Timaru Harbour Board, 62 L. T.
N. S. 913 ; 15 Ap. Ca. 429.
(»?) HoJman v. Irvine JTarhour
Trustees, 4 Sess. Ca. 4th ser. 400
(Rettie^.
(w) E.g., 25 "Vict. c. 29 (Local),
s. 43 (Brean Down) ; 25 Vict. c. 31
(Local), s. 65 (Berwick-npon-
Tweed).
[o) The Mentor, 1 C. Rob. 179 ;
The Athol, 1 W. Rob. 374; The
Voleano, 2 W. Rob. 337 ; The Bir-
hrnhead, 3 W. Rob. 75 ; and The
Bcllcrophon, 3 Asp. Mar. Law Cas.
58, are instances of actions against
Queen's ships.
{p) Nicliolson x.Mounsey, 15 East,
384. See The Ci/hcIr, 3 P. D. 8 ;
Wright V. Lethbridge, 63 L. T. N.
S. 572 (an action against a Queen's
harbour master).
[q) tStort V. Clements, 1 Peakc,
ni7.
riLOTAOE AUTHORITIES ; QUEEn's SHIPS ; r.VRT OWNERS. 103
tlio Government, tlie superior officer is not answerable for
the acts of his subordinates.
Her Majesty's ships and public ships of foreign states
are not subject to arrest (r). But they have frequently
submitted themselves to the jurisdiction of the Admiralty
Court, and upon so doing they subject themselves to the
ordinary rules of law(.s).
Whether \'essels belonging to a civil department of the
Government, and employed for the special purposes of
the department, are entitled to the immunity from arrest
enjoyed by ships of war seems doubtful (t).
Owners of cargo on board a ship in faid.t for a collision Liability of
are not liable for the damage done by the ship ; but we ^^^^0'!" "
have seen that the cargo may be aiTested in order to secure
for the benefit of the sufferers in the collision the payment
of freight due to the shipowner (^«).
The shipoAvner is not discharged from his liability by the Shipo-mier
sinking of his ship(ir), though in such a case no action in ghipi'ost. °
rem can be brought in Admiralty,
Part owners of a ship in fault for a collision are at law Liability of
,,,.,, • • I 1 • ■I 1 part owners
severally liable as jomt wrong-doers, or ]omt employers and joint
of the actual wrong-doer. One of them may be sued wrong-doers,
alone {//) ; but if judgment is recovered against one part
{)â– ) The Athol 1 W. Rob. 374 ; (.r) The Xormandy, L. R. 3 A. &
The Cumxs, 2 Dods. 4G4. As to E. 152.
ships of a foreign Sovereign which (y) 3[ltcheU v. Tarhntt, 5 T. R.
are engaged in trade, .see below, 649. As to the liability of part
p. 220. In America, Government owners by the civil law, see supra,
ships are subject to Admiralty pro- p. 68, note (Z). By the maritime
cess: The Siren, 7 Wall. 152; The law a part owner was liable only
FidelUij, 16 Blatch. 569. to the extent of his interest ia the
(a) See The Frintz Frederic]:, 2 ship : Emerigon, Contr. a la gi-osse,
Dods. 451 ; and iw/rr/, p. 222. For Ch. EV., s. 11; Grotius de jm-.
the practice, in case of collision belli et pacis, lib. 2, ch. 11, s. 13.
with a Queen's ship, see Williams Semble, this was once the law of
and Bruce, Ailmiralty Practice, 2nd the English Admiralty ; seeANems
cd. pp. 82, 250, note (A); Maud and v. Marsh, 2 Ventr. 181; Gull c.
Pollock on Shipping, 4tli ed. 615. ('arsicell, infra, p. 148 ; and is now
(t) Sec 'The C;/belo, 3 P. D. 8; the law in France: Codes Aunotees,
The Lord Jlobarf, 2 Dods. 103. Sirey et Gilbert, infra, p. 183.
(m) ISupro, p. 81.
104
LIABILITY.
Contribution
amoujirst
CO-OWllCl'!'.
CoUiBion
Ijetween two
ships owned
by the same
persons.
owner, it seems that no action can bo brought against the
others, though the judgment is unsatisfied (~).
