Collision-Lights for Steamtug-Towing Anchored Vessel up to her Anchor-Salvage.

A steamtug made fast alongside a vessel at anchor and steaming ahead so as to move her up to her anchor, in order that she may get it, is "towing another vessel" within the meaning of article 3 of the Regulations for Preventing Collisions at Sea, although the ship herself, being still under the control of her anchor, may not be a vessel "being towed" within the meaning of article 5.

Action for salvage brought by the owners, master, and crew of the steamtug Knight of the Cross against the owners of the barque Romance, her cargo and freight, in respect of salvage services rendered in the river Mersey, in the following circumstances:

The Romance was lying at anchor in the Mersey on a very strong flood tide and the Knight of the Cross and another steamtug, the Conductor, were engaged to dock her. For this purpose the two tugs were made fast-one on each side-alongside the Romance and were steaming ahead with her so as to hold her up to her anchor, while those on board her were VOL. 70.-P., D. & A.

getting it. During this operation the tugs were exhibiting their towing lights and side lights, whilst the Romance still had her anchor lights up. In these circumstances the steamship Javary, coming collision with the Romance, doing her up the river on the flood tide, came into considerable damage, causing her to part her cable, and rendering necessary the salvage services which were the subject of this action.

The defendants pleaded that the collision was caused or contributed to, and the consequent salvage services rendered necessary, by the Knight of the Cross and the Conductor exhibiting improper lights, and witnesses were called on their behalf from the Javary to shew that those on board that vessel had been misled by the tugs' lights into thinking that the Romance was under way, and was being towed towards the dock. On this ground the defendants contended that the Knight of the Cross was not entitled to salvage remuneration, and counterclaimed for the damage sustained by the Romance in the collision.

Butler Aspinall, Q.C. (Collingwood Hope with him), for the plaintiffs.-Article 3 applies here. Whether the Romance was under way or not, the tugs were towing another vessel within the meaning of that article. The tugs had been towing

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for forty minutes, and the ship was being held by them and not by her anchor; she, too, was therefore under way. The preliminary article of the Regulations defines the meaning of "under way," and these tugs come within that definition. If the defendants' contention is right, a tug towing a stranded vessel off the ground would have to exhibit the lights for a vessel at anchor.

Pickford, Q.C. (Dawson Miller with him), for the defendants.-Whether a vessel is to be considered at anchor or under way depends upon whether or no she is under the control of her anchorThe Esk and The Gitana [1869].1 Here the ship was clearly under the control of her anchor. It was in the ground and holding, because, when the strain of the collision came, the chain parted. The tugs were made fast alongside the ship and were as much under the control of the ship's anchor as she was. It is not necessary that they should be under the control of their own anchors, but they were held by the ship's anchor, just as if they had been hanging on to a mooring buoy. Articles 3 and 5 must be read together, and, unless the ship was within article 5, article 3 cannot apply to the tugs.

Butler Aspinall, Q.C., in reply. The tugs were not stationary. They were using their whole motive power and manoeuvring with their helms. In fact, they were not controlled by the ship's anchor, but were controlling it.

GORELL BARNES, J.-This is a claim for salvage services made by the owners, master, and crew of the steamtug Knight of the Cross against the vessel Romance, her cargo and freight. The Romance is a barque of 596 tons, belonging to the port of Frederikstad, in Norway, and at the time of the matters in question was on a voyage from Canada to Garston, with a cargo of timber and a crew of ten hands. She was lying at anchor in the Mersey, and the Knight of the Cross had been engaged to dock her. The Knight of the Cross went off on the evening of August 13 to assist in docking the Romance, and was made fast on her port side. Another (1) 38 L. J. Adm. 33; L. R. 2 A. & E. 350.

