advantage. See City of London (1845), where Dr. Lushington says

"I have had occasion over and over again to say in this Court, and I shall endeavour to put it in the clearest language I can cominand, that whenever two vessels meet at sea, and there is any probable chance whatever of collision, it is their duty to abide by the principles of navigation, and each of them to take the precaution to put the helm to port, when both are free, so as to avoid the chance of accident; and for this obvious and plain reason: that in a dark night like this, how often must it happen that some doubt will arise whether the vessel be direct ahead, or one point to the starboard or to the larboard? And are you to leave to mere chance the discovery of this with perfect accuracy, or are you not to adopt immediately that which is the only safe precaution-that is, following out the principle of the order, putting the helm to port at once, and so avoiding the collision "t

Where one of the vessels is close-hauled, the steamer or the other vessel is to take the whole duty of avoiding her, and whether steamer or sailing vessel, is not restricted to going to the right, but may take any course, and resort to any measures which are most judicious and convenient.

The principle of this rule is very well stated in the American judgment in this case of the Osprey, thus :

"The one having the advantage of a fair wind can diverge from the line of her course so as to avoid collision, and then return to that line, or take another verging toward it and carrying her to the same point. But the vessel which is close-hauled, whether on the larboard or starboard tack, can give way only by going to leeward, and cannot regain the line of her previous course, but when she again hauls to the wind, must proceed on a line parallel to her former course. She thus loses the whole distance she has diverged to the leeward, which may sometimes occasion great delay and hazard. The same reasons apply with increased force to the case of a steamer meeting a sailing vessel close-hauled; the motive power of the former giving her a greater advantage than even a fair wind does to a sailing vessel."... i

:

So far the rule and law in England and America seem to correspond; but now comes the case in which a steamer and a sailing vessel going free, meet, as did the Osprey and the Fanny. Is there such an equality here as requires the application of the rule of each ship porting her helm? In England, yes:

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America, no: and hence the peril of this new decision, pronounced by a very able judge. It proceeds on these grounds :

"If we have one rule when the sailing vessel is close-hauled, and another when she is going free, then the steamer must first ascertain the direction she is sailing, and then whether the wind is fair for that course, which may sometimes be a matter of doubt and difficulty, for the steamer is not as watchful of the wind, and cannot as readily determine its direction as if she depended on sails. As she moves rapidly, the wind will often appear to be more ahead, and consequently more fair for the approaching vessel than it actually is, especially if it be light; besides which, the wind may sometimes be baffling. All these doubts and uncertainties will be obviated by having one rule for all cases of sailing vessels meeting steamers."

Doubts are just as much obviated by having the rule of steering to the right in all such cases: this argument, therefore, has no force whatever. It was contended, however, with more reason, that "A steamer has an advantage over a sailing-vessel, even with a free wind. She can oftentimes turn in a shorter time and space, and check, stop, and reverse her motion, in a manner which a sailing-vessel cannot. The motive power of the one is under human control and at all times available; that of the other is not. The wind bloweth not only where it listeth, but when it listeth, and it is of importance to the sailing-vessel to improve it to the utmost, while fair. It may suddenly come ahead, or wholly cease, and in the latter case, she would be helpless."

On the other hand, however, it is obvious that a vessel having the wind large is, in point of fact, placed but very slightly under such disadvantage, a few points to leeward; if it so happen even that she be on the starboard tack, it matters very little, for if the wind is large, she can easily regain her course. Nevertheless, these reasons have prevailed; and, according to this last decision, when a vessel sailing free meets a steamer, the former is to keep her course, and the steamer is to steer to the right or the left as she deems expedient: and the case of the Northern Indiana (1852) affords a precedent for this ruling. But the evil of this is that, according to the testimony adduced in the trial about the Osprey, according to the British practice, when a steamer meets a sailing-vessel going free, both port their helm, and British captains who come to Boston always act upon and inculcate that rule. The consequence, is that a collision will result frequently from these

conflicting rules; as happened in this case, the steamer putting her helm to starboard, while the brig ported hers.

How infinitely better it would be were all nations to rule that, in all cases of approaching collision, each vessel should, as far as possible, port her helm! True it is that in the case only of the vessel close-hauled on the larboard tack she would lose way, but certainly only to a very slight extent; while the vessel close-hauled on the starboard tack could lose none, for she is required, if possible, to luff, and steer still closer to the wind. In the case of steamers, or of vessels sailing free, there could be no difficulty in applying this rule of always steering to the right one surely most strongly recommended by its simplicity, and having no single disadvantage, but that most casual and minute one of causing vessels, close-hauled on the larboard tack only, to fall off in a trifling degree.

