and fishing, and they are contained in art. 9 (g). Special provisions for fishing vessels were in existence in 1863, and appear in the collision regulations of 1880 and 1884. The Dunelm (51 L. T. Rep. 214; 5 Asp. Mar. Law Cas. 304) clearly shows that former and similar articles have been applied to every kind of vessel attached to its net, and that they have been applied to steam trawlers. If the argument for the plaintiffs is right, steam trawlers, although they are fishing vessels, have no special provisions applicable to them. It is admitted that the master of the trawler never sounded a bell or a foghorn as required by art. 9 (g); he thought he was acting in accordance with art. 15 (a), but the evidence is conclusive that he was not doing even that; the whistle was only being sounded every two and a half minutes at the best. It ought, if art. 15 (a) had been complied with, to have been sounded at intervals of not more than two minutes. It is suggested that the limitation off the coast places the Anson outside the scope of the rule, but The Orion (65 L. T. Rep. 500; 7 Asp. Mar. Law. Cas. 88) shows that a similar rule has been applied to a vessel eighty miles E. by N. of the Spurn; this collision occurred about the same distance away from and about east of the Spurn.

The PRESIDENT.-This case turns upon a question of whistling, and as regards the trawler it is unfortunately complicated by some doubt as to what the real obligations in that respect are. For the purposes of this case I am obliged to say what the meaning of the rules is, although it is a matter upon which an opinion can be expressed only with hesitation, because it may well be that the practice of vessels does not altogether correspond to what, in my view, are the obligations imposed by the rule. One can only decide as to the meaning of the rule on the language used as it now stands. I regret very much that the rules both as to signals and lights which have been made for the purposes of these fishing vessels are not expressed in quite clear and simple language. In a matter of this kind, and especially in the case of rules which are to affect a class of vessels which are obviously not manned by the same class of men as man vessels of greater size and value, it is of importance that such rules should be as clear as possible; and they should be international rules, so as to bind the vessels of other nations as well as our own; and it is desirable they should extend not only to vessels lying off the coast of Europe, but also to vessels navigating the coast of America, nor should they be limited to fishing vessels and boats when off the coast of Europe lying to the north of Cape Finisterre. I say this in the hope that those in authority will see their way before long to make clear and efficient international rules on this important subject.

As the matter stands, I must take the rules as they are, and I entertain no doubt that the obligations of art. 9 (g) apply to a steam vessel engaged in trawling. The words appear to me to be plain. [The learned judge then read the article set out above, and continued:] It is said that the rule does not in terms apply to a steam vessel, but only to a sailing vessel engaged in trawling. I do not think such a construction is possible, for there is nothing in the language of the rule which limits it to sailing vessels. It is suggested that the use of the word "foghorn" shows that sailing

66

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vessels only are meant, but by art. 15 of the collision regulations of 1897 a steam vessel is directed to carry, not only an efficient whistle, but an efficient foghorn and an efficient bell. Again, it is suggested that art. 15 (a) overrules art. 9 (g). The words are a steam vessel having way upon her shall sound, at intervals of not more than two minutes, a prolonged blast." It does not appear to me that that overrides the special provisions contained in art. 9 (g) as regards steam vessels engaged in trawling, because the general words of the later article are not, I think, intended to overrule the special words of art. 9 (g). It is a case to which the maxim Generalia specialibus non derogant appears to me to be applicable. Therefore I am compelled to say that a steam trawler under way, engaged in trawling in a fog, must sound her foghorn and ring her bell alternately at intervals of not more than two minutes. What exactly the word alternately with reference to the interval between the sounding of the foghorn and bell means I am not sure, and in this case I do not think it is necessary to determine. It is clear there was no ringing of the bell at all on board the Anson, and even supposing I held, which I do not, that the bell need not be used at all under the circumstances, it is difficult to say, on the evidence, that the Anson was complying with the rule. She was employing a whistle which had, I dare say, something in the way of a trumpet mouth, but she was not employing a foghorn. It is quite clear that she was not acting in accordance with the rule. She was not ringing a bell and, according to her own story, she was not whistling every two minutes, because, although her witnesses managed to get pretty near to it by talking of two and a half minutes, and so on, it is clear to me that there was no whistling every two minutes. I think, therefore, that the Anson must be held to have violated the rule from whatever aspect you look at it, It may be said in this case that it is immaterial because the London did not hear any whistle from the Anson until a late period, and then only one, but I am not strongly impressed by that, because if a vessel is not whistling according to the rule it is very difficult for her to argue that it did not matter, because even if it had been sounded properly it would not have been heard. No one can say that. When a whistle was heard in fact-when other whistles were heard in fact-I am not prepared to say that if the Anson had been whistling regularly every two minutes, and, still more, if she had been ringing her bell, the London would not have had, at any rate, oppor tunity of hearing more than she did, with the

