lished rules of its own, which are different from those recognized at common law. My learned predecessor, Dr. Lushington, who had very extensive experience, reaching a long way back, and who was peculiarly cognizant of all the authorities, expressed an opinion that a defendant in a damage suit, who succeeded in establishing the defence of compulsory pilotage, never was condemned in costs. It would require very clear and decisive proof that this practice is productive of evil before it should be altered by the court. But I cannot see that any such evil exists; on the contrary, I think that to alter the practice in the way suggested might be to cast upon the officer whose duty it is to tax the costs a burden of extreme difficulty. In many cases, in order to determine the question raised by the defence of compulsory pilotage, the general circumstances attending the collision must be inquired into, and the evidence necessary to support such a defence would be nearly the same as that which would be required in order to determine which vessel was to blame.

After fully considering the matter, I can see no reason to induce the court to exert so strong an authority as to alter a rule which is undoubtedly of ancient standing. I must refuse to condemn the defendants in any portion of the costs, but, as this is the first time the question has been solemnly argued, I shall make no order as to the costs of this application.

Solicitor for plaintiffs: Cooper.

Solicitors for defendants: Clarkson, Son & Greenwell.

191]

[Law Reports, 4 Admiralty and Ecclesiastical, 191.]

Nov. 11, 1873.

*THE CITY OF MOBILE. (L. 108).

Wages and Disbursements-Counter Claim-The Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 191.

In a cause of wages and disbursements instituted on behalf of a master, himself a co-owner, against other part owners, the defendants may plead in answer that on a balance of account between the plaintiff as master and co-owner and the defendants nothing is due to the plaintiff.

THIS was a cause of wages and disbursements instituted on behalf of the master of the City of Mobile against certain persons owners of shares in the said vessel.

The plaintiff alleged in his petition that he had been appointed master of the City of Mobile in January, 1870, at

the wages of £300 a year, with 20s. a week board wages when living on shore, and had made two voyages in her; that in respect of the former of the two voyages his account for wages and disbursements had been settled, but that though he had duly delivered in to the defendants his account for wages and disbursements during the latter voyage, such account, which amounted to the sum of £556 11s. 3d., was due and unpaid, and was then claimed by him in the suit.

The defendants, in the first paragraph of their answer, pleaded as follows:

The defendants admit that the plaintiff earned wages and made certain disbursements as master of the City of Mobile, but they say that his accounts in respect thereof are not accurate, [and that the plaintiff was, during the voyage in respect of which he is claiming, and that he still is, owner of sixteen sixtyfourth parts or shares in the said ship, and that accounts are outstanding and unsettled between the plaintiff and the defendants as co-owners of the said vessel, and that upon the balance of all the accounts between the plaintiff as master and co-owner and the defendants nothing is due to the plaintiff, but on the contrary that a sum of money is due from the plaintiff to the defendants.]

The answer concluded with the following prayer:

And the solicitors for the defendants pray the right honorable the judge to refer all the accounts outstanding and unsettled between the plaintiff and the defendants, both as to the wages and disbursements of the plaintiff as master of the said ship, and as to the earnings and disbursements of the said ship, to the registrar assisted by merchants, to report thereon and to condemn the plaintiff to *pay the defendants the balance which shall appear due from him to them, [192 with costs; and that further and otherwise right and justice may be administered in the premises.

R. G. Williams and J. H. James, on behalf of the plaintiff, moved the court to strike out so much of the first article of the answer as is printed above within brackets, and that part of the prayer which prayed that the accounts between the plaintiff and defendants as to the earnings and disbursements of the said ship should be referred to the registrar and merchants: In The D. Jex (') Dr. Lushington held that the master's claim for wages must be confined to the transactions between himself and the owner in their capacities of master and owner. It is not competent for the court to enter in a wages suit into the investigation of accounts between the parties as co-owners. It has always been the practice of this court to afford a ready remedy to masters and seamen for their wages; and it would lead to great inconvenience if a master who was also part owner could not obtain his wages until complicated co-ownership accounts had been gone into and settled: Parsons on Shipping, vol. ii., p. 433. The defendants are not without their remedy, because they may institute a cause of co-ownership, in which the court will have full jurisdiction to settle the co-ownership accounts. (') 13 L. T. (N.S.), 22; 2 Mar. Law Cases, 263.

The Admiralty Advocate (Dr. Deane, Q.C.), and E. C. Clarkson, for the defendants: The terms of the 191st section of the Merchant Shipping Act are comprehensive enough to include a counter claim arising out of co-ownership accounts. The very object of that section was to prevent a multiplicity of suits. Why should it be necessary to institute a cross suit? The Glentanner (').

Williams, in reply.