The rule that tliere is no contribution between wrong-
doers does not prevent a part owner wlio has been com-
pelled to pay the w'holo of -tlie damages from recovering
in an action for contribution against his co-owners (a) . And
money so paid for damages, where the owner's liability is
limited, may be brought into account as money disbursed
for the use of the ship {b).
If a collision occurs between two ships belonging to
the same owner, his only remedy is against the actual
wrong-doer. And the case seems to be the same where the
two ships have one or more part owners in common.
But the owners of cargo, or passengers, on board either ship
can recover in an action of tort against the shipowners,
subject to this, that where both ships are to blame, and the
shipowners are protected by the terms of their contract
against the negligence of their servants, the right to
recover is limited to half the loss sustained, and that where
(as is not ordinarily the case) the protection extends to the
negligence of the shipowner's servants, as well on board
the carrying ship as on board other ships of the same
owners, there is no right to recover at all (c).
(z) lirinsmead v. Harrison, L. R.
7 C. P. 547. As to the several
liability where two ships are sued
in Admiralty, see The Atlas, 3 Otto,
302 ; TJw Juniata, ibid. 337 ; The
Alabama and The Gamecock, 2 Otto,
695 ; see infra, p. 196. As to the
remedy against liis co-owner of a
part owner who has f::iven a bond
for the release of his ship, see
below, p. 324.
(«) 1 Smith's Lead. Cas. 9th ed.
p. 171.
(J)) 17 & 18 Vict. c. 104, s. 515.
{e) See Chartered Mercantile Bank
of India, China, and London v.
yetherlands India Steam Navir/atimi
Co., 10 Q. B. D. 521. The law
as here laid down, limiting the
damages recoverable, docs not de-
pend upon the doctrine of Thoro-
(jood V. Jiri/an, 8 C B. 115, but
upon the ancient practice of the
Admiralty Court. See The Milan,
Lush. 388, and per Lindley, L. J.,
10 Q. B. J). 545. It would there-
fore seem to be unaifected by the
decision in The Ihrnina (No. 2), 12
P. D. 58 ; 13 App. Cas. 1. deeper
the M. R., 12 P. D. at p. 83,
and infra, p. 143. See also The
Bcrnina (No. 1), 12 P. D. 36 (where
the shipowners were not protected
against the noghgcnce of their
servants, and were liable to cargo
owners in contract), and infra,
pp. 284.
co-owners; contribution; ships of same owner. 105
various cases.
The liability o£ the shipowner as carrier upon the con- Liability in
•/ i- ^ van nil H nawf!
tract of carriage for a collision whereby goods or passengers
are injured (d) ; in respect of collisions abroad (e) ; in
respect of collisions witli or between foreign ships, or in
foreign waters (./') ; of collisions where one or both ships
are in tow (rj) ; where three or more ships are involved in
the collision {//) ; where noghgence on board one ship
causes a collision between two others, or injures another
ship (?) ; and in respect of damage done to a pier or har-
bour works (k), are considered elsewhere.
(d) p. 281, seq. (/O p. 26.
le) p. 210, seq. (i) p. 27.
(/) p. 208, seq. (/.) pp. 73, 85, 178, 211.
(ff) p. 185, seq.
( 106 )
CHAPTER IV.
PERSONS ENTITLED TO RECOVEll.
All persons injured in their persons or property in a
collision caused by the fault of one or hotli ships, and who
have not themselves or through their agents been guilty of
negligence causing the loss {a), are entitled to recover
damages. Such persons are usually of one or other of the
following classes : owners of the injured ship, whether they
are' registered as ovrners or not [h) ; passengers, master, or
crew losing their clothes or effects {c) ; owners or con-
signees of cargo on board either ship ; persons entitled
under Lord Campbell's Act to recover damages for relatives
killed (f/), or persons on board either ship who are hurt in
the collision (c) ; the indorsee of a bill of lading, even
though the cargo has been sold (,/') ; bailees, and other
persons having a special property in, or temporary pos-
session of, the ship or cargo (g).
Actions by It seems that part owners of the injiu-ed ship might
?o^o*lidation recover damages for their respective losses in successive
of actions.
(fl) As to the cli\-ision of loss in
cases -where both ships are in fault,
see below, p. 125.
