action between the plaintiffs and defendants, and the defendant and third party must be identical in order to allow the defendants the advantage of rule 17. I do not think that is so; no doubt the question between them must be a substantial " question" in the action, and it is not every fringe of the subject which will do. The court can consider whether the plaintiff if he objects to the introduction of the third party, would be prejudiced or delayed in his action. The plaintiffs do not object here.

as

The object of these enactments was to prevent the same question being tried twice over, where there is any substantial question common between the plaintiff and defendant in the action, and as between the defendant and a third person; and in such a case the third person is to be cited to take part in the original litigation, and so to be bound by the decision on that question once for all. And the point really is whether there is such a question" in the present case, which can advantageously be tried and decided, not only as between the plaintiffs and the defendants, but as between the defendants and the British Agricultural Association.

66

The action was brought on a charter-party, and the alleged breach is that the defendants failed to discharge the cargo as fast as the custom of the port of Leith would allow according to the terms of the charter-party, and the claim is for 121. a day demurrage during thirty-one days. The defendants say that they sold the cargo to arrive to the British Agricultural Association, and that a sale of cargo to arrive casts upon the purchaser the same obligations as to discharge as the vendor was under, and that that is the usage of trade. There is an affidavit filed which states this, and it is uncontradicted. (a) On the other hand it is said that whilst the defendants were bound to discharge the vessel and find a berth for her, the buyer of the cargo "to arrive" has to take delivery

tion. The answer to that is that Order XVI., Rule 17, provides that service of the notice shall be " according to the rules relating to the

service of writs of summons," and therefore Rule 1 of Order XI. applies. But it is said that by Rule 20 of Order XVI., the time in which a third party served with a notice under Rule 17 may cause an appearance to be entered is within eight

by having to consider how far the default was the defendants, or how far the default of the defendants' vendees. But by the contract between the defendants and the British Agricultural Associa

(a) His Lordship referred to an affidavit filed for the defendants since the hearing in the Queen's Bench Division, and which after some hesitation, was allowed by the court to be used on appeal.

tion, the latter are to name the port of discharge, and that being so, it seems to me unreasonable, as they might name a place where the defendants had no agent, that they should not find a berth or discharge the ship. This view is strengthened by the fact that the buyers are to pay for lighterage. It appears to me to be the fair construction of the contract that the purchasers were to provide for the discharge, and, I think, therefore, that there is a substantial question common both between the plaintiffs and defendants, and the defendants and the British Agricultural Association as to whether the ship was discharged as fast as the custom of the Port, of Leith would allow, and that the defendants may properly cite the third parties in order to have it decided.

KELLY, C.B.-The substantial question to be tried between the plaintiffs and the defendants is whether the cargo of the plaintiffs' ship, the Helen Burns, was discharged as fast as the custom of the port of Leith would allow, and there is another question as to whether a berth was found for the ship. If a berth was not found the defendants would be liable. Then the question arises as between the defendants and third persons, whether the British Agricultural Association, in Scotland, is liable on the same ground and to the same extent to the defendants, as the defendants are alleged to be to the plaintiffs. It seems to me that they are. They purchased the cargo to arrive, and by their contract would be liable to discharge it according to the custom of the port. Here then there is a question to be determined between the defendants and the British Agricultural Association, which is really the same as the question between the plaintiffs and the defendants, and the defendants are entitled under the rules which have been referred to under Order XVI. to have the question determined once for all between themselves and the British Agricultural Association. I am of opinion, therefore, that our judgments should be for the defendants, and that the judgment of the Queen's Bench Division should be reversed.

MELLISH, L.J.-I am of the same opinion. There is no doubt in this case as to the position of the defendants, who as charterers are sued for not having discharged the cargo as fast as the custom of the port of Leith would allow, and who claim to be indemnified by third persons-the British Agricultural Association, who, the defendants say, ought to have discharged the cargo in the same way as the defendants themselves were bound to do. I think if the defendants make out a prima facie case that the substantial question between themselves and the plaintiffs is the same as between themselves and the third persons, the defendants are entitled to bring in those third persons, so as not to have the same question determined twice over. I do not think that we can now come to any final decision, even on the point whether there is the same obligation as to discharging between the plaintiffs and the defendants and between the defendants and the association; because to settle that question might involve trying the whole case between the defendant and their vendees. If the questions in dispute between the defendants and the third persons were made to appear to us really different, that of course would be a ground upon which the third persons might object to be brought in, and upon which we ought to

