Odger's English Common Law

DEFENCES. . 513
unless the defendant could reasonably be expected to provide
against such act or default. 1
Suppose a vessel, which is properly navigating a public river, is through
no fault of those on board it run into and sunk by another vessel, and
becomes a danger to all using that waterway. What is the duty of its
owner ? " There seems no doubt that it is the duty of a person using a
public navigable river, with a vessel ofwhich he is possessed and has the control
and management, to use reasonable skill and care to prevent mischief to-
other vessels ; and that, in case of a collision arising from his negligence,
he must sustain, without compensation, the damage occasioned to his own
vessel and is liable to pay compensation for that sustained by another
navigated with due skill and care. And this liability is the same whether
his vessel be in motion or stationary, floating or aground, under water or
above it ; in all these circumstances the vessel may continue to be in his
possession and under his management and control ; and supposing it to
be so and a collision with another vessel to occur from the improper manner
in which one of the two is managed, the owner of the vessel properly
managed is entitled to recover damages from the owner of that which
was improperly managed. This duty of using reasonable skill and care
for the safety of other vessels is incident to the possession and control of
the vessel." 2
A person, however, may cease to have the possession and control of
a vessel by some casualty of navigation ; if this occurs from unavoid-
able accident and if the owner is wholly blameless in the matter,
he cannot be compelled to remove the sunken vessel, although it is an
obstruction to navigation, nor even it seems to take measures for diminish-
ing the danger. No indictment would lie under such circumstances for
the danger and impediment to the public, and therefore no action would be
maintainable for particular damage resulting to an individual from the
obstruction.
It is no defence to an action for nuisance that the nuisance
existed before the plaintiff came to reside in its neighbourhood,
whether he knew the fact or not. 3 Thus where the defen-
dant's stable was built so close to the wall of the plaintiff's
residence that the stamping and kicking of the horses, the
rattling of ropes, chains and blocks against the ring-bolts
1 Box v. Jubb (1879), 4 Ex. D. 76.
2 Per cut. in Brown v. Mallet (1848), 6 C. B. at p. 616 ; and see Vivian y.
Mersey Docks Board (1869), L. E. 6 C. P. 19, 29. As to the liability of commissioners,
trustees and harbour authorities acting under the statute law for
negligence and breach of duty, see^.v. Williams (1884), 9 App. Cas. 418 ; Sanitary
Commuriimen of Gibraltar v. Orfila (1890), 15 App. Cas. 400. 403 ; Cowley v. Tlw
Newmarket Local Board, [1892] A. C. 345 ;
Arrow Shipping Co. v. Type Improve-
ment Commissioners, [1894] A. C. 508.
8 Sturges v. Bridgman (1879), 11 Ch. D. 852 ; and see the remarks of Lord Halsbury,
L.G., in L. B. $; S. V. By. Co. v. Truman (1885), 11 App. Cas. at p. 52, and of
Earl o£ Selborne at p. 56.
B.C.L.
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