to do so (A) .

A barque was held in fault under sect. 16, though her
fore compartment to the collision bulkhead was full of
â– water, and she was five or six feet by the head. The col-
lision was in the channel, fom- or five miles from land, and
the weather was bad (/).

So where the ship is unable literally to comply with the
law, and, without fault on her own part, parts company
with the vessel with which she has been in collision, those
on board her must do their best to render assistance. In
such a case, if the collision is at night, and she sees rockets
or other signals of distress from the other vessel, it is her
duty, under sect. 16, to return them by similar signals, or
in any way within her power. In The Ermmj Haase (k) a
vessel so neglecting to return signals of distress was held
in fault for the collision under sect. 16.

Although a vessel which fails to render assistance to
another with which she has been in collision breaks the
law, it appears that her right to salvage remuneration,
â– where she renders assistance to a ship with which she has
been in collision by no fault of her own, is not affected by
•36 & 37 Vict. c. 85, s. 16. In a case under 25 & 26 Vict.
c. 63, s. 33, it was held that the right to salvage reward of
a tug, whose tow was damaged in a collision with a third



[h) The Adriatic, 3 Asp. Mar.
Law Cas. 16. The present Act is
more stringent thyn former Acts
(25 & 26 Vict. c. 63, s. 33 ; 34 & 3.5
"Vict. c. 110, H. 9). Other cases
under the Act of 1862 are The Lucia
Jantina and The Mexican, Holt,



130; The Queen of the Oricell, 1 Mar.
Law Cas. 0. S. 300 ; The Eliza and
The Orinoco, Holt, 98.

(0 The Valley 0, Ad. Div. 27th
April, 1887.

(/.) 9 P. D, 81.



NOT STANDING BY.



63



ship, for which the latter was in fault, was not affected by
the statutory enactment as to standing by (/).

The "standins: by" section of 25 & 26 Vict. c. 63, was Collision with
held to apply in the case of a collision with an open fishing-
boat {»i).

It seems that where a collision is caused by the fault of "Proof to the

,. , , , contrary —

a compulsory pilot, the shipowners are not liable, under i. e. that the
sect. 16, by reason of the subsequent neglect by the master not'J;;;j^i''by
to stand by (»). In such a case there would seem to be fault of ship
" proof to the contrary" within the meaning of the second stand%y.
paragraph of sect. 16.

These enactments raising a statutory presumption of Application
fault against (1) a ship which infringes the Regulations, ^^ foreign
and (2) a ship which fails to render assistance, apply to ^^^^^P^-
all ships, whether British or foreign, and whether the col-
lision occurs in British or foreign waters or on the high
seas {o) . There is no express decision upon the point ; but
it has been assumed that sect. 17 applied to a British ship
in collision with a foreign ship, whether in British waters (;;)
or on the high seas {q) ; and to a foreign ship (r) under the
same circumstances.

The wording of 36 & 37 Yict. c. 85, s. 16, favours the
contention that that part of the section which relates to
the presumption of fault applies to foreign as well as
British ships. Both sect. 16 and sect. 17, moreover, would
probably be held to be rules of evidence or procedure, ap-
plicable to foreign ships as part of the lex fori (.s).

(;) The Hannibal and The Queen, Scdmi JJubrovacki, Ad. Ct. March,

L. R. 2 A. & E. 53. 1S78 ; The Eiujlishman, 3 P. D. 18 ;

(w) Ex parte Fcrfluson and Hutch- The Voorwaarts and The Khedive, 5

tmoH, L. R. 6 Q. B. 280. App.Cas.876; and see (w/w, p. 217.

(«) The Queen, L. R. 2 A. & E. [r) The Maffdr/noffh and The Henri/

354, Willard (an American ship), Ad.

(o) The Magnet, L. R. 4 A. & E. Div. 16th Jan. 188."), where the

417. See per Sir R. Philliniore in collision was on the higrh seas ; 'The

Reg. V. Keyn, 2 Ex. D. 63, 65. Love Bird, 6 P. D. 80, wliero, from

The doubt expressed by the Pl■i^•y the name of the ship deemed to be

Council in The Fanny M. CarvUl, 2 iu faidt {The Fan.seuitz), it would

Asp. Mar. Law Cas. 565, 569, ap- seem that she was foreign. The

pears to be not well founded. collision was at the entrance to the

(p) The Vera Cruz (So. 1), 9 P. Skager Rack.