[CT. OF APP.

| refuse the order; but the Act, I think, gives no choice in the matter, where, as in this case, there is a clear primâ facie case made out by the defendants of the identity of a material question to be determined between the plaintiffs and the defendants, and the latter and the British Agricultural Association, and the plaintiff will not be prejudiced. In the contract between the defendants and the third persons I think it is implied that by the custom of the trade the vendees should discharge the cargo as fast as the custom of the port of discharge would allow, and the vendees are to pay the lighterage (if any), and name the port of discharge, which shows that as far as regards their contract with the defendants, they and not the defendants were to take in hand the discharge of the cargo. The affidavit before us so states, and is not contradicted. Moreover, upon the terms of the contract the buyers are to name the port of discharge and pay lighterage, if any, which goes to show that as between them and the defendants they are the persons to find the berth and conduct the unloading and not the defendants.

It is said that there may be a different measure of damages between the plaintiffs and the defendants, and between the latter and the third persons, because the British Agricultural Association are not bound by the demurrage clause in the charter-party, which is not mentioned or referred to in their contract of sale, and of which they had no knowledge; but the third persons would only be bound to the extent ordered by the judge under rule 21 of Order XVI., and the common question here being only whether or not the cargo was discharged as fast as the custom of the port of Leith would allow, the British Agricultural Association cannot be injured by any other decision in the case.

I am of opinion, too, with the Master of the Rolls, that the notice may be served out of the jurisdiction.

DENMAN, J,-I am of the same opinion. I think that the order of Master Unthank was rightly made under the 17th and 18th rules of Order XVI. As to the service I agree with the Master of the Rolls. I think that no injustice can be worked, when we look at rules 18 and 21 together, power being given under those rules to limit the effect of the notice on a third party, by directing upon the decision of what question in the action the third party is to be bound so as not to prejudice him.

Order of Queen's Bench Division reversed. Order for service of notice affirmed. Solicitors for the plaintiffs, Williamson and Co., for H. Field, Swansea.

Solicitors for the defendants, Field, Roscoe, and Co., for Bateson and Co., Liverpool. Solicitors for the British Agricultural Association, Simpson and Co.

Monday, Feb. 28, 1876.
THE BELGIC.

ON APPEAL FROM THE ADMIRALTY DIVISION.

Damage-Collision leaving dock-Dock master's authority-Pilot-Negligence af person in charge of ship-Insufficiency of equipment.

A vessel leaving dock with a pilot on board, and within the space over which the dock master's

authority extends by statute, is responsible for i damage resulting from the use of a tug of insufficient power by her master, even when such tug is in the general employment of the Dock Company, there being no obligation on the Dock Company to supply a tug.

THIS was a cause of damage instituted in the City of London Court by the Thames Iron Works and Shipbuilding Company (Limited), the owners of the dumb barge or lighter Kertch against the screw steamship Belgic (belonging to the port of Liverpool), and the Oceanic Steam Navigation Company (Limited) the owners of that vessel for the total loss of the Kertch, and her cargo through the alleged negligence of those on board the Belgic whilst that vessel was coming out of the Victoria Docks into the Thames on the 25th Nov. 1874. The cause was heard by Mr. Serjeant Petersdorff, deputy judge, on the 23rd July 1875, when it was proved that the Belgic, a vessel 370ft. long, was coming out of the Victoria Docks stern first into the river Thames, that there was a pilot on board, who said he was not in charge, but was in readi ness to take charge when the vessel got into the river, and that the dock master was on the quay giving directions, that the wind was blowing strong from the S.W. and up the river across the dock entrance, and that it was about an hour before high water, the tides being spring. There was a contradiction of testimony as to the person by whom some of the orders were given to regulate the movements of the ship, but at a time when all the ropes were cast off from the quay, and a tug of about 50-horse power belonging to the Dock Company had a hawser made fast to the starboard quarter of the Belgic, and was towing on it down stream, the force of the wind and tide on the Belgic's quarter overpowered the tug, and caused the Belgic's port quarter to come into contact with some barges lying at the upper pier head waiting to go into dock, crushing and sinking two of them, the Kertch, whose owners brought this action, and the Industry, whose owners brought a separate action, which it was agreed should be decided by the result of this one. There were a great number of barges lying at the same place, and it was proved that it was not uncommon for barges to lie there when waiting to go into dock, and that the Dock Company's servants were aware that the Kerich was lying there and had assisted to make her fast in her then position after moving her a little further from the dock gates than she originally had placed herself. On the quay wall and within a hundred yards of the place where the barges lay was a board and painted on the board:

NOTICE TO LIGHTERMEN AND OTHERS.