(b) TheIlos,Sw. 100.
(e) The Cumberland, 5 L. T. N. S.
496. As to a passenger by ferry
in charge of his own mare, sec
WiUouqhhij V. irorridrje, VI C. B.
N. S. 742.
[d) 9 & 10 Vict. c. 93 ; infrn, pp.
122, 144. A posthumous child niay
recover for the loss of its father :
The George and Richard, L. R. 3 A.
& E. 46G.
{e) As to members of the crew so
hurt, see The Borodino, 5 L. T.
N. S. 291 ; Tai/lor v. Bcwar, 2 B.
& S. 58.
( /•) 2he Marathon, 40 L. T. N. S.
163.
iff) The Minna, L. E. 2 A. &
E. 97. In an American case full
damages were recovered for a col-
lision, although all interest in the
injured ship had been transferred
to a foreigner, whereby the ship
was forfeited to the State : 'The
Xahob, Brown, Ad. 115.
TERSOXS ENTITLED TO KI'.COVEIl. 107
actions (//) ; and tho defendant would not, it seems, be
entitled to have tho other co-owners added as plaintiffs, at
any rate without their consent in ^^Titing, nor to have tlie
proceedings stayed until tliis was done, so that he should
not be vexed by more than one action (/). If a part owner
dies after the collision and before action brought, the right
of action survives to the other part owners (/.•).
The underwriters upon a ship. A., sunk by collision Underwriters
_^ , . ., . must Kuo lu
with B., cannot sue B. or her owners m their own names, name of
Their only right of action is by subrogation to the rights assured.
of the owners of A. ; and they must sue in the names of
the owners of A. (/).
There was formerly doubt whether a person injui'ed on Person or
owner of
board a ship which is herself in fault can recover at common goods on
law. This doubt, originating in the well-known case of J'^'^f^yif j^^^
TJtorogood v. Bnjan{m), has lately been set at rest by the recover.
House of Lords in The Bernina (No. 2) {»). TJiorogood v.
Bnjan was there ovemded. It had never been recognized as
law in the Court of Admiralty, Dr. Lushington haAdng
held that, Thorogood v. Bryan notwithstanding, the owners
of cargo on board a ship in faidt could recover half their
loss against the other ship being also in fault (o).
Thorogood v. Bryan was decided in 1849 by a very Tlwrogooi \ .
strong Court (Coltman, Yaughan, Williams, Maule, Cress- '^''"'
well, JJ.). It held that the representatives of a pas-
senger in an omnibus, who was killed by the combined
(/t) Achlison V. Ovcrcnd, 6 T. E,. 8th ed. 31 C<. See also Armstrong
766; SedffWorth.v. Ovcrend, 7 T.H. v. Lancashire ^- Yorkshire Hail.
280. C'o., L. R. 10 Ex. 47 ; Adams
(«) Ord. XVI. rr. 2, 11. Jackson v. Glasgow ^- S. JF. JiaiL Co., 3
V. Kriiger, 54 L. J. Q. B. 446; Sess. Cas. 4th ser. 215.
Trgon v. The Xational Provident {n) Nom. Jfills v. Armstrong, 13
Institution, 16 Q. B. D. 167. App. Cas. 1 ; in Courts hclow, 12
(A-) See liexv. Collector of Customs, P. D. oS ; 11 P. D. 31; followed
2 M. & S. 225 ; Martin v. Crotnpe, in Mathews v. London Street Tram-
1 Ld. Raymond, 340. wags Co., 58 L. J. Q. B. 12.
{I) Simpson v. Thompson, 3 App. (o) The Milan, Lush. 388 ; The
Cas. 279. <^''.y of Manchester, 5 P. D. 3 ; il>,
(m) 8 C. B. 1 15 ; CattUn v. Hills, 221.
i/iid. : 1 Smith's Leading Cases,
108 PERSO>:S ENTITLED TO RECOVER.
negligence of the driver of the carrying omnibus and
the driver of another omnibus, coukl not recover against
the employer of the latter driver. The negligence in the
carrying omnibus consisted in setting the passenger down
in the middle of the street, and not drawing up to the
kerb ; the negligence in the other omnibus was carelessly
driving over the passenger after he had been set down.