result that her action would have been different. I do not mean to say that I think the rule which requires a whistle to be sounded and a bell rung alternately is a good rule, because I think that the mixing of two different signals -one being the signal for a vessel under way and the other for a vessel at anchoris unwise; but that is not material in this case, for all I have to consider is whether, if a vessel does not perform her obligations under that rule, she can say it is immaterial whether she did or not, because nothing could have happened if she had which would have tended to prevent this collision. If the Anson had obeyed this rule I think it might have been the case that the London would have had earlier information of the Anson,

and would have been able to act accordingly. Therefore the Anson must be held to blame for not obeying the rule and for sounding improper fog signals.

Then comes the further question as to the London. I have had to consider her case very carefully, to see whether any charge is made out against her. The first charge made against her is that she did not stop at the whistle on hearing which she ought to have stopped. I think from this point of view it is immaterial whether the whistle at which she did not stop was the whistle of the Anson or whether it was not, because it is the clear duty of a vessel which hears a whistle forward of her beam, in a position which is not ascertained, to stop her engines and then proceed with caution. The question is whether she did that or not. According to the account of her master there were three whistles. The first whistle was a little forward of the starboard beam, and he says he stopped the engines at once for that, and did not put them on ahead again until that vessel had passed, and they saw that vessel. Then, after that, the vessel's engines were rung to half speed, then the second whistle was heard it may or may not have been the whistle of the Anson-but the captain says he heard the whistle abaft the beam. He admits that he did not stop the engines for that whistle, and, if his story is true, there was no obligation on him to do so, because he heard it abaft the beam. There was then an interval of some six minutes, and then a whistle was heard on the port bow, which was undoubtedly the whistle of the Anson, and for that he says he stopped at once, and after a short time reversed. The only whistle with regard to which fault can be found is the second, which he says was abaft the beam. I have very great difficulty in saying that the rule was violated in that respect, because although I agree it is immaterial whether it was the whistle of the Anson or not, still, if it was the Anson's whistle it was abaft the beam, and there would be no obligation on him to stop. Therefore I cannot think that the London ought to be held to blame for any failure to stop her engines. Then comes the question of the speed of the London. [The learned judge then dealt with the evidence on the question of speed, and proceeded :] Therefore I cannot hold that the London had an excessive rate of speed. That I think exhausts the case. I do not think anything turns upon the helm action of the vessel. I agree that in regard to large vessels like the London it is not desirable to have a look-out only on the bridge, not so much because the bridge may not be a good place from which both to see and hear, but because it seems to me extremely important that the man on the look-out should be doing that and nothing else, but I cannot think that there was any real effect produced in this case by that inefficient look-out, if it was inefficient. The Anson was certainly seen as soon as she could be seen having regard to the fog, and as regards hearing, it is impossible to say that bad look-out produced any inappreciation of what the Anson was doing, because as the Anson was not giving proper signals it is impossible to say whether, if given, they would have been heard. Therefore I think bad look-out is not a matter upon which the case should be allowed to turn. The result is that the Anson must be held alone to blame.