We trust that the American courts will reverse this decision, and that Dr. Lushington's law will be extended to all cases and all nations.

INCE our last number the Statute-Law Commission has

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met, and appointed Mr. Bellenden Ker its standing committee. Several meetings have been held, and some steps of an inconsiderable character have been taken.

In the House of Commons Mr. Locke King gave notice of a motion, on the first day of the session, for the production of Mr. Coode's Poor-Law Digest, which Mr. Bellenden Ker had described in one of his reports as a valuable specimen of a Digest of Statutes; and also for the Expurgatory List of Obsolete Statutes, prepared by Mr. Anstey and Mr. Rogers, and similarly described. A day or two afterwards, when the motion came on, it was granted without opposition.

In making his motion, Mr. Locke King took occasion to animadvert upon the course which had been adopted, of dismissing all the Commissioners but Mr. Bellenden Ker and Mr. Brickdale, contrary to the understanding of the House in granting the vote for one Chief Commissioner at 1,000l., and four Assistant Commissioners at 600l. a year, and his observation was met by expressions of assent by the members present, who appeared to take great interest in the subject.

We trust that whatever may be the merits of Mr. Bellenden Ker and Mr. Brickdale, the Commission will be reinforced by adequate experienced aid; and that the business of the Commission will be proceeded with in good earnest. Rumours had reached us that nothing had been done at Christmas; that several meetings had failed for want of a quorum; and that the Commission was as much to seek as ever in its principles and its proceedings.

But we cannot believe it; for an affair of really so much importance must meet with, as it fairly claims, more earnest attention than such rumours would indicate. We regard it as a good thing that the House of Commons has turned its attention to the subject. When once the members are fully possessed of a matter, they are disposed to engage in it with earnestness and with effect.

We are so deeply concerned in the success of the undertaking, that we will not say anything at present to damp expectation; but we would entreat those, upon whom the success of the measure depends, to bethink themselves of all that has been said or done on the subject, and, by a timely foresight, so to arrange the operations of the Commission that disappointment may not be the certain result.

From all that we can learn, the subject is likely to come under discussion in the House of Commons at the next vote of the grant to the Commission, if not before; and, as we understand, with a desire to place the matter on a footing which shall ensure success, and every facility, in the meanwhile, to the distinguished personages who have kindly consented to form a part of the Commission. Their case is a hard one; for, by so much as they are distinguished, will the expectation of the public be

raised, while the arrangements at present are such as not to give the means of doing much to any good purpose.

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We cannot but feel that two years (1853-54) have passed away since the Chancellor made his great speech in February, 1853, and, we fear, with little practical result. Two more years will pass as rapidly and as ineffectually, if some purpose, and some plan of action, and some proper means, be not adopted.

It seems desirable, that before another vote be granted, that these points should be well considered, for the common benefit of all parties the public, the Parliament, and the Commission itself. The impression abroad is, that the Commissioners, many of whom are occupied with the business of their own courts and offices, feel that they cannot assist usefully as the Commission is at present constituted, and that the arrangements for their sittings are not such as to allow of their regular attendance. Might it not be well to regard the affairs of this Commission as of sufficient, if not of paramount, importance to admit of the Courts being adjourned, to allow of the members of the Commission sitting regularly, and in due form?

The following explanation is given of the appointment of Lord Wrottesley as a member of the Commission:-That he was formerly a pupil of Mr. Bellenden Ker, and is his personal friend. We have no objection to that member of the Commission, upon whom falls the full executive weight of the work of the Commission, having a fair share of influence, but great care should be taken to prevent that influence preponderating, and so leading the other members of the Commission to withdraw, without saying why, from taking an active part in its proceedings, from the feeling that, do what they may, they would have no chance against the constant quantity of Mr. B. Ker.

The composition of a body of this sort is of great practical importance, for some gentlemen of the profession who have served well and usefully in this branch of affairs, feel greatly aggrieved by the course of conduct pursued in regard to them, which they attribute to the jealousy of Mr. B. Ker.

Indeed, there seems to have been practised great cruelty towards three of the late Commission, one of whom, after acquiring no inconsiderable experience in this work, has been

VOL. LIII. NO. CVI.

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