D. 88. («) See as to this, pp. 208, 216,

((/) The British Frincess and The 217, infra. In Four// v. Genera/



64



STATUTORY PRESUMPTION OF FAULT.



Application
of s. 17 to
Queen's ship.



Liability
â– where ship
deemed to be



The application of sect. 17 to foreign sliips is furtlier
considered in a subsequent chapter (/).

Euactnients similar to sects. 16, 17, are in force in several
of the British colonies (k).

In one case a Queen's ship has been held in fault under
sect. 17 (,r). The question whether the Act applies to a
Queen's ship does not appear to have been discussed or
raised. It is submitted that it does not so apply (//).

Where a ship is deemed to be in fault under either
sect. 16 or sect. 17, the owner will usually be liable at law,



Steam Nav. Co., 5 E. & B. 195, 9. 28
of 14 & 15 Vict. c. 79, was held to
be a rule of evidence.

(0 See infra, p. 223. There is
no law in America corresponding
to 36 & 37 Vict. c. 80, s. 17. The
Supreme Court has declared that it
will not "accept blindly an artifi-
cial rrde which is to determine in
all cases whether the navigator is
liable to the charge of negligence
in causing any damage that may
happen:" The Farraffi.it, 10 Wall.
334. But the burden is on a vessel
which has infringed the Statutory
Regulations to prove that the in-
fringement did not contribute to
the collision : The Pennsykania, 19
Wall. 125; The Ariadne, 2 Bened.
472. If, however, such proof is
forthcoming, a ship will recover
full damages although she did
not comply with the Kegulations :
1 Parsons on Shipping (ed. 1869),
596, 597; Chamberlain v. lizard, 21
How. 548, 567; The Grey Eagle,
9 Wall. 505; The Continental, 14
Wall. 345 ; The Sunnyside, 1 Otto,
208 ; The City of IVanhinyton, 2
Otto, 31. And Blanchard v. New
Jersey Steamboat Co., 59 New York
Rep. 292 ; and Whitehall Transport
Co.v. New Jersey, ^c. Co., 51 N. Y.
E-ep. 369 ; and Hojfinan v. Union
Ferry of Brooklyn, 7 Amer. Rep.
435, are decisions of the State of
New York Courts to the same effect.
In The Pennsylvania a steamship
and a sailing ship were in collision.
The latter was not sounding her
fog-horn, but was ringing a bell,
though she was under way. The



Supreme Court refused to admit
evidence that the bell could be
heard further than the horn, and
held that the sailing ship was m
fault for the collision. The follow-
ing passage, which occurs in the
judgment of the Court, shows that
the law ill America as to the effect
of an infringement of tlie Regula-
tions is identical with that of this
country: "Where a ship, at the
time of collision, is in actual viola-
tion of a statutory rule intended to
prevent collisions, it is no more
than a reasonable presumption that
the fault, if not the sole cause, was
at least a contributory cause of the
collision. In such a case the burden
rests upon the ship of showing, not
merely that her fault might not
have been one of the causes, or that
it probably was not, but that it
could not have been." The same
ship was in this country held free
from fault : see The Pennsylvania,
3 Mar. Law Cas. O. S. 477.

{/i) Canada, 43 Vict. c. 29 ; see
The Clara Killam, 2 Quebec L. R
56 ; The Govino, 5 Quebec L. R
57 ; Queensland, 46 Vict. No. 12
South Australia, 44 & 45 Vict. No
237; Victoria, 28 Vict. No. 255
New South Wales, 25 Vict. No. 7
New Zealand, 41 Vict. No. 54
Prince Edward's Island, 30 Vict.
c. 13, s. 2.

(x) The FLoehuny and The Lap-
wing, 7 Ap. Ca. 512.

(y) See 17 & 18 Vict. c. 101, s. 4 ;
25 & 26 Vict. c. 63, s. 1 ; 36 & 37
Vict. c. 85, s. 2.