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A barge in tow of a tug came into collision with a barge at anchor. The collision was caused by the negligence of those on the tug. The cargo on the barge which was being towed was damaged. The cargo owners brought an action for tort against both the barge and tug owners for the damage, and also brought their action against the barge owners alternatively for breach of contract to carry safely and deliver the cargo. In that action the claim of the cargo owners against the owners of the barge was dismissed with costs, but the owners of the cargo recovered against the owners of the tug in tort, with costs, and the tug owners were also ordered to pay to the cargo owners the costs of the cargo owners' unsuccessful action against the barge owners. The tug owners had contracted to tow the barge on the following terms: "They will not be answerable for any loss or damage which may happen to any barge or its cargo while in tow, however such loss or damage may arise, and from whosesoever fault or default such loss or damage may arise, and the services of their tugs must be understood and agreed to be engaged upon the terms that they are to be held harmless, and indemnified from any such loss or damage, and against the faults or defaults of their servants or any claim therefor, by whomsoever made. And the customers of the said Gaselee and Sons undertake and agree to bear, satisfy, and indemnify them accordingly." The tug owners claimed to be indemnified by the barge owners for the damages and costs which they had paid to the cargo.

Held, that the barge owners were liable under the contract to indemnify the tug owners even against the results of the tug owners' negligence and that the barge owners should pay to the tug owners the amount of the damages and costs recovered by the cargo owners from the tug owners, including the costs paid to the barge owners by the cargo owners, and which the cargo owners had in the first instance recovered from the tug owners.

CHARLES PAGE AND CO. having to send some sulphate of ammonia to the steamship Iago, instructed Darling Brothers on the 18th Jan. 1904 to send a barge to Becton Gas Works on the river Thames to carry the sulphate of ammonia to the Iago which was in the Thames loading for Venice.

As the Iago was expected to sail shortly Charles Page and Co. Sold Darling Brothers to employ a tug to tow the barge to the Iago.

Darling Brothers sent the barge Millwall to (a) Reported by LIONEL F. C. DARBY, Esq., Barrister-at-Law

Becton Gas Works and loaded her with 572 bags of sulphate of ammonia.

Darling Brothers ordered Gaselee and Son to send a tug to tow the barge to the Iago, and on the 21st Jan. Gaselee and Son sent the tug Bee to Becton for that purpose.

The barge Millwall, manned by one of Darling Brothers' men, after being taken in tow by the tug Bee, manned by Gaselee and Son's men, was, through the negligence of the latter firm's men, brought into collision with the sailing barge Hughes Hallet which was at anchor. The Mill. wall began to make water, and as her pump was unable to keep it under she was beached at Trinity Wharf, and the cargo sustained damage.

The sound value of the cargo was 6431. 158.; in its damaged condition it was worth 877. 18s. and the owners, Charles Page and Co., sought to recover the difference, 555l. 17s. from the barge owners and tug owners.

The cargo owners framed their action against both the barge owners and tug owners jointly and severally in tort and alternatively against the barge owners in contract.

The contract alleged was a verbal one made by telephone by the agent of the cargo owners giving instructions to Darling Brothers to send a barge for the ammonia and sending a delivery order for the goods to the office of Darling Brothers upon which they collected the cargo.

Darling Brothers by their defence denied that they had been guilty of negligence and denied the contract alleged. In the alternative they alleged that if the goods were received by them for carriage they were received on terms established by the course of business and dealing between the parties-viz., that Darling Brothers should not be liable for any loss of or damage to the goods, which could be or in fact was covered by insurance, whether such loss or damage did or did not arise from the negligence of them or their servants or agents and on the terms that Charles Page and Co. should insure against loss of or damage to the goods, and that the under writers should in no case have recourse against Darling Brothers. That in pursuance of that arrangement Charles Page and Co. did insure the goods and had been paid by their underwriters in respect of their loss, and that therefore Darling Brothers were not liable. The tug owners, Gaselee and Sons, put in a defence by which they denied that they had been guilty of the negligence alleged, and did not admit that the collision had taken place or that the goods had been injured, and alternatively alleged that the damage was not caused by their negligence.

Before the trial of the action the tug owners served a third party notice on the barge owners claiming to be indemnified by them against any sum which Charles Page and Co., the plaintiffs, might recover in the action against the tug owners for damages and costs, and against the costs the tug owners might incur in defending the action, and against the costs of and incidental to the third party notice, and the necessary proceedings consequent thereon upon the ground that the towage in respect of which Charles Page and Co. alleged negligence was being performed by the tug owners on their usual terms, which were as follows:

Gaselee and Sons hereby give notice that they will not be answerable for any loss or damage which may

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happen to any barge or its cargo while in tow, however such loss or damage may arise, and from whosesoever fault or default such loss or damage may arise, and the services of their tugs must be understood and agreed to be engaged upon the terms that they are to be held harmless and indemnified from any such loss or damage, and against the faults and defaults of their servants, or any claim therefor by whomsoever made. And the customers of the said Gaselee and Son undertake and agree to bear, satisfy, and indemnify them accordingly.