No craft or vessel of any kind is allowed to lie at the entrance, or within one hundred yards of the pier head of these docks, except with the permission of the dock master. Lightermen or other persons obstructing by their craft the free access to the landing place by the steam ferry boat, or allowing any barge or other vessel to be within the above limit without such permission, and, failing to remove such craft or vessel as being required to do so by the dock master, are liable to a penalty of five pounds, and a further sum of twenty shillings for every hour the said craft or other vessel is allowed to remain in such position (10 Vict. c. 27, s. 63); and the dock master is empowered to remove such craft or vessel, and hold the same until the cost of such removal is paid by the owner (10 Vic. c. 27, s. 58).

(Signed) CHARLES NORMAN, Superintendent. London and St. Katherine Docks Company. August 1870.

[CT. OF App.

After the collision the Belgic anchored for a few minutes outside the dock gates, and then proceeded on her voyage to New York. She had a cargo, but no passengers on board. The defendants had given notice of the defence of compulsory pilotage in accordance with Order XLIX. of the General Orders (Admiralty Jurisdiction) County Courts 1869, but had given no notice of any other special defence, and the following agreement had been made between plaintiffs and defendants: In the City of London Court, the Belgic.

All the orders of the pilot were properly carried out by the crew of the Belgic. No order was given by the master or officers of the Belgic to the helmsman or engineer of the vessel, or step taken by them, except by the direction of the pilot or dock master.

Dated this 30th day of June 1875.

(Signed) R. E. WEBSTER, for plaintiffs.

GAINSFORD BRUCE, for defendants. The learned Deputy Judge, after hearing Raikes with him Webster, for the plaintiffs, and Bruce, with him Malden, for the defendants, and consultation with the Nautical Assessors, gave judgment in the following terms: "Having had the very efficient and great assistance of the gentlemen assisting me in this inquiry, I have come to a conclusion, and so far as facts are concerned they agree with me, and we find that in fact the vessel was not under his (i.e., the pilot's) control either immediately before the collision or at the time of the collision or subsequent to it. I do not decide any point of law. I decide upon the evidence, and that evidence is recognised by the two assessors, who think that at the time of the collision the pilot was not the official in control or management of the vessel. With regard to the other point, as to whether there was negligence on the part of the master of the Belgic, these gentlemen, who are far more competent than I am to form any opinion upon the subject, have come to the conclusion, as a matter of fact on which they entertain no doubt, that, looking to the time, looking to the state of the tide, and looking to the condition of the wind, the necessary and proper precautions were not taken by the master of the Belgic, and that the accident which did happen-the collision which had led to this inquiry-was the result of his fault. We decide no point of law: we simply decide those facts as a matter of fact, without reference to any question that could be discussed of a technical character. Our judgment, therefore, is in favour of the plaintiff.'

From this judgment the defendants appealed to the High Court of Admiralty, and on the 16th Nov. 1875 the appeal came on for hearing.

The statutes on which the argument turned as to compulsory pilotage were The Victoria (London) Docks' Act 1853 (16 & 17 Vict. c. cxxxi.).

Sect. 49. That the docks shall be deemed and held to be situate within and part of the Port of London.

The Pilotage Act (6 Geo. 4, c. 125), repealed by the Merchant Shipping Repeal Act 1854 (17 & 18 Vict. c. 120), was as follows:

Sect. 63. Provided always, and be it further enacted, that when any ship or vessel shall have been brought into any port or ports in England by any pilot duly licensed, nothing in this Act contained shall extend, or be construed to extend, to subject to any penalty the master or mate, or other person belonging to such ship or vessel, and having the command thereof, or, if in ballast, any person or persons appointed by any owner, or master, or agent of the owner thereof, for afterwards removing such ship or vessel in such port or ports for the purpose of entering into or going out of any dock, or for charging the moor ings of such ship or vessel.

