[1860.] THOMPSON V. NORTH EASTERN Railway Company. breach of the agreement; and fifthly, that the plaintiffs had notice of the state of the basin at the time their vessel was navigated through the basin, and might, by reasonable care in navigating the vessel through the basin, have avoided all damage to the vessel. The plaintiffs joined issue on these pleas. The On the trial, before Cockburn C. J., at the sittings at Guildhall, after Hilary Term, 1860, it appeared that the defendants were the owners of certain docks and works constructed by them near the river Tyne, under the powers of "The Jarrow Dock and Railway Act, 1854," 17 & 18 Vict. c. clxiv., and other Acts of Parliament. They consisted of a dock of two locks, one called the 80 feet lock and the other the 60 feet lock, leading from the dock to a tidal basin, through which vessels leaving the dock had, after passing through one or other of the locks, to navigate to reach the river Tyne. Plans of the dock, locks, and tidal basin were put in evidence. The plaintiffs were the owners of The New Zealand, which was a vessel of 674 tons burden. New Zealand passed from the Tyne through the basin into the dock on the 9th of March, 1859, being then in ballast. She took in a cargo of coals in the dock for the purpose of proceeding to Aden, and on the 19th March, being then fully loaded and under the charge of Morrison, a pilot of the river Tyne, at four o'clock in the afternoon, and at the top of a spring tide passed through the 80 feet lock into the basin; and whilst proceeding through the basin, towed by a steam tug for the purpose of passing into the river Tyne, the vessel ran aground in the basin, and though she was got off the next day, she proved nearly a total wreck, and it was for the loss of the vessel the action was brought. The dock was opened to the public on the 3d March, 1859. Before the dock was opened, the defendants published three printed bills; one dated March 2d, 1859, being the list of rates, tolls, and duties, payable under The Jarrow Dock and Railway Act, 1854; another, being a notice of the mooring and police charges which might be levied on all vessels entering the docks after the 4th March, 1859; and a third, dated March 3d, 1859, being rules and regulations to be observed by masters of ships, steam-boat pilots, and others. The basin is 9 acres in extent, and opens into the river Tyne. The opening into the river Tyne is through two pier heads or jetties, through which there is a space of about 120 feet; the distance from the opening between the jetties to the 80 feet lock was 540 feet. In constructing the basin, a dam or bank was put across from cast to west, for the purpose of keeping out the water during the excavation; when the excavation was completed, and the water was let into the dock, the operation of cutting through the bank was commenced, and continued until a channel was formed. At ordinary spring tides the depth of water at the dock sills was 24 feet 6 inches; the depth of the dock was 25 feet; the depth of the basin, as far as the bank, was 25 feet, or six inches more than at the dock sill. At the time when the dock was opened, a channel had been cleared through the bank, 70 feet wide opposite the middle of the space between the jetties at the entrance of the basin, through which vessels had to pass. Vessels going out of the 80 feet lock, had to go a little to the eastward to get into the channel, and vessels going out of the 60 feet lock, had to go a little to the westward. At the time when the dock was opened, the 70 feet channel had been excavated to about 3 feet 6 inches above the bottom of [1860.] THOMPSON V. NORTH EASTERN Railway Company. the rest of the basin, and 3 feet above the level of the dock sill, and the dredging of the channel went on from that time until The New Zealand went out, during which period 3180 tons were taken out from the basin. Between the 3rd and the 19th March several vessels passed out, which were piloted out by the regular pilots. Previously to the opening of the docks the pilots used constantly to sound in the channel; there were no buoys, marks, or anything to indicate the margin of the bank, or where the channel was. It was intended to dredge away the whole of the bank, and to make the whole of the basin of the same level. The defendants opened the dock before they had completed the basin, because they considered that the water upon the bank where it had been excavated, which was 21 feet 6 inches at spring tides, would, upon the whole, for practical purposes, be quite sufficient for any vessels coming into the Tyne, and that, as on an average there was not more than 21 feet 6 inches of water upon the bar of the river at spring tide high water, if vessels could enter the Tyne at all it was quite sufficient to enable them to enter the Tyne docks. With a view to certain projected improvements in the bar of the Tyne, the level of the lock sill had been placed 3 feet below the level of the bar. One of the plaintiffs was on board The New Zealand when she started. It had been arranged between Bullock, the deputy dock master of the defendants, and Morrison, who had been engaged by the plaintiffs to take charge of the vessel out of the dock to a certain point in the river, where the sea pilot would take charge of her, that Bullock should give him a signal when it was high water, or when the depth of water marked on the dock sill was 5 feet more than the vessel drew. When Bullock accordingly gave the signal, the vessel started, towed by one steamer ahead and there was another steamer astern; there was a strong breeze, west-south-west, blowing; as soon as the vessel got out of the dock into the basin, the helm was put a-port, which was necessary in order to make her go to the eastward. There was conflicting evidence as to whether the vessel answered her helm before she grounded; and as to whether the chains of her rudder being fouled did not prevent her helm being put a-port. At the time she went out of the lock the depth of water on the dock sill was 24 feet 6 inches: the depth of water on the bank in the 70 feet channel was from 3 to 4 feet less. On the 8th March, with a similar tide, Morrison piloted a vessel called The Oregon, which drew 20 feet 7 inches, out of the dock through the basin into the river; the depth of water marked on the dock sill being then 25 feet 6 inches. He took soundings in the basin before he took The Oregon out. He had seen the dredgers dredging the basin. The Lord Chief Justice left the following questions in writing to the jury, who gave the answers put opposite each question. Was there negligence in the defendants 1. In opening the dock and basin before the whole of the ridge or bank had been removed, and the bottom of the basin rendered of uniform level? Yes. Or was it sufficient to leave a channel of 70 feet wide between the lock gates and the jetties? No. 2. Or in suffering the basin to remain in an imperfect condition, if by reasonable diligence they might have perfected it by the time of the accident? Yes. 3. Or in permitting vessels, and especially a vessel of this burden, to navigate the basin in its then condition Yes. [1860.] THOMPSON V. NORTH EASTERN Railway Company. [1860.] THOMPSON V. NORTH EASTERN Railway Company. 4. In permitting them to do so without notice as to the course and extent of the channel? Yes. If negligence in either of these particulars established, further questions necessary to be answered. 5. Did the owners of the ship, or either of them? No. 6. Or did the pilot who had charge of her know of the condition of the basin, and that there was only a particular channel in which it was necessary to keep? Yes. 7. Did the injury to the vessel arise wholly from any negligence of the defendants? Mainly. Or did it arise either in the whole or in any material degree from mismanagement or want of seamanship of those who had charge of the vessel? Not in any material degree. 8. Or from the accidental fouling of the chains? No. 9. Might the damage have been avoided by the exercise of due care and skill on the part of those who had charge of the vessel? No. Upon these findings the Lord Chief Justice directed the verdict to be entered for the plaintiffs: but leave was given to the defendants to move to enter a verdict for them; either on the ground that under the circumstances no action could be maintained, or that on the findings of the jury the defendants were entitled to a verdict. In the following Easter Term, Sir F. Kelly obtained a rule calling upon the plaintiffs to shew cause why the verdict should not be entered for the defendants on the plea of not guilty to the first and second counts, and upon the third and fifth pleas, to the third count, on the grounds that under the circumstances the action was not maintainable; and that the |