The barge owners put in a defence to the claim of indemnity by the tug owners, denying that they employed the tug on those terms, or that the alleged terms entitled the tug owners to the relief claimed, and alternatively alleged that if the tug was employed on the terms alleged she was employed at the verbal request of Charles Page and Co., who were at all times material well aware of the tug owners' terms of towage.

On the hearing of the case between the cargo owners and the barge and tug owners, which was before the court on the 27th, 28th, and 29th July, the learned judge held that the damage to the cargo was occasioned by the negligence of the crew of the tug, and judgment was given for the amount claimed, with costs against the tug

owners.

The claim of the cargo owners against the barge owners was dismissed with costs, but the learned judge, following the cases of The River Lagan (58 L. T. Rep. 773; 6 Asp. Mar. Law Cas. 281), The Mystery (86 L. T. Rep. 359; 9 Asp. Mar Law Cas. 281), and Sanderson v. Blyth Theatre Company (89 L. T. Rep. 159), directed that the taxed costs recovered by the barge owners against the cargo owners were to be added to the costs recoverable by the cargo owners against the tug

owners.

During the trial of the action evidence was given showing that the barge owners frequently employed the tug owners to tow their barges, and received a discount from the tug owners on the amount paid for the hire of the tugs, but that they did not allow this discount to the cargo owners when debiting them with the hire of the tug.

Upon the evidence the learned judge held that the barge owners had entered into the contract of towage with the tug owners as principals and not as agents for the cargo owners.

The question of the indemnity of the tug owners by the barge owners then came before the

court.

Bailhache (with him J. A. Hamilton, K.C.) for the tug owners.-The indemnity clause forms part of the contract between the tug owners and the barge owners, and under that clause the tug owners are entitled to be indemnified by the barge owners, both in respect of damages and costs. The only point open to argument on the clause is whether the words cover a case of negli gence on the part of the tug owners' servants; if they do, there can be no answer to a claim made under it. In the case of Corporation of York v. Rowbotham (Shipping Gazette, 14th March, 1901) a tug towed a vessel into collision with another at anchor, and the tug owners then attempted to recover from the tow owners the damages and costs which they had had to pay to the owners of the vessel at anchor, and it was held in that case that the tug owners were entitled to

recover them. In that case the words of the contract were that the tug owners were not to be answerable or accountable for any loss or damage whatever which might be occasioned by the tow while she was in tow of the tug, arising from, or occasioned by, any supposed negligence or default of the tug owners or their servants, and the owners of the tow undertake to bear, satisfy, and indemnify the tug owners against all such loss or damage." Such contracts may appear onerous, but they are usual, and the towage rates are of course less where such claims are inserted.

Laing, K.C. and Balloch for the barge owners. -The wording of the clause is involved, and must be considered word by word; it does not cover the loss sought to be recovered, and has been held not to do so. The words "give notice" at the beginning of the clause can only refer to notice given to the customers of the tug owners, as it is impossible for the tug owners to give a notice such as this to the world at large: "Any loss or damage which may happen to any barge or its cargo" must also refer to damage done to their customers barge, or cargo, and so the contract made between the tug owners and the barge owners denies the customer the right to recover against the tug owners any damage which the customer may sustain. When the contract proceeds to say that the tug owners are to be held harmless and indemnified from any "such " loss or damage it refers to claims which might have been made by the customers. This claim does not come within the loss or damage mentioned in the clause. In the case of The Louise (18 Times L. Rep. 19) the contract between the barge owners and tug owners provided that the tug owners would "not be answerable or accountable for any loss or damage by collision or otherwise which may happen to or be occasioned by any vessel or craft or any of the cargoes on board of the same while such vessel is being towed and (or) transported, whether arising from or occasioned by any accident, or by any omission, breach of duty, mismanagement, negligence or default of the joint committee or their servants, or any transporting men supplied: . . . and the owners or persons interested in the vessel or craft towed and (or) transported, or of the cargo on board the same, shall and do undertake to bear, satisfy, and indemnify the joint committee against all liability for the above-mentioned matters;

