20 THE FREDERICK GERRING, JR. 



is wrong, but it is submitted that that rule only apphes where there 

 is contradictory testimony between the phiintiff's and defendant's 

 witnesses, and then only where all the witnesses have been exam- 

 ined before the judge. But the rule itself has been qualified. 



In the collision case of the John Ormston vs. Hallandia, reported 

 in the 'Shipping Gazette/ July, 1895, in the Court of Appeal, 

 the Master of the Rolls giving judgment said, "even though there 

 be nothing but contradiction in the evidence given in the Admiralty 

 Court, it is quite true we are bound to listen to the evidence which 

 is brought before us and to apply our minds to it. It has been laid 

 down over and over again that where there is a difference of evidence 

 as to facts in the Admiralty Court, the accuracy of one side or the 

 other must depend in a great measure upon the demeanour of the 

 witnesses. It has been laid down too, that in such cases those 

 who appeal against the decision of the Admiralty Court as to the 

 facts found by the Court can hardly succeed where there is a conflict 

 of evidence, which conflict is to be determined by the demeanour 

 of the witnesses, unless they can point out some undisputed fact 

 or some fact as to which there is such a preponderance of evidence 

 that the Court will treat it as an undisputed fact." 



Here the undisputed and admitted fact is, that the Gerring 

 was outside the line by over half a mile at the time she commenced 

 to bail her fish out of the seine, that she was heading southerly 

 off shore with her head sails down, her foresail and mainsail set, 

 with both her booms well off to starboard, the wind to the eastward 

 and making headway. She would have to make sufficient headway 

 in order to keep ahead of her seine so as to bail the fish. 



The other undisputed fact, according to the testimony of de- 

 fendant's witnesses, is, it was impossible for the Gerring to drift 

 towards or be found in the position where Captain Knowlton 

 said he found and seized her. This evidence is not contradicted, 

 but is supported by Knowlton, when he describes how the vessel 

 was lying when he saw her and at the time of the seizure. Her 

 head when Captain McKenzie left her, and the position of her sails 

 were the same as when Knowlton seized her — with the wind from 

 the east and fore and mainsails set, with the booms well over on 

 the starboard side and she heading off shore, and the current 

 running W. by S., how was it possible for her to maintain her 

 head to the southward and drift N. by W. ^ N., across and against 

 wind and tide, and in a perfectly straight direction. It is sub- 

 mitted that the testimony of Captain Knowlton as to the position 

 of the Gerring when seized is unreliable. It is quite true that 