The ground of the decision was that the passenger was
"identified" with the driver of his own omnibus in the
matter of negligence, and therefore, having by his own
(/. e. his driver's) negligence partly caused the accident, he
could recover nothing. This case, though often questioned,
did not come before a higher Court for review until 1888,
The Bernina. when Tlic Beniina (nom. IliUs v. Armstrong) came before
the House of Lords. In the Com-ts below, Butt, J. (11
P. D. 31), had reluctantly followed Thorogood v. Bnjan ;
the Court of Appeal (12 P. D. 58) reversed the decision
of Butt, J. ; and the House of Lords (Lords Herschell,
Watson, Macnaghten, and Bramwell, the latter with some
doubt), affirmed the decision of the Court of Appeal. The
facts in Tlie Bernina were that Toeg, a passenger, and
Armstrong, an engineer on board The Bushire, were killed
in a collision between T//e Bernina and The Bushire, caused
by faults in both vessels, but without fault in Armstrong
or Toeg. It was held that the representatives of Toeg
and Armstrong could recover full damages against the
owners of The Beniina. Lords Herschell and Watson de-
livered opinions strongly against the identification theory
upon which Thorogood v. Bri/an was decided. Lord Bram-
well was of opinion that Thorogood v. Brgai/ was rightly
decided upon a point of pleading, namely, that whereas
the plaintiff alleged that the defendant's negligence caused
the injury, the fact was that the accident would not have
happened but for the negligence of the driver of the carry-
ing omnibus. Having been decided upon the point of
pleading, Lord Bramwell held that Thorogood v. Bri/an
PASSKXGKRS ; rUKW. 100
was not an authority in the case of Tlie lU'ruiini. As to
the " idontitication " theory, Lord Braniwcll tlioiiglit that
it was intended to express the idea that a person who
contracts with another to be carried witliout negligence
has not a right of action against a third party by whose
negligent act, combined with a separate negligent act of
the contracting carrier, the passenger is injured. This
idea the learned lord found difficulty in deciding to be
unfounded in law. lie considered that the decision of the
House involved the overruling of Waitc v. North Eauterii
Rail. Co.{p), as well as Tlioro(jood v. liri/an, so far as the
latter case depended upon the identification theory.
A servant cannot recover against his employer for shipowner's
injury sustained in the course of his employment through J^y^^._^ ^
the negligence of a fellow-servant {q). It seems, therefore,
that the ship's ofiicers and crew cannot recover against the
shipowner for injury suffered in a collision caused by one
of themselves (r), excex)t, perhaps, where the wrong-doer
is the captain (.s). But a compulsory pilot is not a servant
of tlie shipowner, and the rule above stated does not
prevent him from recovering against the owner [f).
(p) E. B. & E. 719. 43 & 44 Vict. c. 42, s. 8 ; 38 & 39
{(j) Priest/!/ V. Foichr, 3 M. & AY. Vict. c. 90, ss. 10, 13.
1 ; Chitty oil Contr. 10th ed. 537. (r) Lvddijy. Gibson, 11 Sess. Cas.
See Wikoti V. Merry, L. R. 1 Sc. 3rd ser. 304.
App. 326. The Employers' Liabi- (.s) llamsay v. Quinn, Ir. Rep. 8
lity Act, 1S80, does not apply to C. L. 322.
seamen or apprentices to -sea ser- (<) Smith v. Steele, L. R. 10 Q.
vice, or, it seems, to an officer. See B. 125.
( no )
CHAPTER V.
DAMAGES.
damages may-
be recovered ;
general rule.
Restitutio in
integrum.
The wrong-doer in a collision is liable for all the reasonable
consequences of bis negligence — " sucli damages as flow
directly and in the usual course of things from the wrong-
ful act " {a). This is the general principle, and where the
damages claimed are in respect of loss or injury to ship or
goods, occurring at, or immediately after, the collision,
there is little difficulty in applying the rule. But where
the loss, though consequent upon and connected with the
defendant's negligent act, was not immediately caused by
it, there is often great difficulty in determining whether
damages in respect of such loss can be recovered as having
been caused by the negligence. The question is closely
connected with that discussed in a former chapter as to the
legal consequences of negligence.