steamtug called the Conductor was made fast on the starboard side. It was high water at about 1.15 A.M., and some time before this the two tugs began to move the Romance up to her anchor, with a view to her getting it, and afterwards being taken away into dock. While this was going on there was a very strong flood tide running, and the steamship Javary, in coming up the river, was swept across the bows of the Romance and did her considerable damage. Her jibboom, bowsprit, and foremast were carried away, and the two tugs, seeing what was happening, slipped their ropes and backed clear. The Romance then fell back to her anchor, so to speak, broke her cable, and away she went. The salvage services which are the subject of the claim are for what was done afterwards to save her from drifting about the river on the flood tide and the ebb tide. It is not necessary to go into the particulars of what was done other than that the Knight of the Cross brought the ship, with other assistance, to the Cunard buoys, and took her into the Garston Dock. The salvage services are not disputed, except upon the one ground that the collision between the Javary and the Romance was caused by the negligence of the people on board the tugs. course, for the purposes of this action, it means the negligence of the people on the Knight of the Cross in improperly exhibiting their under-way lights. Both the tugs, which were made fast to the sides of the Romance, had their towing lights and their side lights up; the Romance herself had her anchor lights up at the time, and the point really made is one of lawnamely, whether the tugs had their wrong lights up in the circumstances, and may therefore be said to have contributed to the collision by deceiving, or possibly deceiving, the Javary into treating the vessels as being really in motion, and able to move into the adjoining docks. Now this point turns upon the construction of the rules with regard to lights. facts are what I have stated. The tugs and the ship having the lights which I have stated, had moved by the propelling power of the tugs up to a point nearly over the anchor of the Romance. I think it is not at all clear-because we have not

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had the people from the Romance calledwhether the anchor of the Romance was actually holding or not. I think it is not necessary to find that fact specifically. I

rather incline to the view that the anchor was still holding the ship, because afterwards, when this jerk came, the cable broke, shewing that the anchor was still in the ground. It is not quite clear on the evidence whether the cable was sufficiently free, but it is said in a sense not to have been holding the ship. I rather think it was, and therefore the ship, for the purpose of the point I have to decide, must be taken to have been-within the decision in The Esk and The Gitana 1-at anchor.

It is said that the tugs ought not to have had towing lights and side lights, but only the anchor lights up. I cannot agree with that view. The object of the Rules, so far as lights are concerned, is to indicate to approaching vessels what those who are exhibiting the lights are doing; and it seems to me that in this case the lights exhibited shewed exactly what these vessels were in fact doing-namely, that the ship was still at anchor, and that the tugs were towing her up to get her anchor. Moreover, the Elder Brethren advise me that it is the practice for tugs when towing a ship up to her anchor to get it, to exhibit towing lights, while the ship would still have her anchor lights up.

Then it is said, although that be so, yet according to the Rules there is blame to be attributed to the tugs. The point in substance is this-that the tugs were at anchor and not under way, and should have had anchor lights up. The defendants' counsel says that article 3 is not applicable, but that article 11 applies. He contends that the tugs ought to have carried the lights referred to in that article; that they were not under way, but were at anchor, having regard to the definitions in the preliminary articles of the Regulations for Preventing Collisions at Sea. The other view, taken by the plaintiffs' counsel, is that article 3 applies; that the tugs ought to have carried, as they were doing, the towing lights and side lights provided by that article, and that they were under way within the meaning of the Rules. It seems to me

that, upon a true construction of the Rules, the tugs were in the circumstances of the case towing the Romance, and were under way within the meaning of the Rules.

