MARY BANNATYNE. Friday, 24th August, 1855. MARY BANNATYNE-FERGUSON. 1. Where two ships, close hauled, on opposite tacks meet, and there would be danger of collision if each continued her course, the one on the port tack is to give way, and the other is to hold her course. 2. She is not to do this, if by so doing she would cause unnecessary risk to the other. 3. Neither is the other bound to obey the rule, if by so doing she would run into unavoidable or imminent danger; but if there be no such danger, the one on the starboard tack is entitled to the benefit of the rule. 4. The circumstances of the case examined, and no sufficient excuse being found for not following the rule, the vessel inflicting the injury condemned in damages and costs. This suit was brought by the owners of the barque St. John against the barque Mary Bannatyne, to recover damages occasioned by a collision. The injury occurred on the 17th of June last, in the river St. Lawrence, a few miles below the island of Bic. The facts of the case sufficiently appear in the following opinion of the Court: JUDGMENT.-Hon. Henry Black. On the night of the 16th and morning of the 17th June last, the barque St. John, of the burthen of 573 tons, David Blyth, master, and the barque Mary Bannatyne, of the burthen of 535 tons, James Ferguson, master, were in the river St. Lawrence, a few miles below the island of Bic; both were bound to Quebec, and the wind being adverse, they were both beating up, and close-hauled. They had seen each other on the 16th, and for several days before. It appears, also, that in the day-time of the 16th the two vessels crossed each other, passing within about 100 yards of each other, the St. John being then on the port tack, and the Mary Bannatyne on the starboard tack, the St. John giving way a little to allow the Mary Bannatyne to pass freely and it is in evidence that they had seen many vessels also bound to Quebec, and beating up the river within sight of them. They continued beating up, and on the night of the 16th the St. John was running on the port tack towards the north shore until midnight, when the master came on deck, and had the ship put about, standing towards the south shore, on the starboard tack; on which she continued until the collision. The Mary Bannatyne, which had been on the starboard tack on the night of the 16th, also tacked about midnight, and stood towards the north shore, on the port tack; both vessels continuing close-hauled. The wind at this time was a whole-sail breeze, driving the vessels about six knots an hour, and both were under perfect command. Both vessels appear to have had a sufficient crew, and a sufficient number on watch, and each is alleged by her own people to have had a light at her bowsprit end; but the people of each deny that they saw any light on board the other vessel. The people of the St. John saw the Mary Bannatyne when at a distance of two miles and a half or three miles off, and do not appear to have lost sight of her up to the time of the collision. It is proved on her part, that her master, finding that the Mary Bannatyne was not giving way, and that the vessels were approaching each other, caused a light to be displayed on the port quarter of the St. John; and as the vessels neared each other, hailed the Mary Bannatyne to port her helm, and continued to do so as loud as he could until the vessels touched each other; at the same time he ordered the man at the wheel to keep the ship as close to the wind as possible without getting into the wind, or losing command of her. It is acknowledged on the part of the Mary Bannatyne MARY BANNATYNE. MARY BANNATYNE. that she did not port her helm until she was within so short a distance that although she obeyed her helm, and went off the wind, yet it was too late to avoid the collision, and her stem struck the St. John on her port side, in the middle of the main rigging, her bowsprit running through the main-sail of the St. John, carrying away the main rigging and back stays, and everything belonging to the mizen mast, and doing the other damage complained of. After the collision the vessels separated. The wind was between north and north-west, and it is admitted on both sides that the weather was generally clear, with showers of drizzling rain. The people of the Mary Bannatyne say in their defence that this rain obscured the weather to such an extent that it was not possible for them to see the St. John at a sufficient distance to avoid the collision, although there was a man expressly stationed on the forecastle as a look-out;—and this is, in fact, the whole amount of the defence. But, though the man who was at the wheel of the Mary Bannatyne when the accident occurred (Patrick Crahan) says, "that the most vigilant look-out could not, with the hazy and rainy weather which was experienced during the twenty minutes immediately preceding the collision, have seen a vessel to leeward at a greater distance than twice her length," yet all the other witnesses produced on behalf of the Mary Bannatyne, including the chief mate (James Watson), whose watch it was, state, that had the look-out been attentive he must have seen the St. John at a greater distance than he did; and we have in evidence, on the other side, that the St. John's people saw the Mary Bannatyne at the distance of about two miles and a half; and this evidence is the less liable to suspicion, inasmuch as it makes against the St. John, if there were any fault on her part, as it goes to prove that she had plenty of time to adopt any course which circumstances required. Neither does there seem any reason met. why the Mary Bannatyne should not see the St. John as soon as the St. John saw her; for neither ship was, in point of fact, any considerable distance to leeward or to windward of the other, otherwise they could not have The man who is stated to have had the lookout (Christopher Callaghan) is not produced; neither is another man (George Brew), who is said to have been one of the watch on deck; and although it is alleged that they had deserted, yet it does not appear that any search was made for them, or any attempt to obtain their evidence: and this is the more to be regretted, inasmuch as the mate, and all the other witnesses of the Mary Bannatyne, except one, throw the blame upon the look-out man. On the other hand, the master and every one of the watch of the St. John were examined, and agree in their statements, which appear to have been fairly made. Besides admitting that he saw the Mary Bannatyne two miles and a half off, the master of the St. John admits that he could have avoided the collision by altering his ship's course, if he had foreseen that the Mary Bannatyne would not alter hers. The undoubted rule of navigation is, that where two ships, close-hauled, on opposite tacks meet, and there would be danger of collision if each continued her course, the one on the port tack shall give way, and the other shall hold her course. She is not to do this if by so doing she would cause unnecessary risk to the other. Neither is the other bound to obey the rule, if by so doing she would run into unavoidable or imminent danger; but if there be no such risk, the one on the starboard tack is entitled to the benefit of the rule. In the present instance there was certainly no such risk, and if the Mary Bannatyne had kept a good look-out she must have seen the St. John in time to port her helm and avoid her, which she could very easily have done. There is no allegation on the part of the Mary Bannatyne A A MARY BANNATYNE. MARY BANNATYNE. of any want of skill or infringement of nautical rule on the part of the St. John, and the master of the St. John had a right to suppose that the Mary Bannatyne saw him, and would obey the rule, and port her helm in sufficient time to avoid the accident, which it would have been time enough to do when he first hailed the Mary Bannatyne. If the St. John had put her helm a-starboard she might perhaps have avoided the accident, provided the Mary Bannatyne had kept her course; but if the Mary Bannatyne had put her helm a-port, as she was bound to do, the starboarding of the helm of the St. John would only have rendered the collision more certain. If the St. John had put her helm further a-port, she would have got into the wind, and the command over her would have been lost; nor is it alleged that her so doing would have avoided the collision: nor indeed was it likely that in the middle of the night, and in a sudden emergency, any very delicate manœuvre could be attempted, or its advantages or disadvantages calculated. With respect to the alleged admissions of the master of the St. John to Mr. Rowbottom and Captain Vaughan, after the arrival of the vessel at Quebec, although as no such admissions were pleaded and it was therefore irregular to receive evidence of them, yet it may be observed that the admissions, if made, were made in a desultory conversation; and the principal one, that the accident was as much the fault of one vessel as the other, is directly contradicted by the evidence on oath of the person who is said to have made it. With respect to the admission that he saw the Mary Bannatyne half an hour before, and could have avoided the accident if he had altered his course, that is in no respect at variance with the master's evidence, and its effect has been already commented upon. Even admitting, which seems probable, that the lookout man of the Mary Bannatyne was the only person to |