NOT SIANDING 1!V. 65

and the sliip herself in Admiralty proceedings /// rctn. in fault under
But where the infringement is proved to have been the
act of persons who are not the owner's servants, the lia-
bility is not so clear. In such a case, if the ship is under
charter or demise, it seems that the ship may be liable in
proceedings in rem {z), while the owner is not liable at
law. If tlie infringement is the act of a compulsory pilot,
it would probably be hold that neither the ship nor her
owners are liable under sect. 17 {a). In T/ie Milan [b) it
was held, that fault presumed by law does not affect
owners of cargo, so as to prevent them from recovering
from the owners of the other ship (c).

But sect. 17 affects with the usual consequences of
negligence persons on board the ship deemed to be in
fault, whose duty it was personally, or by their agents, to
comply with the liegulation which has been infringed.
Thus, it was held, that the master of a schooner brought
up in the Mersey with one of her riding lights in an
improper position was, under sect. 17, guilty of negli-
gence contributing to the collision ; and that his widow,
suing under Lord Campbell's Act, could not recover
damages for his death {(().

Where a ship is deemed to be in fault under sect. 17, Rule of divi-

' -P 1

although there is no proof of negligence causing the col- ^^ere shfp
lision, the rule of division of loss applies (i-). And it is deemed to bo
conceived that the case would be the same where sect. 16
is infringed.

{z) See TheLemington, 2 Asp. Mar. had been overruled by The Bernina,

Law Cas. 475; T/ie Tasmania, 13 13 Ap. Ca. 1 ; see infra, p. 108.

P. D. 110; infra, pp. 90, seq. [d) The Vera Cruz' (No. I), 9 P.

(«) The Hector, 8 F.B. 21S. D. 88. This case was reversal

(b) Lush. 388 ; decided uuder uijon another point, 10 Ap. Ca. 59.
17 & 18 Vict. c. 104, 8. 298. {e) The Lapwing, 7 Ap. Ca. 512 ;

(c) This was so held before The Khedive, 7 Ap. Ca. 795 ; and
Thorogood v. Jirgan, 8 C. B. 115, see infra, p. 144.



M.



( «(^ )



CHAPTEE III.

LIABILITY.

Persons The persoii primarily liable in damages to the sufferer by

liable ; the collision is he bv whose negligent act the loss was occa-

actual wrong- r.,, , . • i • i • i j.-u

doer. sioned. The shipowner navigating his own vessel, the

master, mate, pilot or other person in charge of the ship,
who gave a wrong order to the helm (r/), the helmsman
who directed the ship's course wrongly, the seaman on the
look-out who negligently failed to see and report the
approach of the other vessel, may all be sued as wrong-
doers, and are liable for damages (b).

An action was brought against a pilot on board a king's
ship for injury to the plaintiff's ship by the king's ship.
It was held by Lord Kenyon that, though the pilot might
be obliged to act in obedience to the order of the lieutenant
in command of the king's ship, yet the pilot would be
liable, if the collision happened by his personal miscon-
duct. Upon proof that the collision occurred by reason of
an alteration of the helm ordered by the lieutenant, the
plaintiff was non-suited (c) .
Liability of I^ has been said that the master is liable for the negli-

master. ggj^^ and wrongful acts of his crew as well as for his own

acts {(1). His liability as carrier, unless specially limited,

{a) See Storl v. Clements, 1 Peake, 316.

J07. (c) 'Start v. Clements, 1 Peake,

ib) Stort V. Clements, ubi supra; 107.

Smith V. Fms, 2 H. & N. 97; Law- (d) Story on Agency, §§ 314—

son V. Bumlln, 9 C. B. 54 ; were 317; Molloy, 1. 2, c. 3, s. 13. And

actions against pilots. As to the in America it has bcM'n so held:

practice of the Admiralty Division Denlnon v. tieijmour, 9 Wend. 9.
in personal actions, see below, p.



THE ACTUAL WKONG-DOEJi. 67

may extend so far ; but it does not appear to have been
held in any case decided in this country that ho is liable
in tort for wrong-ful acts of the crew(<?). For wilful injury
to another ship by pilot or crew he clearly is not liable (/).

As regards the responsibility of the master when a pilot
is on board, whether by compulsion of law or by the
master's or owner's choice, it seems clear that for a colli-
sion caused by the fault of the pilot the master is not
answerable if the pilot has been placed in charge of the
ship properly and in the ordinary course of navigation {(j) .

