[From] A Compendious View of the Civil Law
and of the Law of Admiralty being the substance of a course of lectures read in
Vol. II [page 539]
Briggs v. the Perseverance, George Tetherly Master
Two brigs, the Ann of Whitehaven, Joseph Briggs, master and part owner, and the Perseverance, of Appledore, Tetherly, master, encountered each other in the Irish Channel on the 30th of May, 1795, in a very thick fog, and by the collision the brig Ann was sunk, which was the origin and foundation of the present suit. The stroke was between and upon the larboard bows of each vessel.
It was agreed that the Perserverance was steering her course N.N.E and the Anne her’s S.S.W. with her starboard tacks on board; and with respect to the wind the parties differed only as to one point, the Ann’s crew insisting it was S.W. by W.; it was not controverted that the wind was rather fresh; the perserverance then going at the rate of seven [page 540] knots an hour, the Ann at the rate of five – and that the Perserverance was going nearly before the wind, or going large, and that the Ann was in a position called by seamen close hauled.
Briggs admitted that the fog was so thick, that his crew could not see the Perserverance within 100 yards, but insisted that he was sailing into fog, and the Perserverance out, and brought evidence to prove that some of the Perserverence’s crew had declared that they saw the Ann ten minutes before the stroke; which was opposed by counter evidence, that went also to prove that the fog was equally thick all round.
It was proved beyond controversy and not disputed, that of nine persons, which was the number on board each vessel, every one was upon deck in the Perserverance at the time of the stroke, and some looking forward – whereas on board the Ann the captain was in bed, and some of the ordinary watch was absent; and of the other three, one was at the helm, and the remaining two intent upon splicing a rope and standing on the quarter deck. The party of the Perserverance, therefore accused the Ann of such gross negligence in not keeping a look-out, as made them answerable for all consequences.
Another great question arose, as to what was the duty of each ship, after its crew saw the other. It was admitted that the rule of marine law is, that the ship going large or before the wind, should give way to the ship going close hauled or across the wind.
This rule the crew of the Perserverance insisted they obeyed by going to leeward. The Ann’s captain insisted they ought to have gone astern. They answered they did in the true meaning of the term, and if anything else was meant, it was that they ought to have gone to windward, contrary to the universal rule.
It was insisted also by the Perserverance’s crew, that they did their duty, in putting the helm a port or hard a weather, [page 541] and in lowering their mainsail – that the helm of the Ann ought to have been put a lee (about which fact there was a contrariety of evidence), and her foresheet let go, and jib hauled down, which if there had been a man forward might have been done in an instant, and would inevitably have prevented the collision; that these last steps were not taken Briggs did not deny, but said it would have been impossible in the time.
In a case fit only for a jury of seamen (and which the impugnant earnestly urged the promovent to have tried by a jury in London, where cases of that kind frequently occurred, and a master of Trinity-house was often afforded to the judge at nisi prius), the judge of the admiralty obtained the assistance of the senior captain of the British navy, Sir A. Schomberg, who is resident in Dublin, as his assessor; and the parties added to the council, two gentlemen very respectable in the profession, and who had been in earlier life officers in the navy, Mr. O’Dwier and Mr. Barnes. The assessor, high in character as a man and as a seaman, was at first inclined to impugnants, but ultimately thought them wrong. The judge (though, as he said, not for the reasons given by his skilful assessor), decreed for the promovants, and the decree was affirmed on appeal to delegates by three common law judges, but without specially giving their reasons.