and the master and crew of the tug or tugs so towing and any transporting men supplied shall be deemed to be the servants of the owners, master, and crew of the vessel or craft towed or transported, the joint committee being in no way liable for any of the acts or for any of the consequences of the causes above excepted." Under that contract the court held that the indemnity given by the customer only covered cases of damage done to or by the vessel being towed and her cargo, and in no way provided that the tug owners should be indemnified by the barge owners for damage done by the negligence of the tug. In the present case, too, it is submitted that the barge owners have not given an indemnity to the tug owners in respect of the negligence of the tug owners' servants. This case differs from that of Corporation of York v. Rowbotham (ubi sup.), because there the servants of the barge owners were to blame as well as the servants of the tug VOL. X., N. S.

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owners. The barge owners being bailees may sue for damage done to the cargo:

The Winkfield, 9 Asp. Mar. Law Cas. 259; 85 L. T.
Rep. 668.

It is against such an action that the clause applies so far as it deals with cargo. If the clause is as wide as is contended for, it is not clearly worded, and in cases of careless and ambiguous phraseology the court should not assume the construction most advantageous to the person putting forward the clause:

The Waikato, 8 Asp. Mar. Law Cas. 442; 79 L. T.
Rep. 326; (1899) 1 K. B. 56.

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Apart from the construction of the clause the words 'fault or default" are not sufficient to cover the negligence of the tug owners' servants. As to the claim of the tug owners for costs, they claim that the barge owners are to pay them the costs recovered by the barge owners from the cargo owners. It cannot be right that the barge owners should pay those, for they were paid by the tug owners to the barge owners in consequence of the tug owners raising issues in the action which they ought not to have raised.

J. A. Hamilton, K.C. in reply-The words of the clause are plain; they are words of bargain and contemplate that every risk that can be insured against shall be. It is suggested that the wording of the clause is ambiguous, but the in the clause which are not there, it is suggested ambiguity arises from an attempt to insert words that as far as the cargo is concerned, the words, "loss or damage which may happen," refer only to the barge owners' liability for the cargo as bailees, but it is well-known that the barge owners are practically never liable for damage to cargo owing to the contract between them and the recovered from the tug owners is precisely that cargo owners. The damage which has been which the indemnity covers, and the difficulty is where the words are so clear, to put in others in argument to make them clearer. The only difference between this case and that of the Corporation of York v. Rowbotham (ubi sup.) is that in the latter the damage was done to something outside the tow, here it is done to cargo in the tow. In the case of The Louise (ubi sup.) the tug owners were asked why they did not, in plain language, say that the tow owners were to be liable for the faults of the servants of the tug; here they have done so, for they are to be indemnified against the faults of their servants. The clause is absolutely devoid of ambiguity. It is true that costs are not mentioned in the clause, but the word damage includes them, for the damage consists of the taxed costs which have to be paid as well as the actual deterioration of the cargo, and there is no limitation as to the kind of costs which may be recovered under the indemnity. If the conditions of the contract are onerous the barge owners remedy is to refuse to enter into the contract.

The PRESIDENT.-This is a difficult case, but having had an opportunity of considering this clause, I cannot, without putting an interpretation upon it which I do not think it is meant to bear, give it other than its literal meaning. first part of the clause applies to an action which is brought or might be brought against the tug owners by a customer of theirs. The word