The statutory limitation of liability {h) does not apply to ^^ limitation
protect an owner, or a part owner, by whose actual f aidt or the actuai
with wliose privity the collision occurred. Such an owner is ""rong-doer.
liable for full damages ; and if the proceeds of the sale of
the shi}") arrested, or if the statutory amoimt of the owner's
liability, is insufficient to recompense the sufferer by the
collision, the owner by whose actual fault or privity the
loss was occasioned is liable for the deficiency (/).

It will be seen below (/.â– ) that in the case of a collision
with one of her Majesty's ships, by the fault of those on
board her, the actual wrong-doer is alone answerable in
damages.

The actual wrong-doer, being commonly a seafaring man Liability of
of small means, can seldom give adequate redress, and *^*' ^^'P'
may be not worth suing. In such cases the substantial

{e) See Aldrich v. Simmonds, 1 statute limiting owner's liability.
Stark. 214; Oakleij v. Speedy, 4 (/) See The Triiow, 3 Hag. 114.

Asp. M. L. C. 134; lUackie v. lu this case (decided under 53 Geo.

Stcinhridfje, G C. B. N. S. 894. The 3, c. 159), after decree condemning

contrary has been held in a Vic- the owner (who intervened in the

torian Court: Clmiey v. Harrison, suit) and his shi^j and freight, the

4 Victoria, L. R. 437 (L.) ; Stac- ship was sold, and the proceeds

pooh V. Bctridge, 5 Victoria, L. R. were insufficient to pay the full

302 (L.). amount of damages and costs. A

(./") Boicchcr V. Noidstrom, 1 monition was decreed against the

Taunt. 568 ; McManus v. Crickett, owner, who was in charge of the

1 East, 106. ship at the time of the collision, to

{g) Kent's Comm. vol. 3, § 176. pay the deticiency, and, upon his

As to the respective duties of failing to do so, he was imjirisoued

master and pilot, see below, p. 243. upon attachment.

(A) Sec below, p. 167, as to the (/.) Infra, p. 102.

r 2



68



LIABILITY,



The sliip-
owner is
liable, not
qucL owner,
but only as
employer of
the actual
wrong-doer.



remedy is to be sought, either in Admii-alty against the
ship, or in a common law court against the emjjloyer of
the actual wrong-doer. We propose to consider first the
liability of the employer or master of the actual wrong-
doer (/).

In most cases the owner of the ship is the employer of
those on board and in charge of her, and is liable for their
negligent acts. So generally is this the case that it has
been held that, in the absence of proof to the contrary,
those in charge of a ship will be presumed to be in the
employment of her owners (;m). And prima facie the
registered owners are the real owners of a ship. But the
register is not conclusive evidence of ownership ; and if
it is shown either that the actual owner is a different
person from the registered owner, or that the registered
owner is not the employer of the crew or person causing
the collision, the presumption as to the liability of the
registered owner is rebutted, and the actual owner or other
person employing the wrong-doer is alone liable.

It must be clearly understood that the liability for
damage by a ship does not attach to her owner qua owner.
It is only as master or employer of the persons whose
negligent act caused the damage that he incurs any lia-



(/) Whether by the civil law the
shipowner was liable for a collision
caused by the fault of the master
or crew seems to be a disputed
point. Bynkershoek, Qusest. Jur.
Civ. 1. 4, o. 23, contends that he is
not liable : ei [magistru) autem man-
datum non est aliorum naves dolo vel
culpa obruere ; quod si fecisset, ipse,
quod dedit luat, non exercitor ; so also
Bynk. Observationes Jur. Rom.
1. 4, c. 16. On the other hand,
Voet, ad Pandect. 14, 1, 7, makes
the shipowner liable : quod si deli-
querit [magister) si quidem in ipso
officio cui erat propositus, dum forte
datd operd vel culpa atque impru-
dcntid manifestd in naviffium alicnum
inippffit sunin . . . cxercitores ex
quasi delicto teneri constat. Huberi



Praelect. Jur. Civ. 14, 1, 8 ; 3 Kent's
Comm. 161 ; to the same effect.
Cf. also, per Ware, J., The Rebecca,
Ware, 188; The Thche, ibid. 263,
268. The exercitor (charterer, for
whose benefit the ship was worked)
was generally liable for the acts of
the master, and not the dominus
(general owner). The law on the
subject will be found D. 4, 9 ; D.
14, 1; D. 9, 2; D. 44, 7, 5; D. 45,

2, 3, 1 ; D. 47, o, 1 ; J. 4, 3 ; Gaius,

3, 218, 219.