Assuming that there is a good cause of action, there is
a difficulty in many cases of determining the measure of
damages, and the proper items to be taken into account in
estimating them. As similar facts giving rise to similar
claims for damages are constantly recurring in collision
actions, it Avill be convenient to collect the decisions upon
this subject.
The general rule was thus stated by Dr. Lushington in
(a) Ter Bowon, L. J., The Arrjcn-
tino, 13 P. D. 191, 201 ; iu Dom.
Proc. 14 App. Cas. 519; The Not-
tinrj Hill 9 P. D. 105; Victorian
Railwaij Commissioners v. Coull<is, 13
App. Cas. 222. The "usual course
of thing-.s " includes the probable
and reasonable conduct of those on
board a ship in collision : The City
nf Lincoln, U P. D. 15, 18.
])AMAGES.
Ill
The Clarence (b) : — " The party who has sustained a damage
by collision is entitled to Le put, as far as practicable, in
the same condition as if the injury had not been suffered."
This appears to be the meaning of the phrase used in some
of the cases that the sufferer is entitled to rest/ditto in
infefjrum {c) . There is no difference between the Admiralty
and common law rules as to what damages are recover-
able {(l). lie is equally entitled to be paid the cost of the
repairs, though he has become bankrupt since they Avere
executed, and has not paid the shipwright who executed
them (e).
The owner of a ship "UTongfully injured in a collision is Cosh c)f
entitled to have her fully and completely repaired ; and if
the necessary consequence of this is, that the value of the
ship is increased, so that the owner receives more than an
indemnity for his loss, he is entitled to that benefit. No
deduction is made from the damages recoverable on account
of the increased value of the ship, or the substitution of
new for old materials (/) . In this respect the OAvner of a
ship injured by collision is in a different position from an
owner claiming his indemnity under the ordinary marine
policy of insurance {{/) .
If the ship is totally lost the owner is entitled to recover interest on
her market value at the time of the collision (/•), with the ship, if
interest from the day of the collision if the ship was not •'^he is lost,
earning freight. If she was earning freight he is entitled
to the estimated value of the ship at the end of her voyage,
{b) 3 W. Rob. 283, 285.
(c) E.ff., by Dr. Lushington in
The L{t{exibU', Swub. 200; The
Cbjde, Swab. 23 ; The Ironmaster,
Swab. 441 ; The Columbus, 3 W.
Eob. 158; The Gazelle, 2 W.
Rob. 279, 280 ; cited by Sir R.
Phillimorc in The Hallet,, L. R. 2
A. & E. 3, 7 ; and see 1 P. D. 471.
{(l) The Argenfmo, 13 P. D. 191,
195, 200.
(f) The Endeavour, 62 L. T. N. S.
840.
(/) The Factolus, Swab. 173 ;
The Gazelle, 2 W. Rob. 279 : The
Bernina (No. 3), 6 Asp. M. L C. 65 ;
and see 'The Star of India, 1 P. D.
466, 471.
{(j) As to the rule of "one-third
new for old" in insurance cases,
see Lohre v. Aitchison, 3 Q. B. D.
558; on app., 4 App. Cas. 755.
(/,) The Clyde, Swab. Ad. 23;
The Ironmaster, ibid. 441 ; The
Columbus, 3 W. Rob. 158 ; The
Clarence, 3 W. Rob. 283.
112
DAMAGES.
On freight, if
freight was
being earned.
Loss of
injured ship
after collision
presumed to
have been
caused by-
collision.
too-etlier with the freio-]it she woukl have earned, less the
cost of completing- the voyage, and interest on the whole
from the i^rohable end of the voyage. If payment is made
before that time an allowance is made for discount. If,
however, the plaintiff's loss exceeds the amount of the
defendant's statutory liability, interest runs from the date
of the collision, whether freight was being earned or
not (i) .
The Admiralty practice as to allowing interest on
damages applies to common law actions which, before the
Judicature Acts, the Admiralty Coiu't had not, but which
the Admiralty Division has, jurisdiction to entertain ; also
to actions transferred by consent to the Admiralty Di-
vision [J).
"Where the ship is damaged but not sunk in the collision,
and she afterwards receives further injury or is totally lost,
the presumption ordinarily is that the subsequent injury
or loss was caused by the defendant's negligence, and the
burden is upon the wrong-doer in the collision to prove
that it was not so caused.