The question of what lights the ship herself should have had has not been argued, but it is perhaps necessary to consider all the Rules which relate to this question of lights, in order to arrive at a clear conclusion upon it. My present impression is that the shipthough it is not necessary for me to decide it had the proper lights exhibited, and that article 5 was not applicable to her; that is to say, she was not a vessel being towed within the meaning of that article, because she was not, strictly speaking, under way. But I do not think it follows at all from that that the tugs may not have been towing her, and under article 3. In fact I think the tugs were towing her and were under way. It seems to me that only by the most violent construction of the last paragraph of the preliminary clause can the defendants' contention be maintained. That paragraph is "A vessel is under way' within the meaning of these Rules, when she is not at anchor, or made fast to the shore or aground." It has to be said that the tug in this case was at anchor. It is said that if the ship was at anchor, the tug, which was attached to her, is to be treated as using the ship's anchor as her own, and therefore at anchor too. The tug in this case was not under the control of her own anchor, but was she under the control of the ship's anchor? I think not. She was in fact moving the ship up to her anchor, and was under way for that purpose just as much as if she had been made fast ahead and was towing her, only connected by a towing hawser. I think it would be straining the interpretation of these Rules if I were to uphold that contention. In my opinion, according to the proper construction of the Rules, the tug in this case was carrying the proper lights; and that being the defence on that part of the case wholly fails. I cannot myself see, nor can the Elder Brethren, how it can be said that the carrying of those lights in any way contributed to the collision. What really seems to have been the case

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is that the other vessel was coming up upon an extremely strong flood tide without making sufficient allowance for the position of these vessels.

The only other matter which remains to consider is, there being a salvage claim, to which an answer is not maintainable in my judgment, what amount should be awarded. No serious risk was run by the tug, and the total value of the property is very small-only 2,2007.; and after considering the matter with the Elder Brethren, I think the sum of 1757. will be an adequate reward for the services of the Knight of the Cross.

Solicitors-Miller & Son, Liverpool, for plaintiffs; Weightman, Pedder & Weightman, Liverpool, for defendants.

[Reported by H. Stokes, Esq., Barrister-at-Law.

Divorce. GORELL BARNES, J.

1900. May 14.

B. (OTHERWISE H.)

V. B.

Bargrave Deane, Q.C. (Spokes with him), for the petitioner.

Le Bas, for the respondent.-It appeared from the evidence called at the hearing that the petitioner made the acquaintance of the respondent some time during the year 1895. The respondent was supposed to understand hypnotism and magnetism, and the petitioner originally went to him to be treated for an ailment from which she was suffering. After a time the respondent, having discovered that the petitioner was a woman of means, proposed marriage to her, and accepted. He suggested that she should execute a settlement for the benefit of the children of the marriage (if any), and a settlement was subsequently drawn up on the respondent's instructions, which the petitioner executed without reading it, and which, in fact, gave the respondent absolute control over the petitioner's preperty in any event.

was.

The parties went through a ceremony of marriage on March 25, 1896, at Wynne Row Baptist Chapel, Lambeth.

After the marriage they went for a six weeks' tour on the Continent, visiting several places, amongst others Florence and Vienna, and returning through Paris home. During the whole of this time the

The fact of the physical incapacity of either a husband or wife to consummate a marriage may be inferred from his or her conduct during their married life.

Therefore, where a husband during the time he lived with his wife obstinately refused to consummate the marriage, and, after she had filed a petition for nullity on the ground of his impotence, refused to allow himself to be examined by the medical inspectors appointed by the Court, and the inspectors certified that the wife was fully developed and a "virgo intacta," THE COURT held that it was justified in assuming that there was physical impediment to consummation on the part of the respondent, and pronounced a decree of nullity.

This was a suit for nullity brought by a female petitioner against the respondent on the ground of his impotence.

sent, and strongly against her wishes, insisted on their occupying separate bedrooms. He never consummated the marriage, but obstinately refused to go to his wife's bedroom or to have any intercourse with her of a sexual character. On the way back to Paris, at a place called St. Augustine's, the petitioner went one night into the respondent's bedroom. He was very angry, threatened to throw a water-jug at her, and ordered her to leave the room. She refused to do so, and ultimately he went to her bedroom, where he locked himself in and passed the remainder of the night. On their return to England they went to live at a farm near Birchington, where they still continued to occupy separate bedrooms, the respondent refusing to live with the petitioner on any other terms.

Finding that there was no prospect of obtaining any alteration in their mode of life, and as the respondent was dealing as