LORD JOHN Saturday, 25th August, 1838. LORD JOHN RUSSELL-YOUNG. 1. In case of collision arising from negligence or unskilfulness in management of ship doing the injury, pilot having the control of the ship is not a competent witness for such ship without a release; although the master is. 2. Ship held liable for collision, notwithstanding there being a pilot on board. 3. Damages awarded in case of collision in the harbour of Quebec. The libel alleged that on or about the 27th of May last, the ship or vessel, the Robert Kerr, James Gourley, master, of the burthen by admeasurement of 360 tons or thereabouts, navigated by a crew consisting of fifteen persons besides the master, arrived at the port of Quebec with a cargo of salt, and came too, with one anchor, off the city of Quebec in the port of Quebec. That at about five o'clock in the afternoon of the same day, she let go the larboard anchor and twenty-five fathoms of chain or thereabouts, and was thus moored by both her anchors. That about nine o'clock in the evening of the same day, -the weather being then bright and clear, and the wind blowing fresh from the east,-the barque the Lord John Russell, of St. John, New Brunswick, John Young, master, was driving towards the said Robert Kerr, when John Acheson, the carpenter of the Robert Kerr, then on watch, called to the persons on board of the Lord John Russell, upon her coming within hail, and received no answer; and just about the same time the anchor of the Robert Kerr was let go right in front, in the hawse of the said Robert Kerr; and immediately the Lord John Russell struck the Robert Kerr, and went right on board of her, the Robert Kerr then being at anchor to the leeward of the Lord John Russell. That, notwithstanding that the crew of the Robert Kerr used their utmost exertions to separate the vessels, and veered out the cables and dropped clear of the Lord John Russell, the Lord John Russell immediately fell on the larboard side of the Robert Kerr, and was held on by the said Robert Kerr until the Lord John Russell hove up her anchor to see if the Lord John Russell could get clear; but that the Lord John Russell, after remaining there for some time, again let go her anchor, which caught one of the anchors or chains of the Robert Kerr, and caused both ships to drive and continue to do so until they got past the barque Baltic Merchant and brig Forrester. The collision, it was alleged in the libel, occurred wholly through the inattention and want of skill of the persons on board the Lord John Russell, and not from any inattention or want of skill of the persons on board of the Robert Kerr. The libellant, in conclusion, specified the injuries done, and stated the damages at 500%. The responsive allegation given in by the owner of the Lord John Russell pleaded that the Lord John Russell being in ballast, bound to this port, rounded Point Levi, on the 27th of May last at about half-past nine at night, under a stiff breeze from the north-eastward; that all sail was then taken in and close hauled with clue line, bunt. lines, and reef tackles, as is usual when ships are coming to anchor; and that in about half an hour the pilot Guillaume Lebel, ordered the anchor to be let go, which was accordingly done, and forty-five fathoms of chain run out. That the port of Quebec was then crowded with vessels, and the weather rather dark; and that none of the vessels there, and more particularly the Robert Kerr, showed lights of any kind, as required by the regulations of the port. That the Lord John Russell dragged her anchor some distance, and was at last brought up in the hawse of the Robert Kerr; that the boat of the Lord John LORD JOHN LORD JOHN Russell, then hanging at her stern, was crushed by the bob stay of the Robert Kerr; and that the pilot of the Lord John Russell, to prevent further mischief, cried out to the people on board of the Robert Kerr, to let out more chain; to which the master of the Robert Kerr gave a rude refusal; that the Robert Kerr did not hail the Lord John Russell first, but that, after abusing the pilot for some time, the Robert Kerr let out about five fathoms of chain, so as to leave the boat of the Lord John Russell clear; that the pilot of the Lord John Russell then called upon the people of the Robert Kerr to let out more chain, as it was then high tide, and as at the ebb the two vessels must otherwise come in collision; that the people on board the Robert Kerr then announced that they would not let out any more chain; and that the Robert Kerr might have let out, with perfect safety, twenty fathoms of chain, and in that case the collision would have been prevented; that upon the refusal of the master of the Robert Kerr to let out more chain some minutes were given him to pull down, as he was very violent and angry; and that after