Where a ship was partially disabled in a collision for
which she was not in fault, and subsequently drove ashore
in consequence of the parting of her cable, it was held that
the ship in fault for the collision was liable for the loss by
the stranding (/.). In this case Dr. Lushington said : " It
is admitted that T/ie Pemhcr is to blame for the collision,
and the consequence of this is, that all the damage arising
from the collision must be borne by The Poi^iher, unless it
can be shown by clear and positive evidence that any part
of that subsequent damage arose from gross negligence or
(i) For a full statement by Sir
R. Phillimore of the principle upon
which compensation to the injured
party is made in cases of collision,
see The Xorthumhria, L. R. 3 A. &
E. 6, 12 ; see also Tlie Canada,
Lush. 586 ; The Clyde, Swab. 23 ;
The Ironmaster, ibid. 44 ; The Co-
himhus, 3 W. Rob. 158 ; The Cla-
rence, ibid. 283.
{j) The Gertrude; The Baron
Aberdare, 12 P. D. 204; 13 P. D.
10.5.
(/.) ThePensher, Swab. Adm. 211,
213 ; The Govino, 5 Quebec, L. R.
57.
DAMAGES. 113
great -want of skill on the part of those on hoard the vessel
damaged."
In another case (/), The Mellonct, a ship claiming
damages against the ship with which she had been in
colHsion, liad gone ashore after the collision, in con-
sequence of having been disabled in the collision, and was
totally lost. For the other ship it was contended that
The Mcllona need not have gone ashore if she had been
hove to, and proper skill had been shown by those on
board. It was held that prima facie the loss was attribut-
able to the collision. Dr. Lushington said that where one
vessel is found in fault for a collision, and the other is
subsequently lost, the presumption of law is that the latter
was lost in consequence of the collision. " In all questions
of this descrij)tion that is the prima facie presumption; and
great, indeed, would be the inconvenience, and still greater
the difficulty, if, in all cases of this kind when the vessel
did not go dowTi immediately, but was subsequently lost,
tbe Court had to enter into an investigation whether all
the measures adopted on board the damaged vessel were
right, or whether, if other measures had been pursued, the
vessel might not have been saved " {m).
In another case a ship was run into whilst brought up
and riding with two anchors down. One cable having
parted in the collision, the other failed to hold her, and
she drove ashore. It was held that the loss from her
going ashore was recoverable as damages in the collision
action (n).
So where, bad weather having come on, the injured ship
went ashore twenty-one hours after the collision, the
representatives of some of the crew who were cbowned,
but who might have been saved if they had gone on board
(0 The Melloua, 3 W. Rob. 7, 13. («) The Despatch, 14 Moo. P. C.
(in) See also The Linda, Swab. C. 83 ; The Maid of Kent, 6 P. D.
Ad. 306; 30 L. T. 234; 4 Jur. 178.
N. S. 14G.
M. T
114
DAMAGES.
Those on
board the
injured ship
must exhibit
ordinary skill
and courage
in standing
by her.
They must
take assist-
ance, if
necessary.
Unjustifiable
abandonment.
otlier vessels wbicli offered assistance after the collision,
were held entitled to recover against the wrong-doing
ship (o).
A steamship in the North Sea ran into and cut off the
quarter of The Albatross, a barque. The barque's binnacle
compass, log line, log glass, and working charts were lost
in the collision, and her hull was damaged, so that she was
partly unmanageable. Those on board tried to take her
into the Thames with a spare compass. Without negli-
gence on their part, and in consequence of the loss of their
chart and the damaged condition of the hull, she went
ashore and was lost. It was held that the steamship
owners were liable for her loss {p).
But the fact of a ship being injured by the negligence
of another does not justify those on board in neglecting to
take all reasonable measures to save the ship, and lessen
the effects of the collision. They must exhibit ordinary
courage in standing by their vessel, and show proper skill
and seamanship according to the circumstances of the case.
The Court, however, will make reasonable allowance for
the excitement which usually attends a collision, and those
on board will not be expected to be so acute in their judg-
ment, or to act with the same skill and coolness, as if there
had been no collision ((/).