SIR ROBERT PHILLIMORE: This is an application to the court to strike out certain portions of the answer in a suit of wages and disbursements instituted on behalf of the master of the vessel City of Mobile against certain owners of the res. The master of the vessel is himself a co-owner, and his co-owners set up a defence that accounts are outstanding and unsettled between the plaintiff and the defendants as co193] owners of the ship, and that upon a *balance of all the accounts between the plaintiff as master and co-owner and the defendants, nothing is due to the plaintiff. Now, I think it would be impossible to deny that the language of the 191st section of the Merchant Shipping Act is amply wide enough to cover the set-off pleaded in the article objected to, and the only question which has perplexed the mind of the court is whether the decision in the case of The D. Jex (2) affords a precedent which limits the construction to be put upon the words of the clause in the manner contended for; that is, whether the provisions of the section are solely confined to a set-off of claims in the capacity of master and owner, or include a set-off of claims arising out of the relation which exists between the plaintiff and defendants as co-owners. In the case of The D. Jex Dr. Lushington said: "Now, what is the meaning of the words 'to settle all accounts then arising or outstanding and unsettled between the parties to the proceedings? It will be observed, that it was only in a case of a set-off or counter claim that this power was conferred upon the court. the court. It is true that in this case there has been a counter claim; but it appears to me that the intention of the legislature was not to refer to this court the decision of all questions which might exist between the parties on matters entirely foreign either to wages or disbursements. The object of this section was to enable the court to do justice where the owners set up a counter claim with reference to the ship or her disbursements. All these are matters properly cognizable by the Court of Admiralty, but the wide exposition set up by the plaintiff might () Swa. Adm., 415. (2) 13 L. T. (N.S.), 22; 2 Mar. Law Cases, 263.

include matters wholly foreign to its jurisdiction, and to the decision of which it is unaccustomed."

Now it has been truly said, that it would be competent to the court to entertain the counter claims now set up by the defendants in another suit, and that in all probability the court would hold its hand and not pay out the sum found due to the master for wages till after the decision in the cross suit. It is clear that these counter claims relate to the ship and her disbursements. Then the court has a strong inclination, in the interests of justice as well as of the parties, not to lean towards that construction of *the section which would [194 lead to a multiplicity of suits. I am of opinion that the portions of the answer objected to should stand; and I must therefore reject the prayer of the motion. The costs to be costs in the cause.

Solicitors for plaintiff: Whitely & Maddock.
Solicitors for defendant: Martin & Martin.

[Law Reports, 4 Admiralty and Ecclesiastical, 198.]
Jan. 22, 1874.

*THE LANCASHIRE. (L. 126).

Collision-Duty of Steam-vessel in dense Fog.

[198

A steam ferry-boat started in a dense fog to cross a navigable river, those in charge of her having been informed that vessels were anchored in or near her track. The ferry-boat, although navigated with all ordinary care, ran into and damaged a ship at anchor:

Held, that the ferry-boat was to blame.

THIS was a cause of damage instituted on behalf of the owners of the screw steamship Levant against the steam ferryboat Lancashire.

The circumstances of the collision, as stated in the petition, were as follows: The Levant, about 1 a. m., on the 26th of October, 1873, came to an anchor in the river Mersey in a clear berth and in a safe and proper anchorage. When she came to an anchor it was a fine and pretty clear night; two bright lights were exhibited in the rigging of the Levant in compliance with the regulations in force in the Mersey, and the lights continued to burn brightly until the collision. Later in the morning a dense fog set in, and the fog bell on board the Levant was duly sounded. Between 7.15 and 7.25 a.m. the Lancashire, which was a steam ferry-boat plying between Birkenhead and Liverpool, was seen by those on board the Levant approaching at a rapid rate of speed. The Lanca

shire was hailed by those on board the Levant, but she continued to approach at great speed and with her port sponson struck the starboard side of the stem of the Levant. Those on board the Levant heard the whistle of the Lancashire as the latter came in sight, and at this time the fog was so dense that a vessel could not be seen a ship's length off.

The 10th article of the petition was as follows: "Having regard to the state of the weather, it was an improper proceeding on the part of those on board the Lancashire to cross the river Mersey.

The answer filed on behalf of the owners of the Lancashire stated, inter alia, that the Lancashire left the Woodside landing-stage for the St. George's landing-stage at a quarter past seven. A good look-out was kept. The master was at the engine telegraph, one man was forward on the saloon 199] deck on the look-out, two men *were at the wheel, and one man was at the steam whistle. The Lancashire proceeded at a slow speed, about three knots an hour. At the time the Lancashire left the Woodside landing-stage there was a dense fog, the wind calm. From the time of leaving the stage the whistle was continuously sounded. A few minutes after leaving the Woodside landing-stage, and in about mid-river, the look-out man forward called out, "Vessel right ahead!" The engines were immediately reversed full speed. The Levant was anchored in the regular track of the Woodside ferry-boats. The 6th and 7th articles of the answer were as follows:

6. Except so far as they are herein admitted, the defendants deny the truth of the allegations contained in the plaintiffs' petition.

7. The said collision was caused wholly by the negligent and improper conduct of those on board the Levant. They anchored their vessel in an improper and unsafe berth in the known track of the ferry steamers. They had not a proper look-out, nor a bell ringing as required by law.

Jan. 21. The case came on to be heard, and the hearing was continued on the 22d of January. The result of the evidence, so far as material, appears from the judgment.

The Admiralty Advocate (Dr. Deane, Q.C.), and Myburgh, for the plaintiffs.

Milward, Q.C., and Tidswell, for the defendants.

SIR ROBERT PHILLIMORE: In this case the Levant, a screw steamship of 472 tons register, and the Lancashire, a large paddle-wheel steam ferry-boat, came into collision on the 26th of October last, about thirty minutes past seven in the morning. The exact place is a matter of controversy, but it is sufficient to state at present that it was between the Woodside landing-stage and the St. George's landing-stage, and