Sect. 72. That any licensed pilot who shall, without lawful excuse, refuse to take charge of any ship wanting a pilot, upon being required so to do by the master, or any person having the command thereof, or being entrusted therewith shall, for every offence, forfeit 1001. The Merchant Shipping Act 1854 (17 & 18 Vict. c. 104).

Sect. 353 continues all exemptions from compulsory pilotage existing at the passing of the Act.

Sect. 365. If any qualified pilot commits any of the following offences: that is to say (8) refuses or wilfully delays, when not prevented by illness or other reasonable cause, to take charge of any ship within the limits of his licence upon the signal for a pilot being made by such, or upon being required to do so by the master, owner, agent, or consignees thereof, or by any officer of the pilotage authority by whom such pilot is licensed, or by any principal officer of Customs He shall, for each such offence, in addition to any liability for damages at the suit of the party aggrieved, incur a penalty not exceeding 100l. and be liable to suspension or dismissal, &c., &c.

And those on which the argument as to the authority of the dockmaster were: The Harbour Docks and Piers Clauses Act 1847 (10 Vict. c. 27).

Sect. 2. The expression, "The Special Act," used in this Act shall be construed to mean any Act which shall be hereafter passed, authorising the construction or improving of any harbour, dock or pier, and with which this Act shall be incorporated; . • .. and the expression "the prescribed limits," used with reference to the harbour, dock, or pier, shall mean the distance measured from the harbour, dock, or pier, or other local limits (if any), beyond the harbour, dock, or pier, within which the powers of the harbour master, dockmaster, or piermaster, for the regulation of the harbour, dock, or pier, shall by the Special Act be authorised to be exercised

The expression" the harbour master," shall mean with reference to any such harbour, the harbour master, and with reference to any such dock, the dockmaster

respectively appointed by virtue of this or the Special Act, and with respect to all acts authorised or required to be done by such harbour master, dockmaster, or pier master, shall include the assistants of every such harbour master, dock master, or pier master.

Sect. 52. The harbour master may give directions for all or any of the following purposes (that is to say), for regulating the time at which and the manner in which any vessel shall enter into, go out of, or lie in or at the harbour, dock, or pier, and within the prescribed limits, if any, and its position, moving or unmoving, placing and removing, whilst therein, &c.

Sect. 53. The master of every vessel within the harbour or dock, or at or near the pier, or within the prescribed limits, if any, shall regulate such vessel according to the directions of the harbour master, made in conformity with this and the Special Act; and any master of a vessel, who, after notice of any such direction by the harbour master served upon him, shall not forthwith regulate such vessel according to such direction shall be liable to a penalty not exceeding 201.

Sect. 58. If the master of any vessel in or at the barbour, dock, or pier, or within the prescribed limits, if any, shall not moor, unmoor, place or remove the same according to the directions of the harbour master, or if there be no person on board of any such vessel to attend to such directions, the harbour master may cause such vessel to be moored, unmoored, placed, or removed, as he shall think fit, within or at the harbour, dock, or pier, or within the prescribed limits, and for that purpose the harbour master may cast off, unloose or cut the rope, or unshackle or break the chain by which any such vessel is moored or fastened: and all expenses attending the mooring, unmooring, placing, or removing of such vessel shall be paid to the undertakers by the masters of such vessel: Provided always, that before the harbour master shall unloose or cut any rope, or unshackle or break any chain, by which any vessel, without any person on board to protect the same, shall be moored or fastened, he shall cause a sufficient number of persons to be put on board such vessel for the protection of the same.

Sect. 63. As soon as the harbour or dock shall be so far completed as to admit vessels to enter therein no vessel,

[CT. OF APP.

except with the permission of the harbour master, shall lie or be moored in the entrance of the harbour or dock, or within the prescribed limits, and if the master of any vessel either place it or suffer it to remain in the entrance of the harbour or dock, or within the prescribed limits without such permission, and do not, on being required so to do by the harbour master, forthwith proceed to remove such vessel, he shall be liable to a penalty not exceeding 51., and a further sum of 20s. for every hour that such vessel shall remain within the limits aforesaid, after a reasonable time for removing the same has expired after such requisition.