this the master of the Lord John Russell hailed him again, and asked him to concert measures to avoid coming into collision at the turn of the tide; upon which the master of the Robert Kerr suggested that the people of the Lord John Russell should take up their anchor, and that he would give them a warp in the meantime, so that upon the jumping of the two vessels by the turn of the tide they might swing clear; that accordingly when the two ships swung with the tide, the Lord John Russell being in the weather side, rather astern of the Robert Kerr, with the bow just about the fore rigging of the Robert Kerr,-the anchor of the Lord John Russell being up, and the vessel secured to the Robert Kerr by a warp,-efforts were made by the crew of the Lord John Russell to sheer, but to no avail; the wind increasing much, and the vessel being too much abeam, she would not sheer that the ebb tide, by this time, having made out strong, and the Robert Kerr being loaded and heavy, and being in advance of the Lord John Russell, both vessels drove right to windward; and while driving the master of the Robert Kerr became for the first time a little alarmed, and desired the master of the Lord John Russell to let go his anchor again, in order to prevent driving further, which was immediately complied with, and seventy fathoms of chain veered out; that this anchor being insufficient to stop the progress of the two vessels, the master of the Robert Kerr desired the master of the Lord John Russell to let go a second anchor, which was done with sixty fathoms of chain, but to no purpose, -as the ship still drove in an unmanageable position,until they drove upon the brig Forester, by which the jib-boom of the Robert Kerr was carried away; the two vessels then drove onwards until brought up by the barque Baltic Merchant: that being then unmanageable, and the wind being high, they received much damage in their hulls, spars, and rigging, by damage-collision one whole tide that it was fully in the power of the master of the Robert Kerr to have let out more chain when first desired to do so, and that if he had done so, all damage and loss to the said vessel would have been avoided, inasmuch as though at that time the boat hanging at the stern of the Lord John Russell had been injured, no injury whatever had been done to the Robert Kerr; and that at the same tide, and nearly at the same place, the ship Ocean was driven by stress of weather from her moorings and sent ashore in the river St. Charles. From the evidence it appeared that in the afternoon and evening of the 27th of May last, the Robert Kerr was moored with two anchors, opposite the India wharf in the harbour of Quebec, and that the Lord John Russell coming into the harbour from sea, with a flood tide and a fresh wind from the eastward,-the night being sufficiently LORD JOHN RUSSELL. LORD JOHN light and clear to admit of a ship being seen at a considerable distance,-let go her anchor at about half-past nine in the evening or night, in the hawse of the Robert Kerr, and thereby gave her a foul berth. This fact was established by many of the witnesses in the cause, and contradicted by none; and to it was to be attributed the collision, and subsequent damage to the Robert Kerr. The occurrences which afterwards took place were substantially as set forth in the libel. JUDGMENT.-Hon. Henry Black. 1. A preliminary question has been raised as to the competency of the master of the Lord John Russell and of the pilot of that ship, as witnesses for the defence. It appears to me that the master was a competent witness, but that the pilot was not, without a release from the owner (a). The pilot was substituted in the place of the master in the navigation of the ship, and the master ceased therefore to be liable as such; the whole of the liability for default, negligence, or unskilfulness came to rest upon the pilot. Roccus says, "Navis etiam habet pilotum, qui est ille, qui navem regit in navigando, et plenam scientiam, et notitiam artis navigandi habere tenetur. Eligitur vero pilotus a magistro navis, et obligatur ad omne damnum, quod contigerit ex ejus culpa, imperitia aut negligentia in regendo navem, et obligatus est, etiam de levissima culpa non exercendo exactissimam diligentiam" (b). To allow the pilot, having the control of the navigation of the ship, with the consequent obligations, to be examined as a witness for the ship whereof he was pilot, would be to make him a witness in his own cause, and for this reason he has been considered as an incompetent witness (c). Whilst the ix., Num. 20, 21, (a) As to the practice of examining witnesses under a release, see 5 Rob. 343, in note; 2 Hagg. 149, in note. (b) De navibus et Naulo, Not. 22. (c) Martin v. Henrickson, L. Raym. 1007, and Salk. 287; Hawkins v. Finlayson, 3 Car. & Pay. 319. |