(>«) See Joyce v. Capel, 8 C. & P.
370 ; llibbs v. Ross, L. R. 1 Q. B.
534, and cases there cited ; Frazer v.
Cuthbertson, 6 Q. B. D. 93, 98 ;
ChasteatmetiJ\ . Lehnige, 7 App. Cas.
127.



OF SHIPOWNER FOR ACIS OF CHEW. 00

Lilitj. '' Tlio (jwuer would ni)t he lialilc merely Localise
he was owner, or without showing tliat those uavigating
the vessel were his servants "(y/) •

It is scarcely necessary to observe that the liability of
the shipowner for the acts of the master and crew does
not dej^end upon their being on board at the time of the
collision (o) .

It is further necessary, in order to fix the shipowner The act com-
with liability, that the negligent act complained of was an must1te°an
act of the servant acting within the scope of his employ- ^^t oi the
nient(7;). In the ordinary case of a collision occurring in within tlie
the course of the employment of the ship for the o^vner's ^^"^^^ "* ^^\

. . , employment,

benefit no ditficulty arises upon this point. But when the

ship is engaged upon a voyage or duty not authorized

by the owner the question arises whether those on board

are acting within the scope of their employment by the

owner.

Where a master, ^\•ithout any instructions from his
owner as to towing disabled ships, undertook to assist a
disabled ship into port, and whilst attempting to get her
in tow negligently ran into and injured her, it was con-
tended that the ow^ler was not liable, because the master
in assisting the disabled ship was not acting within the
scope of his employment. It was held that he was so
acting, and that his owner was liable («7).

Wilful, malicious, or criminal acts of the master and Owners not
crew can seldom be within the scope of their employment -^\u^\ ^^y^.
so as to make the shipowner liable. Thus for a collision lit'ious and
caused by the master and crew maliciously driving their of their

servants.

(w) Fer Lord Cairns, C, Jtitrr {p) As to wliat acts are within

JJ'ear Comminsivurra v. Adaiusoii, 2 the scope of the servant's cniploy-

App. Cas. 743, T-'il ; and prr Lord ment, see 1 .Smith's L. C. 'Jth cd.

Bhickbuni, Simpson v. Thoinpsu)i, 3 394 ; and per Willes, J., Jiarwick

App. Cas. 279, 293 ; Hibbs v. Eosn, v. English Joint-Stock Jiaiik, L. R.

ubi supra. 2 Ex. 269, 2G5.

(o) See The Northampton, 1 Sp. {q) The Thetis, 3 Mar. Law Cas.

E. & A. 152 ; Jlibbs V. Moss, ubi 0. S. 357.
supra ; The Kepler, 2 P. D. 40.



70



LIABILITY.



Owner's lia-
bility where
the ship is
under charter.



sliip agaiust another the owner will not be liable (r). So
where those on board a ship wilfully cut another ship
adrift, and the latter suffered damage in consequence, it
was held that the owners of the former were not liable
at law, and that their ship covdd not be sued in Ad-
mu-alty (.s) .

But owners are liable for the acts of their servants done
in the course of their service and for then- master's benefit,
though no express command or privity of the owner be
proved (/). And owners are answerable for the manner
in which their servants navigate their ship, though the
wrongful act of the servant is one against which the
owners have given express orders {k) .

Infringement of the Statutory Regulations for Prevent-
ing Collisions at Sea is a misdemeanour, and damage
caused thereby is deemed to have been caused by the
wilful default of the person in charge of the deck {v).
But owners are not relieved from liability for the acts of
tlieir servants in such cases (.^â– ) ; nor are they the less
liable because the negligence of tlieir servants is criminal,
and amounts to manslaughter (y) .