The Victoria (London) Docks Act 1853 (16 & 17 Vict. c. cxxxi.).

Sect. 46. That the limits within which the powers of the superintendent and dock master for the regulation of the dock shall be exercised, shall be the dock works and premises of the company, and a distance of 100 yards into the river Thames from the entrance gates of the said docks, such distance to be computed from the centre of the outer lockgates of the said dock: Provided always, that the power of the Lord Mayor, as Conservator of the River Thames, and of the Harbour Masters of the Port of London, within the aforesaid limits, shall not be prejudiced, lessened, or interfered with by this Act.

London and St. Katherine Docks Act 1864 (27 & 28 Vict. c. clxxviii.).

Sect. 3 incorporates the Harbour, Docks, and Pier Clauses Act 1847 (10 Vict. c. 27), with the exception of certain sections other than those set out above.

Sect. 58 vests the Victoria Docks in the London and St. Katherine Docks Company.

Sect. 61 repeals Victoria (London) Docks Act 1853 (16 & 17 Vict. c. exxxi.).

Sect. 62 saves certain sections set out in schedule 4, part 3, from the general repeal of sect. 61, amongst which are, inter alia, Victoria (London) Docks Act 1853 (16 & 17 Vict. c. cxxxi.). Sect. 46 set out above.

Bruce (with him Butt, Q.C.) for appellants.The Belgic was by law bound to carry a pilot; she was navigating the waters of the port of London (The Victoria (London) Docks Act 1853, 16 & 17 Vict. c. cxxxi., s. 49), which was not her own port, for she is registered at Liverpool, and she had a pilot on board, who was therefore in charge: (Lucey v. Ingram 6 M. & W. 302.) She comes within none of the exemptions either of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), s. 379, or of the Pilot Act (6 Geo. 4, c. 125), s. 59. All the orders of the pilot were obeyed. The captain gave no order himself; he only carried out those given by the proper official. Moreover, the order to go astern and to take a tug were given by the dock master at a time when the Belgic was within the space over which his authority extends (the Victoria (London) Docks Act 1853, 16 & 17 Vict. c. cxxxi., s. 46), and therefore we were bound to obey the orders of the dockmaster under a penalty, and we did obey them (the Harbour, Dock, and Pier Clauses Act 1847, 10 Vict. c. 27, ss. 52, 53). The relation of master and servant never existed between the dockmaster and ourselves, and therefore we are not liable for the consequences of his acts: (The Bilboa, Lush. 149). If anyone is liable for the damage it is the dock company, the dockmaster, or the pilot. The Kertch was lying in an improper place in defiance of the Dock Companies Regulations (the Harbour, Dock, and Piers Clauses Act 1847, 16 & 17 Vict. c. cxxxi., s. 63), and consequently was there at her own peril, and is not entitled to recover, as she brought the accident on herself by lying there. It was necessary for the Belgic to go out of dock that tide, as she prevented other vessels from going in and coming out, and she would have gone out in safety had it not been for the unforeseen circumstance of a schooner

anchoring just at the time outside the dock entrance, which rendered it impossible for her to go out in the way proposed. When that incident

took place the course pursued was the best and most prudent one open to the Belgic, and the accident which ensued was under the circumstances inevitable.

