LAW INTELLIGENCE
COURT of KING’S BENCH
The fatigue of attendance at the Sittings at Guildhall, where the general sameness of the scene almost always produces a tedium, was amply compensated on Saturday by the brilliant exertions of the Counsel, in a cause of the utmost importance to every body concerned in shipping, as well to all sea-faring people in this country.
The main strength of the bar was called forth on this occasion.
On the side of the plaintiff Messrs. Erskine, Mingay, and Wood — On the other side, Mr. Bearcroft, honest Jack Lee, and Mr. Chambre.
The action was brought to recover the amount of damage done to a vessel coming up Channel last November by another, outward bound ——— and what appeared singular in the business was, that the ship, against the owners of which the action was brought, had gone down by the shock.
No bad intention being imputable to either party, the question turned entirely upon ascertaining by whose negligence the accident happened, and upon the general principles of seamanship.
Those were explained by Mr. Erskine in a most clear and masterly manner; so much so, as to excite the applause of the whole Court.
He set out with a proposition which created a general burst of laughter.
Models of the two ships being laid on the table, he threw down the gauntlet to his opponent Mr. Bearcroft, whom he called the learned Commodore, invited him to get on board their respective ships, and to fight the cause out, as by a wager of battle. This challenge not being accepted, he explained the nature of the case to the jury in an eloquent speech. His client’s vessel, the Judy Randolph, was making the Downs close hawled, at the time she fell in with the Petersfield, from which she received the injury —It was about half past eight o’clock at night, and about four or five miles from shore. The Petersfield was the last of a large outward bound fleet, and was described as possessing all the advantages of wind and tide, both of which were unfavourable to the Judy Randolph. In that predicament Mr. Erskine contended, that it was the duty of the Petersfield to have gone to leeward, in order to make a birth for the Judy Randolph; but before he entered upon that part of the subject, he called witnesses to prove the state of his own ship.
The second mate, John Field, deposed, that the watch had been regularly set, and every thing in perfect order on board the Judy Randolph. It was his watch, and the usual compliment of hands were on deck. — That one of the men, Neil Johnson, who was on the forecastle to keep a look out, had perceived the Petersfield at the distance of a quarter of a mile, and observing her bearing right down on them, hailed her instantly five or six times, but without receiving any answer; and circumstanced as they were, close hauled, after luffing up to two ships a few minutes before, it was impossible for them to avoid the Petersfield, tho’ they attempted it by putting up the helm.
The negligence on the part of the Petersfield being proved, Mr. Erskine went into the second part of his agreement, viz. The general rule by which Captains of ships meeting each other at sea ought to be governed.
This, he contended should be the same that is observed on the roads or in the streets, and that any accident which may happen by a deviation from it ought to be, and really was liable to the very same penalties.
When a ship in the situation of the Petersfield, with a large wind and with a free command of her helm, met one circumstanced like the Judy Randolph, it was, he insisted, her duty to go to leeward, because in doing so she would lose no way at all, and the other, on the contrary, could not regain her birth without tacking. But no decision having ever taken place to establish this as a general, fixed rule, several Captains of ships were called to prove what was the common usage on such occasions. A very shrewd and intelligent Captain of the name of Peake, Captain French, a veteran seaman, whose manner and appearance, as well as the candid manner in which he declared his sentiments, impressed every body present with the greatest respect, and some other gentlemen on the side of the plaintiff confirmed the Justice and propriety of Mr. Erskine’s doctrine, which the verdict of the Jury afterwards established as the law.
On the part of the defendant, several witnesses were called to describe the situation of the Petersfield, which they stated very differently from the account of Drake and Brown, both as to the care of the watch, the management of the ship, and the state of the wind.
After an uncommon share of wit and pleasantry between the Counsel, which turned chiefly on Mr. Erskine’s superior knowledge of tactics, and a very able speech by Mr. Bearcroft, to which Mr. Erskine made an admirable reply, the learned judge summed up the evidence on both sides with great precision, and submitted to the Jury “the importance of ascertaining, beyond the possibility of any mistake, the general principles by which all Captains of ships in such situations should steer in future.” He remarked, that it was rather singular this point had never before been determined, considering the innumerable subjects which had been litigated among naval men. But as the Jury was composed of the most respectable class of citizens, and the cause attended by such a multitude of Captains and owners of ships, the matter could never be decided with more fairness and solemnity.
The Jury, after a few moments consultation, found a verdict for the plaintiff to the full amount of his damages, and also declared, as has been before stated, that in future the ship that has the wind shall go to leeward.