The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1860-05-15 00:00:00

11111 Itsimro OF THE ROA? •ENIEL.

Cherie Amebae. v. Edward Way.--Mr. Howard
red for the plaintiff, and Mr. Cornelius for the
4,evaiisst. The ease bad been adjourned from two or
aree parlous Courts, and the judge advised that it
&pad be tatted by arbitration, but it appeared that
ithe defendant was obstinate and would not come to
tergee. Damages were laid at £3O. Mr. Hnward
"wed the case. It appeared that the plaintiff in this
action was formerly the owner of a boat called the
Aerial, which was ran down on the 27th November
last through tbe negligence or the unskilfulness of the
defendant, who wee. pilot residing at Portland and the
owner of • smell pilot boat called the Gauntlet. The
plaintiff gave CM for bin boat at the commencement of
last Immo, and expended £l5 more upon it in repairs
and fitting% making togetl et 00, the amount which it
was Bought to recover. The boat measured 31 feet from
stem t 3 storm, 8 feet base, and carried two tons of
ballast. From the tale the Channel Fleet first Caine into
the inside, the plaintiff was appointed to take the
min ANS from the Weynouth Telegraph °Motet Wei-
mer tb to the Admiral and vessels of the fleet, and on
sum ebie the 23th November lea, he had • telegram
de'dased to hies, about • quarter part 12 at noon, to
to tbe Admiral who was on board the Royal
Albert, thee at anchor in Portland Roads. He took
smith him • seamen named Gill to assist him in the
memagement of his boat,—it being enforced by the Bye
Luria the Corporation here that no boat of this dimen-
vie. should leave the harbour without its containing
em, penults to manage it,—one of the telegraph c erks
tamed Alonzo Acott,— who wee that day allowed to go
out in the boat for on excunion,—and mother boy
usmil William Davis, • lad of 15 years of age, but who
was not altogether unacquainted with nautical matters,
he having • boat of his own. They arrived in the Port-
laud Roads shortly after 1 o'cloek, and after tasking
about • few times brought the boat to within shoat 20
yards of the R 4.1 Albert,—no large boats being
',Bowed to go alompide Her Majesty's ships,—and hove
to with the fore sheet to the wind, which was blowing
NW. at the time, and the fore part turned towards
Weymouth. After they had hove-to, plaintiff got out
of his boat inn • small boat, or punt, and took the tele-
gram to the Royal Albert. A
_gentleman on board
wanted him to take him to the Mersey, which he did,
and rearms' to the Royal Albert to bring Mr. Charles
Mitchell, at present residing at Clifton, to Weymouth.
When however, he got back to the Royal Albert, Yr.
Mitchell had got into a lugger to go to Weymouth, and
pleat& returned ti the Aerial. He was absent alto.
gather about • quarter of an hour, during which time
ja. whom he left in tharp of the boat, had taken in
elm and put on • smaller one and reefed the
matiosail. The vessel was lying-to, and was perfectly
pa the whole of the time. Plaintiff, on um-
* " board, was fastening his punt to the
liner boat, when the Goantlet, coming down from the
ado( the Breakwater to her moorings inside at. coal
hulk, nut into her, stove in her bow and sunk her.
Plaintiff had just time to jump back into his punt aud
release it from the but, and the other three jumped on
board the Gauntlet when the Aeriel went down. The
Gauntlet was free-hauled, and could have passed either
the bow or the stern of the Aerial by merely altering
the helm, even bad defendant not sun her till he came
within ten yards of her. Gill was on the windward
aide of the boat reefing the main-sail, and did not see
Gauntlet coming down upon them, and even if ha had; the
Aerie!, being perfectly helpless at the time, could not
have been got out of the way of the Gauntlet. As soon as
the Acrid wes sunk and her crew had got on deck of
the Gauntlet, defendant said, "hallos, what is the
matter now, what business have you here; you had no
busiaus here." Plaintiff said his boat was lying-to,
and defendant ought to have avoided it, when the
Inter soid he was very forty, but the min was in
kis eyes sad he did not see the boat. Mr. Mitchell, who
was 111 the logger, about 20 or 30 yards off, and was look-
oo the whole of the time, then went to the Gaunt-
let sad toll defendant be was • scoundrel for run-
ning into the boat—that it was entirely his own fault,
for he could have avoided the collision had he given
a proper look out, by merely shifting his helm to pea
either the bow or the store. He then took the plaintiff
sod his crew on board the lugger be had hired, landed
them at Portland, lent coati to two of them, and sent
them in a cab to Weymouth. Defendant told Mr.
Mitchell he was very sorry, and he would try and make
plaintiff some recompense to-morrow. The next day
plaintiff went to Portland to see the defendant, and
asked Ines if be would resist hint to raise the boat, the
load winch was a great incon yea ion°. to him, as it 'sash
be pessessed, and in losing it lie would line his means of
pitting a living. Defendant refused to do anything, and
plaintiff then consulted Mr. Howard who wrote to the
him. On the sth December defendant went to
the pleated' who was on the quay at Weymouth, near
the Bank-house and said" I believe you are going to
law with ins." Plaintiff told him he was, and defen-
dant said if he would not, he would raise the boat and
pot it in repair, and plaintiff who called to Gill who was
seer to witness what paned, told him if he would
raise the boat, he did not wish to be bard with him,
and would render hiin what assistance lay in his power.