Webster and Raikes for the respondents.-The pilotage was not compulsory. It has been held that a vessel coming out of dock is within the exemption of The Pilot Act (6 Geo. 4, ɔ. 125), s. 63 : (Lucey v. Ingram, 6 M. & W. 302) In that case, however, the pilot had been required to take charge under sect. 72 of the same statute, and, therefore, was in charge. The whole of 6 Geo. 4, c. 125, was repealed by 17 & 18 Vict. c. 120. But the exemption of sect. 63 is continued by the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104), s. 353 (General Steam Navigation Company v. British and Colonial Steam Navigation Company, L. Rep. 4 Ex. 238; 20 L. T. Rep. N. S. 581; The Earl of Auckland, Lush 164, and on appeal, ib. 387.) The corresponding enactment to 6 Geo. 4, c. 125, s. 72, is 17 & 18 Vict. c. 104, s. 365(8), but here he had never been required to take charge, and, as he has himself sworn, was on board merely in readiness to take charge when the vessel got into the river. Under the circumstances he was not in charge; the order he gave to go ahead was given by him as the mouthpiece of the owners, to avoid a collision with the vessels outside. That order, however, did not cause the collision with the Kertch, but on the contrary, brought the Belgic again to a position of safety. The immediate cause of the collision was the subsequent employment of a tug of insufficient power. It is not the duty of the dock master to supply a tug. The defendants had a more powerful tug of their own in attendance, and had they used her, in all probability the collision would not have occurred. The dock master did not order the Belgic to use the dock company's tug, but suggested that a tug should be used, and offered the assistance of his. That offer was accepted by the Belgic, and a prudent man should have foreseen the result of employing so weak a tug by itself to perform such a service in such weather. On the Belgic's acceptance of the assistance of the tug, the tug became a portion of her (the Belgic's) appliances for going out of dock, and the Belgic is responsible for the inadequacy of the tug as much as she would be for the inefficiency of her own engines, or for a collision occasioned by the carrying away of a rope of obviously insufficient strength for the purpose for which it was used. The Kertch was lying in a perfectly proper place; she was known to be there by the servants of the dock company, and indeed had been assisted by them to make fast in that place, and therefore, whether within or without the limit of the district over which the dock master's control extends (the Victoria (London) Docks Act 1853, 16 & 17 Vict. c. cxxxi., s. 46), she had a perfect right to be there. The notice to barges not to lie there is habitually disregarded by the dock company themselves, and appears to have been ultra vires, as it seems to apply to a district in the river over which the dockmaster's authority does not extend, as it professes to measure 100 yards from the pier head, which is much further out than the centre of the outer

[CT. OF APP.

dock gates. There was no necessity for the Belgic to move at all out of the dock; she could remain as long as she liked on payment of her dues, and it was negligence on the part of her master to allow her to be sent out of dock at all at such a time. Looking to the state of the weather and the tide, this act of negligence was the original causa causans of the accident.

Bruce in reply.

Sir ROBERT PHILLIMORE.-This is an appeal from the City of London Court in a cause of collision.

The Belgic, a screw steamer 370 feet long, and of between 2000 and 3000 tons, on the 25th of Nov. last, in the daytime, came stern foremost out of the Victoria Dock and ran into a dumb barge or lighter called the Kertch, and sank her, doing also damage to another barge. The Kertch brought her action against the Belgic in the court below, and obtained the judgment of the court in her favour. The learned judge, assisted by nautical assessors, said that he did not decide any point of law, but that he found as a fact that the pilot was not exercising control over the steamer, and that the master did not take proper precautions in coming out into the river, and therefore was to blame for the collision.

The appellant contends that this judgment ought to be reversed upon three grounds, viz.: First, that the Kertch was to blame for lying where she did; secondly, that the Belgic was not responsible because she was under the orders of the dockmaster or the pilot; thirdly, that the collision was inevitable.

This last ground may be at once disposed of. The collision was clearly evitable.

Two

Then as to the first ground, the Kertch was a dumb barge, laden with wood and iron for a ship in the Victoria Docks. The barge arrived at dead low water near the dock entrance, and brought up outside. There were fifty or sixty barges also lying alongside. hours before high water the barge was ordered by the dock company's servants to shift higher up, which order she obeyed, and one of them handed a rope for making her fast after having been on board her, saying, "that will do, Bob; here is something that will hold you." Looking to these and other circumstances, I am of opinion that the barge was not to blame for lying where she did.

The remaining ground of objection is now to be considered. I agree with the opinion of counsel that the learned judge of the court below had not only a question of fact, but also to some extent of law to consider, because, if the master was to blame for this collision, it must be on the ground that neither the authority of the dockmaster nor of the pilot had superseded at the time of the collision the authority of the master. The dockmaster was naturally anxious to get rid of this long steamer in order to admit other vessels waiting to come in. The principal facts appear to be that the gates were opened about an hour and a half before high water. The dockmaster ordered the Belgic to go out astern. About this time a schooner dropped her anchor near the mouth of the entrance. The pilot, who says he was not at this time in charge, seeing that a collision with the schooner on the one side or the barge on the other would be inevitable if the Belgic went out, took upon himself to order the Belgic to go ahead, thereby stopping her