Where a ship is being worked by a charterer or hirer,
Avho appoints and pays the officers and crew under a



(/•) The Druid, 1 W. Rob. 391 ;
3IcManas v. Crickett, 1 Ea.st, lOG ;
Croft V. Alisoti, 4 B. & Aid. 590.
In The Seine (Sw. 411) this defence
was pleaded. There is some diffi-
culty in reconciling these with
later cases (carriage accidents),
Limpus V. General Omnibus Co., 1
H. & C. 526 ; Paye v. Lefries, 7 B.
& S. 137 ; but character of the acts
in the carriage cases is substanti-
ally different from that in the ship
cases. For an instance of a wil-
ful attack upon another ship by a
tug, see L. K. 1 A. & E. 64.

(s) The Ida, Lush. 6 ; the ship
was foreign, and the collision was
in a foreign river ; and see as to
this case, 2^er Sir R. Philliuiore,



L. R. 3 A. & E. 47. Cf. Waltham
V. Mulgar, Moore, 776, infra,
p. 93.

[t) See per Willes, J., Barwick v.
English Joint-Stock Hank, L. R. 2
Ex. 259, 265.

(«) LinipuH V. London. General Om-
nibus Co., L. R. 1 H. & C. 526;
Belts V. l)e Vitre, L. R. 3 Ch. 441.

{v) 25 & 26 Vict. c. 63, ss. 27, 28.

(,):] It was so held under the pro-
visions of a former Act : Jlie Seine,
Swab. 411. See also Poulton v.
London and South Western Rail. Co.,
L. R. 2 Q. B. 534 ; Grill v. General
Iron Screw (Jollier Co., L. R. 3 C. P.
476.

[y) See The Franeonia, 2 P. D. 8,
163 ; Itcf/. V. Keyn, 2 Ex. D. 63.



OF sHir uNDEii cii\iit?:r. 71

charter-party or agroemont which amounts to a domisc of
the vessel, tlio owner is not liable at law for damage she
may do while in the possession of tlie charterer. But if
the owner remains in possession of the ship, either by
himself or his agents, he is liable, though she is under
charter to another. AVhero a ship was chartered to a
person for six months at 20/. a week for the carriage of
passengers and goods as he should direct, the charterer
paying all disbursements and the wages of officers and
crew, and the owners keeping the ship in repair, it was
held that tlie owners were liable for a collision caused by
the fault of those on board their ship (;:).

In Bahjell v. Ti/re)-{a), H., the lessee of a ferry, hired a
tug with her master and crew to assist in working the
ferry for a day. A person who had contracted with H.
for a season ticket was injured, whilst on board the tug, by
the negligence of her crew, who were the owners' servants.
It was held that he could recover against the owners, and
that his right against them for the negligence of their
crew was independent of his right against H. upon the
contract.

It has been doubted whether the owners of a ship which
is manned by a master and crew who are the owners'
servants, but who, by the charter-party are bound to obey
the orders of a third person who is not the owners' servant
are liable at law for damage done by the ship while acting
imder the immediate orders of such third person. Upon
principle it is difficult to see why the owmers, by placing
their servants under the control and orders of a third
person, should escape liability for their wrongful acts.
And in Fldclter v. Bmddick {b) Sir J. Mansfield held the
owners liable in such a ease.

[z) Fenton v. BuhUn Steam Packet power to dismiss the crew and

Co., 8 Ad. & Ell. 835. The decision officers,
went upon the words of the charter- {a) Ell. Bl. & Ell. 899.

party; but it was proved that the [h) 2 N. R. 182. This case

owners had appointed and had is not satisfactory. Tlic deci-



72



LIABILITY.



Owner can
recover over
against actual
â– wrong -doer.



Owner not
liable for the
negligence of
one to whom
the ship is
demised.



But where a vessel was one of a fleet of transports
engaged in the service of the Grovemment upon an expe-
dition of war, it was held by Cockhurn, C.J., that it was
an incident to such an employment that all the vessels
should obey the orders of those in command of the expe-
dition ; and that if one of them damaged another of the
fleet, whilst acting in strict obedience to such orders, her
owners would not be liable (c) .

Where a Thames barge was lent by her owner to a
person, who navigated her with his own men, it was con-
sidered clear by Best, J., that the owners were not liable