Deleadent then suggested that they should get up •
peals, sad said if saLsintilf would get rap one and
01111111111 V4l'o/01101, he would convaas Portland. The
eat day defendant ma three men to 'mist complainant
to raise the boat, bet the wind had changed, and the
Barney, one of the line-of-tattle ships had been driven
rotted near to where the boat was, and they could not
wort. The day following plaintiff went himself with
his men, when defendant said be would have nothing at
all to do with it--he would not raise the boat nor assist
in main it, he would not take round the petition nor
do matting else, and thus the matter dropped, the boat
was left at the bottom of the meat the depth of 8
fathoms, and this action had been brought to recover
the lees sustained by the collision. In additicn to the
parties who were in the Aeriel at the time she was
struck, Mr. John Jennings Ball, harbour master at
Portland, who was several years • muter in the
navy, Mr. John Hales, of the coast guard ser-
vice, and for Nearly 30 years in H.M. navy,
and Captain Henry Carter, many years in the
merehantile marine service and from their united
evide p nce it aueired that ii would have been the duty
of the Ariel to lay-to while plantiff went to the Royal
Albert in the punt, and that while lying-to she was
perfectly helpless, and that it would have been the
slaty of any vessel under sail at the time to avoid her,
which would have been • very easy matter for the
Guntlett, even if she had come to within eight or ten
yards of her before she was discovered, if she
was sailing free as It had been said she was, and that
she might and ought to have avoided a collision, even
ml clovohanled. It was very easy for a nautical
man to tall when a vessel was lying-to at a quarter of
a mile or even three quarters of a mile off, and that it
was defendant's duty to keep proper watch. And
besides all this, it would have bees (halvah for any one
on board the Aeriel, even had they soon the Gauntlet,
to tell that they ware in danger of being run into, as it
frocimetatly happened that sailors, to *bile their agility
taanapng them vestals, ran straight towards • vessel
lying-to till within Borg yards and then so managing
their halm am to avoid • collision by going either on one
side or the other; and for a person in the vessel lying-to
to call oat to the parties in the ailing craft to avoid •
collision, would mein to be treating them as "land
lubber," and be deemed an insult to • nautical TIMM
If,. Hides said that many seamen, and be for one, as
was • well known liked to " emt it fine" when an
opportunity occur:ed.—For the defence, the defendant,
his Mother, John Way, and John Eliot were called.
They stated that the wind was W.N.W. and that
therefore the vessel was.under close-hawl, that the sun
was to their eyes and they could not see before them;
that being on the star-board tack they had to keep a
look out on that side of the vessel only, and that accord-
ing to marine law it was the duty of any venal to get
out of their way even if lying-to. The defendant denied
ever having made any promises to assist in raising the
sunken boat or to make any reparation, as he considered
the boat ought nut to have got in his way, and Mr.
Cornelius, the defendant's advocate, maintained that
plaintiff had not kept a proper look-out at the time;
that if be had, and given warning in time for the
defendant .to alter the coarse of his vessel, the collision
would nut have taken place ; but not doing sob. had I
Sol dope all that was necessary for him to do, that there
had been negligence on his part and he was not
stetted to recover_ —The judge in summing up mid it
was greatly to be regretted that this litigation had taken
place,- foe so fa as he could see, both the plaintiff and
defeodant were hard working worthy people, and it was
• pity they had spent money in going to law which might
have been devoted towards repairing the lose that had
been sustained. In deciding the question at issue he
must take • common sense view of the case. The
Ain't, it was said on one aide, was lying-to at the time
of the collision and was perfectly powerless, and the
other side was not prepared to prove that she was sot,
as according to their own *hewing they did not see her
tall • moment before the bows were stove in, and if she
was helpless, it was quite evident that, however Militant
those on board might see their danger to be, they could
uot help themselves. It was therefore the duty of
defendant to keep • proper watch, and he had no
hesitatiOa in saying that If such had been done, they
moat have seen the boat before them in time
to have so altered the course of his boat es to avoids
eollision, for it hail been abundantly shown that • vessel
lying-to was easily discernable from • vessel under
sail. It had been argued that the plaintiff ought to
have raised an alarm for the defendant to have
sueicient warning to alter the helm and that mot
having done en he could not recover. But the law
if the sue was thie—la mast have been negligent
4 doing something which he could have done to avoid a
eollision, and a mere crying out to defendant to alter his
course, would not be a doing something be could him-
self have done to avoid • collision, but would he simply
to induce the intendant to do something to avoid
it The distinction in the two eases was very different.
If the *Malin could have got ost of the way it would
have been his duty to do so, but Isis beat being helpless,
ho could net be said to have neglected doing what he
might have done, and it was no part of his duty to put
the defendatit oe his gaud, to avoid a collinon, any
father than foe self presermition. As well would it be
the day of any cue minding a earrings, standing still in
thehighway to wars every patios dmving a 'shine along the
reed, Men drive spume his mange. Resides it had
hem sheens that meatiest mos *matinee liked to ail
" very lime and that under these circumstances Do one
meld tell if there wu danger of • collision till it was
teo late. Under these earmanstasees he was bound to
give • verdict for the plaintiff, and as the amount had
not been disputed, it would be for £3O. He trusted,
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