Ꭰ

The

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That

"answerable means, I think, answerable to the customer, and the first part of the clause means that the customer-that is, the barge ownercannot bring an action against the tug owners for any loss or damage which may happen to any barge or its cargo while in tow." means, of course, any barge belonging to the customer, while in tow, and the cargo carried on such barge, "however such loss or damage may arise, and from whosesoever fault or default such loss or damage may arise." That is limited to the case of an action which the customer himself might bring against the tug owners, and the tug owners would not be liable. That does not, however, deal with any action which might be brought against the tug owners by a third person. Then comes the second part of the clause, and the difference between the two parts of the clause is this: that the first relates to actions which might be brought by the customers against the tug owners and the second to actions which might be brought by a third person. The customer, of course, is bound by the first part, because he cannot bring an action, and is bound by the second part by the express undertaking that the tug owners are to be indemnified, as the customer agrees "to bear, satisfy, and indemnify them accordingly." I think it is clear that the second part of the clause relates and was intended to relate to actions brought against the tug owners by third persons. Who are the third persons, and what is the loss or damage? The loss or damage is the same loss or damage as is referred to in the first part of the clause-that is to say, loss or damage which may happen to any barge or its cargo while in tow. There is no other limitation than that in this particular case the damage is damage done to cargo whilst in tow. For that damage the owners of the cargo could, of course, bring an action if there was nothing to restrain them. There is in this case nothing to restrain them from bringing an action against the tug owners, and it appears to me quite clear that the customer is to indemnify the tug's owners against an action for such loss or damage, including damage which is done to the cargo whilst in the barge and whilst that barge is in tow, and it is not limited in any way to exclude negligence on the part of the tug owners, because the words fault or default" appear to me necessarily to cover it. Default must, I think, be equivalent to negligence; and, although the word negligence is not used, I think the meaning of the clause is the same as though the indemity was expressly given against the negligence of the tug owner's servants.

The second part of the clause has the result that the negligent tug owners are to be indemnified in respect of their negligence by the innocent barge owners, and I tried to see if the words harmless and indemnified could not be read in a sort of distributory way, so that it might be said that harmless only applied to damage done to a barge and indemnified to damage done by a barge. The answer to any such attempt appears to me to be that those are not the words of the clause, and to express that you would require much more elaborate language and quite different language than that which has been used. I wish I could have given this clause some fair meaning without arriving at the

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on

conclusion which I have come to. I can see none, and, although the case of Corporation of York v. Rowbotham (ubi sup.) is not precisely similar to this, still it shows thas this clause has a broader meaning than that suggested by the barge owners, and that the indemnity covers the case of an action brought by somebody else than the customers against the tug owners by reason of the negligence of those the tug. I think this clause applies, and that the tug owners are entitled to be indemnified against the loss or damage which has arisen. Then as to the costs, I should have been glad to have separated the costs from the other damage caused by this acci dent, and to have given them a different destination, but I do not see my way to do so. I thought it might be possible to say that the costs which have arisen in this case are not costs arising from damage done to the cargo, because another circumstance comes in-namely, the conduct of the action-and the real cause of the costs falling in the way they did was not the direct result of the collision, but was the result of circumstances which supervened namely the conduct of the tug owners in regard to the conduct of the litigation. No doubt what influenced my mind in deciding the matter of costs was that I thought that the tug owners wrongly defended the action, and contended they were not in fault. That was sufficient to render them liable for costs. No doubt that was the direct cause of their being held liable for costs, but I cannot put the matter upon that narrow ground. I must look at the matter a little more broadly, and say that the costs which have fallen upon the owners of the tug in this action are part of the loss or damage which has arisen by reason of the injury done to this cargo, and I am therefore compelled to say that this clause gives an indemnity to the tug owners both in respect of the damages and of the costs of this action.

Solicitors for Gaselee and Sons, J. A. and H. E. Farnfield.

Solicitors for Darling Brothers, Keene, Marsland, and Co.

July 20 and 21, 1904.

(Before Sir F. H. JEUNE, President.)

THE HARVEST HOME. (a) Collision-Tug and tow-Damage to pilot boat lashed to tow-Independent duty of tug to avoid collision-Right of owners of pilot boat to recover against negligent tug when tow in fault-Costs

Co-defendants-Plaintiffs' right to recover from unsuccessful defendant costs paid to suc cessful defendant-Right of negligent tug to towage remuneration though debarred from salvage-Merchant Shipping Act 1894 (57 & 58 Vict. c. 60), s. 422.

A pilot cutter, made fast alongside a sailing vessel which was being towed by two tugs, was run into and sunk by a schooner. The collision was due to the negligence of the tow and tugs. The also damaged by it. owners of the pilot cutter brought an action against the owners of the schooner and the (a) Reported by LIONEL F. C. DARBY, Esq., Barrister-at-Law.

schooner was

The